author: SMITH, Justice. CULVER, Justice

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Petitioner v. J. T. MURPHREE, Respondent.
    No. A-8548.
    Supreme Court of Texas.
    May 23, 1962.
    Rehearing Denied June 20, 1962.

      Crenshaw, Dupree & Milam, Lubbock, Max Addison, Lubbock, with firm, for petitioner.
    Splawn & Maner, Lubbock, Tom H. Davis, Austin, for respondent.

      . “See. 12c. If an employee wlio has suf- .. ferejl a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such' injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; * *

   SMITH, Justice.

This is a Workmen’s Compensation case. Murphree’s petition alleged a general injury to his back and that such injury occurred on April 30, 1959, while he was attempting to lift a tractor engine head while employed by Meadow Implement Company. Murphree pleaded that as a result of such injury he was totally and permanently disabled. He further pleaded, in the alternative, that the injury of April 30, 1959, aggravated a previously existing physical condition “and that as a result of said accident [April 30th] and reinjury of his prior existing physical condition he is totally and permanently disabled from doing manual labor all within the terms and provisions of the Workmen’s Compensation Act of Texas.”

St. Paul pleaded a general denial and specifically pleaded as a defense that Mur-phree sustained injuries to his body both before and after the alleged April 30th accident and that “such injuries, singly or collectively, constitute the sole cause of any incapacity he may have had after April 30, 1959, or alternatively, after May 15, 1959, or alternatively, after September 1, 1959.” The answer contained the further allegation that:

“ * ⅜ * defendant says that any incapacity plaintiff may have had after April 30, 1959 was contributed to by injuries sustained by plaintiff at times and places other than his employment with Meadow Implement Company, both before and after April 30, 1959.”

The jury found that the combination of prior and subsequent injuries was not the sole cause of Murphree’s incapacity. The jury did find, however, that certain injuries were sustained by Murphree before and after April 30, 1959, and that such injuries contributed an aggregate of 80% to his incapacity, as follows:

“An injury in 1951 contributed 25%
An injury on June 28, 1957 contributed 25%
An injury on July 15, 1959 contributed 25%, and that an injury on September 1, 1959 contributed 5%.”

The trial court sustained Murphree’s motion to disregard the jury finding that the June 28, 1957 injury contributed 25% to Murphree’s incapacity on the ground that this injury was general and noncompensa-ble. Judgment was thereafter entered for Murphree for total and permanent disability less 55% contribution by the two remaining prior injuries and the one subsequent injury. The Court of Civil Appeals affirmed the judgment of the trial court. 347 S.W.2d 817.

St. Paul presents various points of error urging a reversal of the judgment of the Court of Civil Appeals. St. Paul’s first six points of error present matters which, if sustained, would require this Court to reverse the judgments of both the trial court and the Court of Civil Appeals and remand the cause to the trial court for a new .trial. These points are directed at the action of the trial court in sustaining Mur-phree’s motion in limine, the contention being that St. Paul was entitled to introduce evidence concerning claims, settlements, and payments arising out of any previous or 'subsequent injury sustained by Mur-phree.'

St. Paul also contends that the ruling of the trial court on Murphree’s motion in limine ivas broader than the motion itself and 'that in addition to the prejudicial error committed in excluding evidence of settlements, etc., the ruling of the Court effectively and prejudicially prevented St. Paul from introducing into evidence the original petition and amended petition filed by'Murphree in his suit growing out of the injury alleged to have been sustained in September, 1959.

St. Paul presents two contentions which, if sustained, would require a reversal of both Court’s judgment and a rendition of judgment in favor of St. Paul. These points are: (1) that the verdict and judgment cannot stand in view of the jury finding. that the subsequent injury of September, 1959 contributed 5% to the total and permanent incapacity found by the jury to have been sustained by Murphree from the prior injury of April 30, 1959; and (2) 'that there is no evidence to support the findings of the jury upon which the judgment was based.

• ■Finally, St. Paul contends that it was error for the trial court to disregard the jury finding of the contribution of 25% by the prior noncompensable general injury sustained by Murphree on June 28, 1957. Should this Court overrule all other points, but sustain this one, then it would naturally follow that the proper judgment of this Court would be to reform and affirm the judgment of the trial court in favor of Mur-phree.

We have concluded to overrule all points and affirm the judgment of the Court of Civil Appeals for the reasons now to be stated.

The motion in limine, filed by Mur-phree and considered by the Court, recited that under the plain provisions of Article 8306, Subdivision 12c, Vernon’s Annotated Civil Statutes, St. Paul would be “only entitled to show what incapacity any previous injury to the one at issue contributed to and is not entitled to ask of the plaintiff or any other witness the dollar amounts of any settlements of claims.”

The following colloquy between the district judge and counsel shows that the Court in sustaining this motion went further than the prayer contained in the motion in li-mine and ruled that an offer to introduce the pleadings would be in violation of the Court’s action in sustaining the motion in . imine:

“THE COURT: As I told you, I will sustain his motion requesting that any evidence of claims and settlements and payments arising out of any previous or subsequent injuries to the plaintiff will not be introduced in evidence before the jury. Of course, previous and subsequent injuries may be plead and proof made respecting them as to their effect and their contribution to the plaintiff’s incapacity to work, but as to any claims or payments that were made, that should not be brought before them, according to this case that was submitted by counsel for the plaintiff. Now, then, you may dictate your exceptions, Mr. Addison.
“MR. ADDISON: Yes, sir, your Honor. I want to be clear. The Court has ruled that I am not permitted, for example, to introduce a claim filed by the plaintiff before the Industrial Accident Board; I would be limited to showing, if I can, that he had an injury at a certain time, and that he was off work for a certain time, but further than that I am not supposed to go, is that the ruling ?
“THE COURT: That is the ruling, yes, sir.”

This ruling effectively prevented counsel for St. Paul from even attempting to lay a predicate for impeachment. In developing the bill of exceptions, however, no attempt was made to lay a predicate for impeachment. St. Paul seems to .have been primarily interested at that time in the amounts paid to respondent in settlement of his other claims. Murphree was also asked whether certain claims had been filed with the Industrial Accident Board, and whether he had filed through his attorneys the petition and trial amendment in the suit growing out of the September 8, 1959 injury. Copies of such claims and pleadings were made part of the bill, but Murphree was not interrogated with reference to the allegations contained therein.

Pleadings in other actions which contain statements inconsistent with the party’s present position are receivable as admissions. See McCormick and Ray, Texas Law of Evidence, 2nd ed. 1956, Vol. 2, § 1145, p. 34. However, it does not necessarily follow that the trial court committed reversible error in excluding the pleadings filed in the suit involving the September, 1959 injury. The essence of St. Paul’s contention is that evidence of the claims, settlements and payments arising out of the previous and subsequent injuries to Mur-phree, as distinguished from evidence as to the injuries themselves, was admissible and would have established that the previous and subsequent injuries were, in fact, to Murphree’s back, which was the injury claimed in the instant suit, which evidence would have been persuasive to the jury in resolving the extent of Murphree’s back injury attributable to the particular injury involved in the present suit. This is also the purport of St. Paul’s position with reference to the admissibility of Murphree’s pleadings in his suit filed on February 3, 1960, for benefits growing out of the September 1, 1959 injury, the suit having been filed prior to the instant suit and settled before the trial of the case at bar.

St. Paul argues that it did not offer the pleadings for the ' purpose of convincing the jury that the September, 1959 injury' was the sole and only cause of Murphree’s' incapacity, but “what Petitioner was trying to do was to show the jury that Respondent had previously claimed that the incapacity he had after September, 1959 was caused by that injury, and that he had previously claimed that he had a very good aveAge wage for a year prior to September, 195⅛ What is important relative to the petition in Cause No. 5134 is that, had the jfiry known of Respondent’s claims made for'the-September injury, the jury would 'have found that the September injury contributed a great deal more to the incapacity of Respondent than the mere 5% it did find.”

St. Paul was permitted to and did interrogate respondent regarding his testimony-in the suit growing out of the September injury. He admitted having stated-on the other trial: (1) that some of the symptoms which followed the September injury. existed for a short time but not for long after the April injury; (2) that his back could' have been weaker after the April injury, but he was able to and did work; (3) that he did not know whether or not it was weaker; and (4) that his back quit hurting when he went to work for J. B. Knight, who was his employer at the time of the September injury. Murphree’s wife testified that after he went back to work following the April injury he had no trouble with his back until the September accident,; that all she could tell was that he would say his back was weakened. With all of this testimony before it, the jury found, in effect, that 20% of Murphree’s incapacity was caused by the April injury and 5% by the September injury. Under these circumstances, we cannot agree that the jury answers would have probably been any different if St. Paul had been allowed to read to the court and the jury the unverified allegations made by Murphree’s attorneys in the suit based on the September injury. The error is, therefore, harmless and under Rule 503, Texas Rules of Civil Procedure, a reversal of the trial court’s judgment is not authorized. That Rule specifically provides that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the petitioner from making a proper presentation of his case to the appellate courts.

The action of the court in excluding evidence of the sums of money obtained by Murphree in settlement of other claims was proper. The amount paid in settlement of a compensation claim cannot amount to proof of the extent of injury. The amount agreed upon in settlement, therefore, can have no bearing on the actual extent of the injury. See Great American Indemnity Co. v. Blakey, Tex.Civ.App., 107 S.W.2d 1002, wr. dism. 1937; Goodwin v. Texas Employers’ Insurance Association, Tex.Civ.App., 73 S.W.2d 660, wr. dism. 1934; Caffey v. Aetna Casualty & Surety Company, Tex.Civ.App., 219 S.W.2d 530, wr. ref. n. r. e. 1949.

The injury directly involved in this suit is alleged to have been sustained on April 30, 1959. Prior injuries and one subsequent injury are also involved. Evidence showing the nature and extent of these injuries was introduced before the jury. Such evidence was admissible, inasmuch as it is the extent of the prior and subsequent injuries that reduces the insurer’s liability, not what the employee was paid in settlement of his claim growing out of the injury. The settlement agreements and the sums paid in settlement of other suits or claims could not serve the jury or the trier of the facts materially in determining the extent of the prior and subsequent injuries contributing to Murphree’s disability. See Myers v. Thomas, 143 Tex. 502, 186 S.W. 2d 811 (1945); Sullivan v. Missouri, K. & T. Railroad Company of Texas, 110 Tex. 360, 220 S.W. 769; Ricks v. Smith, Tex.Civ.App., 204 S.W.2d 12, wr. ref. n. r. e. (1947); Brinkley v. Liberty Mutual Insurance Company, Tex.Civ.App., 331 S.W.2d 423, no wr. hist.; City of Wichita Falls v. Chandler, Tex.Civ.App., 348 S.W.2d 48, wr. ref. n. r. e.

St. Paul’s seventh and eighth points are presented and argued together. These points present the contention that (1) the trial court erred in entering judgment on the verdict in this case because there is no evidence that the injury of April 30, 1959 caused total permanent disability, and (2) that if the Court should hold that there is some evidence in the record to support these jury findings, then and in that event there is irreconcilable conflict with the jury findings in answer to Special Issues 27 and 28 that the injury sustained by Murphree in September, 1959 contributed to the April 30, 1959 incapacity to the extent of 5%.

St. Paul admits that it did not assign in its motion for new trial any error as to conflict. There was no assignment of error contained in the motion for new trial sufficient to bring this question to the trial court’s attention. However, St. Paul contends that if in fact there is a fatal conflict, then such conflict cannot be waived, is fundamental and may be considered by the Court, citing Little Rock Furniture Manufacturing Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. We cannot agree with this contention. The entry of judgment by a trial court on conflicting findings does not constitute fundamental error. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265.

We turn now to the contention that there is no evidence supporting the findings of the jury that Murphree sustained total and permanent disability as the result of the April, 1959 injury. We overrule this contention. The lay and medical testimony in this case support the findings of total and permanent disability. St. Paul argues that when the finding of the jury that the September, 1959 injury contributed 5% to Murphree’s incapacity is considered, it is ■evident that there is no evidence to support the findings that Murphree sustained total and permanent disability as the result of the April, 1959 injury. This particular argument has nothing to do with the question ■of conflict and bears solely on the no evidence question. In view of the fact that this case was pleaded, tried, and submitted to the jury on the theory that the legal effect of a subsequent injury (September, 1959) is no different than that of a prior injury, and the fact that no contention is made that St. Paul is legally responsible ■only for the incapacity that Murphree would have sustained absent the subsequent injury, St. Paul cannot be sustained in its contention that the jury findings that Murphree was totally and permanently disabled by the April injury are not supported by the evidence merely because the September, 1959 injury contributed 5% to Murphree’s incapacity.

The jury found that following the April, 1959 injury, Murphree sustained some total incapacity as a result of this injury. It further found that at the time of the trial his total incapacity was permanent. For Murphree to recover for total and permanent incapacity, it was not necessary for the jury to find that the April, 1959 injury was the sole cause of his incapacity. See Texas Employers’ Insurance Association v. Upshaw, Tex.Civ.App., 329 S.W.2d 144, wr. ref. n. r. e. (1959); Texas Indemnity Insurance Company v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940); Texas Employers’ Insurance Association v. Ham, Tex.Civ.App., 333 S.W.2d 438, wr. ref. n. r. e. (1960); Texas Indemnity Insurance Company v. Dean, Tex.Civ.App., 77 S.W.2d 748, wr. dism. (1935).

This leads to our consideration of the remaining point presented in the petition for writ of error. The question presented is: Did the trial court err in disregarding the answers of the jury to Special Issues 21 and 22 that the June, 1957 noncom-pensable injury contributed 25% to Mur-phree’s incapacity ?

We hold that the word injury, as used in Section 12c, Article 8306, Vernon’s Annotated Civil Statutes, as related to a general injury, means compensative injury. Unless the prior general injury is one for which compensation is provided under the terms of the statute, the insurer’s or carrier’s liability cannot be reduced by reason thereof. See Texas Employers’ Insurance Association v. Clark, Tex.Civ.App., 23 S.W.2d 405, wr. dism. (1930) ; Texas Employers’ Insurance Association v. Upshaw, supra; Texas General Indemnity Company v. Bledsoe, Tex.Civ.App., 344 S.W.2d 527, wr. ref. n. r. e. (1961) ; Southern Underwriters v. Grimes, Tex.Civ.App., 146 S.W. 2d 1058, wr. dism. judg. corr. (1941).

The judgments of both the trial court and the Court of Civil Appeals are affirmed.

GRIFFIN and CULVER, JJ„ dissenting.

CULVER, Justice

(dissenting).

The Court in this case has held that the trial court erred in refusing to permit the compensation carrier to offer in evidence the claimant’s petition filed on account of the subsequent September injury, but has also held that the error was harmless in the light of the fact that the claimant was questioned as to the nature and extent of the injury he received in September. The jury found that five per cent of his total and permanent disability was a result of the subsequent injury.

The injury in this case was alleged to have occurred on April 30. Both petitions were filed by the same law firm. The allegations are so similar that one might have served as a model for the other. With respect to the April injury which formed the basis of this case, the allegations were as follows:

“ * * * plaintiff was suddenly, accidentally and unexpectedly injured in that while he was pulling a tractor engine head and while in an awkward and strained position felt a tearing sensation in back and low back and as a result of said accident, plaintiff sustained and suffered the following injuries: Severe damage to plaintiff’s back and low .back with severe pain in both legs, with areas of anesthesia on the left leg on • the anteri-lateral aspect from the hip, to .the knee, and postero-lateral ...from the knee to the ankle, narrowing ■ of the interspace between the 4th and Sth lumbar vertebrae, displacement of the 5th lumbar segment to the right on the 4th; a cupping of the body of the 5th lumbar segment at its inferior plate, osteophytic spurring on the body of the 5th lumbar vertebrae, extreme nervous condition, together with the rupture and contusion of all the nerves, ligaments, tendons, blood vessels, soft tissues and blood vessels and muscles in the plaintiff’s back and low back all of which have rendered the plaintiff totally and permanently disabled under the provisions of the Workmen’s Compensation Act of Texas.”

The September petition alleged that:

“ ⅜ * * plaintiff was suddenly, accidentally and unexpectedly injured in that while pulling a motor out of a combine and while in an awkward and strained position suddenly felt a burning and tearing sensation in his back and low back and as a result of said accident, plaintiff sustained and suffered the following injuries: severe damage to plaintiff’s back and low back, with such severity that a spinal fusion operation was performed on plaintiff’s back, tenderness over the scar where the fusion operation was performed, inability to stoop over or bend, constant and severe pain in his back and left leg, areas of anesthesia on the left leg, sclerosis of the lower lumbar spine, a narrowing of the interspace between the 4th and 5th lumbar and the 5th lumbar and the 1st segment, together with a rupture and contusion of all the nerves, tendons, muscles, ligaments, soft tissue and blood vessels in plaintiff’s back and low back, and all of which have rendered him totally and permanently disabled from performing manual labor under the provisions of the Workmen’s Compensation Act of the State of Texas.”

Both petitions in the alternative alleged that only if the plaintiff was mistaken then the accident reinjured and aggravated a previous physical condition and as a result he was totally and permanently disabled. Incidentally the September case was settled before this one came on for trial.

The September petition further alleged: “That by reason of the heretofore mentioned accident and resulting injuries which were sustained by him in the scope of his employment with J. B. Knight Company, he has been rendered and is totally and permanently disabled, with reference to performing labor, and that said disability was caused by reason of the said accident and resulting injuries heretofore described.”

Although Murphree was cross-examined as to the September injury, nowhere was there shown nor permitted to be shown to the jury all of the bodily damage and impairment detailed in the September petition, the similarity of those claims to the ones made in the April petition and the repeated assertion of total and permanent disability as a result of the September accident and the consequential injuries. In the light of all of these claims the jury might well believe and probably would have found that at least the September injury contributed more than five per cent to the total and permanent disability which Murphree may have had at the time of the trial, and thus determine he was not totally and permanently disabled as a result of the April injury. There was no reason for the jury to believe that the September allegations were fictitious or not made in good faith. They constituted in effect a denial by Murphree that he had been totally and permanently disabled by reason of the April injury. The jury might also with reason have thought it rather incredible that the claimant would have asserted that he had been totally and permanently disabled twice within a period of four months. I think it reasonable to presume that the jury would have attached considerable weight to the allegations made in the September petition. The ruling of the trial court should not be brushed aside as harmless error.

The jury found that Murphree as a result of the injuries received on April 30, 1959, sustained total incapacity. That the total incapacity began on April 30 and was permanent. The jury also found that the injuries received by Murphree on September 1, 1959, contributed to plaintiff’s incapacity to the extent of five per cent. Obviously this constitutes a conflict. Both cannot be true. If the September injury contributed in any degree to the total and permanent incapacity then he was not permanently incapacitated on April 30. However, neither party objected to the submission of the issue relating to the September injury and I do not find in St. Paul’s motion for a new trial any support for a complaint on this score.

I would reverse and remand the case for a new trial.

GRIFFIN, J., joins in this dissent.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Melvin Clifton WEST, Appellant, v. The STATE of Texas, Appellee.
    No. 34509.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving an automobile upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $50.

The record contains no statement of facts.

The bills of exception forwarded to this Court are not incorporated in the transcript. They have been examined and the complaints therein are such as cannot be appraised without a statement of facts.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Curtis SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34664.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    T. D. Wells, Paris, for appellant.
    Jim N. Thompson, County Atty., Paris, and Leon 'B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of equipment designed for use in the manufacture of an illicit beverage; the punishment, six months in jail and a fine of $100.00.

Internal revenue agent Daniels saw Vylie Reed and Gladys Gunishaw in a pickup truck, noticed a “still pot” in the back, and followed them until they turned in at appellant’s place. He went on up the road a short distance to a point where he picked up two more officers, and they returned immediately and entered upon appellant’s property.

Officer Ellsworth testified that when he came upon appellant’s property (where appellant and another carpenter were building a house), he saw Vylie Reed and one “Poodlum” Smith (not shown to be appellant) standing between what was to be a house and a barn on the right side of the pickup halfway between the tail gate and the cab. Reed had hold of the still pot, which was “lying parallel to the truck and directly behind the bed of the pickup truck.”

Officer Pearson testified that Vylie and appellant were beside the “whiskey pot.”

We have searched this record with care and have been unable to find the evidence to support the conclusion expressed in the State’s brief that appellant was seen unloading the still pot.

Having concluded that the evidence is. insufficient to support a finding that appellant had the apparatus in question in his. possession, the judgment must be reversed and the cause remanded.

It is so ordered.


author: DICE, Commissioner.

text:
    Don DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34666.
    Court of Criminal Appeals of Texas.
    May 30, 1962.

      D. N. McMahan, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

City of Dallas police officer B. L. Powell testified that on the night in question while on patrol duty in the city he stopped for a traffic light at the intersection of Bryan and Hall Streets; that after the light changed he heard a loud squeak of tires and observed a car driving off at a high rate of speed on Bryan Street; that he turned his patrol car around and proceeded to pursue and stop the car after traveling some twelve or thirteen blocks; that the car was a ’58 Ford and occupied by two persons; that he went to the car and asked the driver, whom he identified as the appellant, for his driver’s license; and that after appellant produced the license he asked him to step out of the car. Officer Powell testified that at such time appellant staggered, his speech was slurred, and expressed his opinion that appellant was intoxicated. He further testified that on such occasion he could smell a strong alcoholic odor and in searching appellant’s automobile he found on the front floor board an opened fifth liquor bottle containing approximately an inch of whisky. Officer Powell stated that he placed appellant in the back seat of his squad car and called Officer Dossett on his radio; that after Officer Dossett arrived at the scene, he (Officer Powell) drove appellant’s car to the police station, carrying with him appellant’s companion who had remained in the car.

Officer Dossett testified that when he arrived upon the scene, one subject was sitting in the rear seat of the officer’s squad car and the other subject was seated in the ’58 Ford automobile; that he had the subject who was seated in the squad car, and whom he could not identify, get in his patrol car, and proceeded to take him to the city hall. Officer Dossett testified that the subject staggered when he walked, talked incoherently, had a strong odor of alcohol about him, and expressed his opinion that he was intoxicated.

Testifying as a witness in his own behalf, appellant admitted being arrested by Officer Powell on the night in question but denied that he was driving the automobile and denied that he was drunk. Appellant testified that the automobile in which he was riding belonged to one Leo Holliday; that he and Holliday had been to Tyler and were returning to Dallas and that Holliday was driving the car.

The jury resolved the disputed issues against appellant and we find the evidence sufficient to sustain their verdict.

Appellant’s sole contention on appeal is that the court erred in overruling his motion to strike and exclude the testimony of Officer Dossett because the officer was unable to identify the appellant as the person about whom he testified was present and intoxicated at the scene on the night in question.

While Officer Dossett was unable to identify appellant as the person, he did identify the person as the subject seated in the rear seat of the squad car who the testimony shows was the appellant.

Appellant’s objection went to the weight of the officer’s testimony rather than to its admissibility.

In refusing to strike the testimony, the court did not err.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Ex Parte C. H. MEYER.
    No. 34573.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Adams & Browne, by Gilbert T. Adams, Beaumont, for appellant.
    W. G. Walley, Jr., Acting Crim. Dist. Atty., Beaumont, Will Wilson, Atty. Gen., Norman V. Suarez, Asst. Atty. Gen., and Leon B. Douglas, State’s Atty., Austin (Robert O. Smith, Austin, of counsel), for the State.
   MORRISON, Judge.

Relator stands charged by indictment in the 136th Judicial District Court of Jefferson County with having falsely sworn to an affidavit which was required by the Election Code as to all gifts and loans received and payments made by him in behalf of his candidacy for the nomination for the office of sheriff of Jefferson County at the first primary election held on May 7, 1960.

By original application for writ of habeas corpus brought in this Court, relator prays for discharge from confinement by the constable of Jefferson County, who holds him by virtue of a commitment issued after the return of the indictment.

Relator challenges the validity of Subdivision (g) of Article 14.08 of the Election Code, V.A.T.S. on the grounds that no penal provision is mentioned in the caption which reads as follows:

“An Act to adopt and establish an election code for the State of Texas, to revise and recodify Title 50 of the Revised Civil Statutes of 1925 of Texas, and all amendments thereto, to repeal all Acts in conflict herewith, provided, however, that nothing in this Act shall be construed as repealing or in any way affecting the legality of any penal provision of the existing law, and further provided that nothing in this Act shall in any wise alter, amend, or repeal House Bill No. 43, Acts, Regular Session, Fifty-second Legislature; providing a saving clause; providing an appropriation; providing the effective date; and declaring an emergency.”

In Ferrantello v. State, 158 Tex.Cr.R. 471, 256 S.W.2d 587, we said that, in passing upon the sufficiency of the caption, we were “testing whether the members of the Legislature, as a matter of fact, had notice from the caption that the body of the bill itself provided * * Therein, we find the following:

“The reason underlying this constitutional requirement is that fraud and deception in the enactment of legislation is made less likely if the caption, which is often the only part of the bill read by busy members of the Legislature, fully apprises the members of the contents of the bill itself.
⅝ ⅜ ⅝ * ⅜
“Members of the Legislature need not be lawyers, and it is a matter of common knowledge that many are not. * * * »

Section 35 of Article III of the Constitution Vernon’s Ann.St., prohibits the inclusion in a bill of any subject not expressed in the title.

Reliance is had by the State upon the opinion of the Supreme Court of this State in Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, which upheld the constitutionality of that portion of Article 9.02 which related to the holding of a court of inquiry to expose fraudulent electoral practices. The question of the validity of a penal provision of the Election Code was not before the court in that case, and the same is not authority in the case at bar. We have here a statute which says in its caption that it purports to revise a civil statute, that the existing penal laws are not affected, and nowhere gives notice to the Legislature or the public that any penal provisions are to be found in the Act.

If the presence of notice to the Legislature and the public has caused a difference of opinion in this Court, after careful study and with the aid of able counsel, then it is apparent that such notice was not brought home to the members of the Legislature or the public.

In Texas-Louisiana Power Co. v. City of Farmersville, Tex.Com.App., 67 S.W.2d 235 (differentiated by the Supreme Court of this State in Ex parte Jimenez, supra), wherein the caption failed to mention an important change in the law, the Supreme Court held that the caption of the Act in the power company case was misleading in that it affirmatively suggested that the Act did not contain the provision in question. We have here a caption which affirmatively suggests that it contains no penal provision.

Having concluded that the caption is insufficient under the holdings of this Court in Stum v. State, 151 Tex.Cr.R. 436, 208 S.W.2d 633; Ex parte Heartsill, 118 Tex.Cr.R. 157, 38 S.W.2d 803; Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98; Ex parte Hayden, Tex.Cr.App., 215 S.W.2d 620; and Doucette v. State, 166 Tex.Cr.R. 596, 317 S.W.2d 200, wherein this Court held that the caption of an Act failed to give notice or was misleading, we must necessarily hold the penal provisions in question to be void because of Section 35 of Article III of the Constitution. See also Fouga v. State, Tex.Cr.App., 351 S.W.2d 240.

Relator’s contention in this respect is sustained.

Such a holding in no wise affects the validity of Subdivision (b) or any of the other civil provisions of the Election Code.

Since Articles 262 to 269, Vernon’s Ann.P.C., were repealed by the Acts of 1959, 56th Legislature, page 34, chapter 22, section 1, we must determine on this habeas corpus hearing whether or not the facts set forth in the indictment constitute a violation of any valid penal statute. If so, relator is not entitled to be discharged. Ex parte Hensley, 162 Tex.Cr.R. 348, 285 S.W.2d 720.

Subdivision (b) of Article 14.08 of the Election Code (as amended in 1955, Acts, 54th Legislature, page 503) provides:

“(b) Each candidate whose name appears on the ballot at a first primary election or a special election and each opposed candidate whose name and whose opponent’s name appear on the ballot at a general election shall file a sworn statement, not less than seven (7) nor more than ten (10) days prior to the day of each such election, of all gifts and loans previously received and of all gifts, loans and payments made and all debts incurred and obligations incurred or contracted for future use in behalf of such person’s candidacy for office. The statement must include all such gifts, loans, payments, debts and obligations made or incurred, whether before or after the announced or filed candidacy of such person. Not more than ten (10) days after the election the candidate shall also file a supplemental sworn statement of all gifts and loans received prior to the election and of all gifts, loans and payments made and debts and obligations incurred prior to the election not specifically included in the sworn statement filed prior to the election.”

Article 302, V.A.P.C., as it existed on May 7, 1960, read as follows:

“Perjury is a false statement, either written or verbal, deliberately and wil-fully made, relating to something past or present, under the sanction of an oath, or such affirmation as is by law equivalent to an oath, where such oath or affirmation is legally administered, under circumstances in which an oath or affirmation is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.”

It is apparent that the Election Code (Subdivision (b) of Article 14.08) requires the filing of the affidavit in question. This being required by law is a sufficient basis for a prosecution for perjury.

Relief prayed for is denied.

WOODLEY, Presiding Judge

(concurring).

As I see it, the Legislature had authority to adopt and establish an election code without repealing the penal provisions of existing statutes and to provide a punishment by fine or imprisonment for the violation of certain of its provisions, without any reference in the caption to its penal provisions. Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, 193; Doeppenschmidt v. International and G. N. R. Co., 100 Tex. 532, 101 S.W. 1080; Johnson v. Martin et al., 75 Tex. 33, 12 S.W. 321.

The provision in the caption that nothing in the election code shall be construed as repealing or in any way affecting the legality of any penal provision of the existing law does not suggest to me that the statute contains no penal provision. This is especially true because one or more of the acts for which a fine or imprisonment is provided in the election code do not appear to have been punishable as offenses under existing statutes.

Eliminating Art. 14.08(g) and Arts. 262 to 269 P.C., I agree that the doing of the acts set forth in the indictment is punishable under Art. 302 P.C., which defines the offense of perjury, and that the relator should be remanded to custody.


text:
    Clara Bell FREEMAN, Appellant, Joyce Ann Price, Appellant, Odessa King, Appellant, Gloria Ann Cumby, Appellant, v. The STATE of Texas, Appellee.
    Nos. 34539-34542.
    Court of Criminal Appeals of Texas.
    April 25, 1962.
    Rehearing Denied May 30, 1962.
    John McLean, Fort Worth (on appeal only), for appellant.
    Henry Wade, Criminal Dist. Atty., George Milner, Bill Watts, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The convictions are for felony theft of 35 cartons of cigarettes from Wyatt’s Food Store in Grand Prairie, Texas; the punishment, three years each for appellants Price and Cumby, and five years for appellants Freeman and King.

These are companion cases, and, although appellants were separately indicted, they agreed to be tried together, and the appeals are hereby consolidated.

A. H. Martin, manager of Wyatt’s Food Store at Grand Prairie, testified that at 10:30 A.M. on the date in question a clerk in the store called his attention to appellants, that he observed appellants leaving the store through a check-out counter that was not in operation, that they were each carrying long black bags, that none of them paid for any merchandise, and that they left the store together. He further testified that he took an inventory of his stock of cigarettes and discovered that 35 cartons were missing-, and later identified his store’s mark on 35 cartons of cigarettes at the police station. He stated the cigarettes were valued at $2.65 per carton.

R. D. Dodd, an employee of Safeway Stores in Grand Prairie, testified that he observed appellants leaving his store shortly after noon on the day in question and that they left in a two-tone Buick automobile after failing to respond to his request for them to stop. He stated further that he took down the license number of the Buick and gave it to the Grand Prairie police.

Fred Conover, a member of the Grand Prairie police department, testified that on the date in question appellants passed his police car shortly after he had received a description of their car, that he turned on his red lights and proceeded after appellants’ car, honking his horn; that several of the appellants turned around and looked at him, and then their automobile began to pick up speed; and that he was successful in stopping appellants after chasing them between fifteen and twenty blocks at speeds up to 85 miles per hour. He stated that some of the cigarettes were thrown out of appellants’ automobile during the chase and that 55 cartons were found scattered around in their automobile and in the four large black purses.

C. R. Roberts, a Grand Prairie police department detective, testified that after a proper warning he took voluntary confessions from the four appellants in which they recited that “each of us took several cartons of cigarettes. * * * ”

Each of the appellants testified in her own behalf that three of them (Cumby, Price and Freeman) had left Odessa King at a doctor’s office in Arlington, that they then proceeded to the Wyatt’s Food Store in Grand Prairie, that they then went into the store independently of each other and with no agreement to steal any cigarettes, that each of them stole several cartons of cigarettes by putting them into large bags they were carrying, and each of them denied any knowledge of the fact that the others were also stealing cigarettes.

Appellant Price further testified, without objection, that they later went to the Safeway Store, and she stole six cartons of cigarettes there.

Under a proper charge by the trial court on the law of principals, the jury found each of the appellants guilty, and we find the evidence sufficient to support a finding that appellants were acting in conjunction with each other in the commission of the theft of the 35 cartons of cigarettes.

No brief has been filed in behalf of any of the appellants, and we shall discuss the contentions advanced by counsel in oral argument.

Counsel on appeal contends that, although there was no objection to the question asked appellant Price or to the testimony she gave regarding the theft of the cigarettes from the Safeway Store, the trial court erred in not excluding this evidence of an extraeous offense on his own volition. It has long been the holding of this Court that where appellant fails to object to the introduction of testimony in the trial court he is in no position to assert on appeal that it was inadmissible. Long v. State, Tex.Cr.App., 339 S.W.2d 215; Madden v. State, Tex.Cr.App., 344 S.W.2d 690; Bowles v. State, Tex.Cr.App., 324 S.W.2d 841, and Barfield v. State, Tex.Cr.App., 323 S.W.2d 455. See also 5 Tex.Jur.2d, sec. 39, p. 61, and cases there cited.

Counsel also contends that the trial court erred in admitting into evidence the confessions of appellants Price and Freeman without limitation because they were highly prejudicial to appellants King and Cumby.

It is true that the confession by one of several defendants jointly tried, though admissible in evidence against the one who made it, is not admissible as evidence against his co-defendants and should be properly limited by the court. Morris v. State, Tex.Cr.App., 332 S.W.2d 326, and Collins v. State, 24 Tex.App. 141, 5 S.W. 848. However, we find no objection to the court’s charge nor a requested charge directing the jury’s proper consideration of this evidence. The record further reflects that the confessions of appellants Cumby and King, which were identical in all material respects to the confessions of Price and Freeman here complained of, had already been introduced into evidence without objection (that they were not properly limited to the appellants who made them), and it has long been the rule that the improper admission of evidence does not constitute reversible error if the same facts were shown by evidence not objected to. Moseley v. State, 158 Tex.Cr.R. 578, 258 S.W.2d 331. See also 5 Tex.Jur.2d, sec. 446, p. 704, and cases there cited.

No reversible error appearing, the judgments are affirmed.


text:
    Ralph Dueaborn MATTHIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34571.
    Court of Criminal Appeals of Texas.
    May 2, 1962.
    Rehearing Denied June 13, 1962.
    William O. Braecklem, Dallas, tor appellant.
    Henry Wade, Criminal Dist. Atty., Bill Watts, Pat McDowell, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $100.

The sufficiency of the evidence is not questioned. Including the testimony of the appellant, it shows that when arrested appellant was' driving his automobile upon a public highway in Dallas with a metal City of Dallas danger marker or sign laying across the hood of the car. The sign was described as some 6 feet tall, including the post, the face of the sign being about three feet tall and around eight inches wide.

The arresting officers, and a third officer who observed appellant after his arrest, expressed the opinion that appellant was intoxicated. They described his appearance and demeanor and the odor of alcohol about him, and testified to their experience, as the basis for their opinions.

On cross-examination the officer witnesses answered that they were acquainted with the fact that there are certain situations with reference to medicine and with reference to health that might cause a person to appear to be intoxicated when he is not. The officers were not questioned otherwise regarding appellant’s defense thereafter raised by his testimony, that his condition, acts and conduct resulted from certain drugs he had taken and not from intoxicating liquor.

The jury resolved this issue against appellant.

The sole ground for reversal relates to argument of counsel for the state to the effect that there was no evidence other than the testimony of the appellant that he had taken or was under the influence of a drug; that appellant produced some pills which he testified he had been taking, but no testimony that he told anyone that night, and that no one confirmed his testimony that he had taken the pills. Counsel for the state also argued:

“Ladies and gentlemen of the Jury, don’t you know that if you were stopped and you knew you were taking pills and you knew you weren’t drunk and you were stopped by police officers and accused of drunk driving, wouldn’t you say ‘Officer, I have been taking pills, here they are.’ ”

Appellant’s objection, and the complaint he here presents, is that the foregoing remarks were erroneous and prejudicial because he had the right to remain silent, and the fact that he did so while in custody was not admissible against him. He relies upon Williams v. State, 102 Tex.Cr. R. 251, 277 S.W. 389, holding that the district attorney should not have been allowed to argue to the jury that the defendant made no explanation when arrested or on his way to town, and that the arresting officer’s testimony that after the arrest the defendant said nothing when the officer stated that there had been some stuff stolen and found in his house was inadmissible. The holding was that such testimony and argument offended the rule that whether warned or not, the silence of the defendant while under arrest cannot be used against him as a confession of the truth of statements made in his presence by his co-defendants or anybody else. Branch’s Ann.P.C. p. 39, Sec. 64 (2d Ed. Sec. 87).

The rule relied upon by appellant does, not appear to be applicable here. The evidence admitted without objection shows, that appellant conversed freely with the-officers; stated that he had “had a little-at his job”, when asked if he had been, drinking; and when asked about the sign-, on the hood of his car, answered “What sign ?”

Appellant also testified and exhibited to-the jury pills which he said were like those-he took and those he had with him when= arrested, but was not asked and did not-testify that he exhibited the pills to the-officers when arrested or that he told the-officers, in giving his version of his condition, that he had taken pills or drugs.

Everhart v. State, 154 Tex.Cr.R. 291, 226 S.W.2d 637, cited by the state as involving-a similar situation, appears to us to be in point. There the complaint was that the-state was allowed to introduce evidence-showing'that the defendant remained silent as to certain matters at the time he-made a confession. In holding there was-no error this Court said:'

“We think the basis of this complaint is the failure to state all of appellant’s grounds of defense rather than a fact of silence when charged with such offense.”

No reversible error appearing, the judgment is affirmed.


text:
    Frank MARRUFO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34484.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Alejandro Duran, Jr., Mauro Rosas, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, First Asst. Dist. Atty., Sam W. Callan, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant, Frank Marrufo, Jr., and Roberto Duron were jointly indicted for the murder of Bernardo Nava Reyes. Upon the granting of a severance, appellant was separately tried and convicted and his punishment was assessed at confinement in the penitentiary for five years.

The state’s testimony shows that on the night of July 15, 1960, the deceased was shot and killed, around 9 o’clock, p. m., after he had been called outside his house and had engaged in an argument with some parties in the street.

Prior to the shooting, the deceased was involved in a fight with some friends of appellant’s co-indictee Roberto Duron. Upon learning of the fight, Duron went to David Escarciga and asked Escarciga if he had a gun and some bullets, giving as his reason for wanting the gun that the deceased had beaten up his friend and that he and some other boys were going to see what they could do about it. Escarciga had no gun and Duron left, saying he was going to appellant’s house. Duron and appellant were then seen driving away in appellant’s automobile in the direction of Duron’s home. About an hour later, Escarciga heard what he thought to be two shots and, after waiting a few minutes, walked by the corner of a playground where he saw Duron, who had a rifle, in company with two other men. The rifle was recognized by Escarciga as an English rifle belonging to Duron’s brother.

Police Detective Joe Gonzalez, upon going to the scene, found the deceased lying in the street, bleeding from a wound in the chest. An autopsy was performed upon the deceased’s body by Dr. Frederick P. Born-stein, who testified that the cause of death was a bullet which had passed through the body and shattered the heart and liver.

The rifle which was identified by the witness, Escarciga, as the one which he saw in possession of Duron after the shooting was recovered from Duron’s home by Lt. Roy Moeller on the night of the killing.

Appellant was arrested on the following day shortly after 2 o’clock, p. m., by Detective Domingo L. Tellez and was taken to police headquarters, where he was booked in at 3 :50 o’clock, p. m. After being questioned, appellant made and signed a written statement to Officer Tellez at 5:15 o’clock, p. m., in which he stated that on the night of the killing, Duron came to his home and told him that the deceased had taken a shirt from his friend in a fight and asked appellant to take him to his home to get a rifle; that he took Duron to his home, where he obtained a rifle, and they then drove to the deceased’s home, where they were joined by some of Duron’s friends. Appellant stated that it was agreed that they would shoot the deceased if he did not return the shirt and after the deceased came out of his house and was talking to some of those present, Duron fired the rifle, after which he and the appellant fled.

After signing the confession, appellant was questioned by Lt. Joe Gonzalez, beginning at 6:20 o’clock, p. m., and made and signed a second confession which was completed at -7:45 o’clock, p. m., in which he stated that it was he who fired the rifle on the night in question. In describing the actual shooting of the deceased, appellant stated that Duron attempted to fire the rifle and it clicked and “I took it away from him and pulled down the hook, and as I had my finger on the trigger it went off as soon as I pulled the hook.” In his confession appellant identified the English 303 rifle found in Duron’s home by the officers as the rifle “Roberto had and the one I fired at ‘Berra’'[the deceased] last night.”

The two confessions were admitted in evidence by the court, after evidence was heard on the question of their voluntary nature, over appellant’s objection that they were not freely and voluntarily tnade and were shown to be inadmissible as a matter of law. ■

Testifying as a witness in his own behalf, appellant related how he took Duron to his home to get the rifle on the night in question and then going to the scene of the killing with Duron to get the shirt from the deceased. Appellant stated that the .rifle was taken to scare the deceased and after they arrived at the scene and some of those present started fighting, Duron started to' shoot but put the rifle down when a lady passed. He further stated that while Duron had the rifle in his lap'-“all of a sudden we heard everybody running this way, and Roberto lifted up the rifle, and I grabbed for it” and “It went off.” Appellant testified that he did not intend to kill the deceased and did not kill him. Appellant further testified that he was not warned by the two officers to whom the confessions were made and that he made and signed the confessions because of physical force administered upon him by the officers striking and slapping him.

The court submitted the issue of appellant’s guilt to the jury on a charge on the law of principals and also submitted to the jury the appellant’s defense of accident and the issue as to the voluntary nature of appellant’s two written confessions admitted in evidence.

The jury, by their verdict, resolved the disputed issues against the appellant, and we find the evidence sufficient to sustain the judgment of conviction.

Appellant predicates his appeal upon five formal bills of exception.

By bills of exception Nos. one and three, appellant insists that the court erred in refusing his request to retire the jury and permit him to examine Officers Tellez and Gonzalez outside of their presence and hearing on the question of the voluntary nature of the confessions and their admissibility in evidence as a matter of law. Appellant relies upon the rule stated in Bingham v. State, 97 Tex.Cr.R. 594, 262 S.W. 747, that when a confession is objected to on the ground that it is involuntary it becomes the duty of the court to retire the jury and hear evidence on the issue to determine the preliminary question as to whether the confession is inadmissible as a matter of law.

Each bill of exception certifies that before the confessions were read into evidence the court permitted appellant to examine the officers on voir dire in the absence of the jury.

The record reflects that after objection was made by appellant to the confessions, appellant was permitted by the court to examine the officers and offer other testimony in the absence of the jury on the question of the voluntary nature of the confessions and their admissibility as a matter of law. While the jury was not retired when first requested by appellant, the record shows that the jury was soon thereafter retired and the facts fully developed in their absence on the question of the voluntary nature of the confessions and their admissibility as a matter of law.

We find no error in the bills.

Bills of exception Nos. two and four present appellant’s contention that the court erred in admitting the confessions in evidence over his objection that they were shown to be inadmissible as a matter of law.

We find no undisputed facts in the record which would vitiate the confessions.

The fact that appellant was arrested without a warrant and was not taken forthwith before a magistrate did not, standing alone, vitiate the confessions. See: Collins v. State, Tex.Cr.App., 352 S.W.2d 841, and the cases there cited. Before a confession will be held inadmissible for such reason, a causal connection must be shown between the failure to secure a warrant and take the accused forthwith before a magistrate, and the securing of the confession. There is no such showing in the present case.

Appellant’s testimony that he was not warned by the officers to whom the confessions were made was denied by them in their positive testimony that he was duly warned. Appellant’s testimony that he was physically mistreated by the officers was denied by them. The officers also denied that appellant asked to use a telephone or see a lawyer. While appellant’s father testified he went to the police station three times to see appellant and was not permitted to see him until 11:30 o’clock, p. m., after being told that he could not see him until the investigation was completed, Officer Gonzalez testified that he did not hear such a statement made to the father and that he first saw the father at the station at 9 o’clock, p. m., when he was permitted to talk to appellant from 9:05 p. m. to 9:35 p. m.

Under the record, the trial court correctly submitted to the jury the issues raised by the evidence as to whether appellant was duly warned and as to the voluntary nature of the confessions. Gipson v. State, 147 Tex.Cr.R. 428, 181 S.W.2d 76.

We do not deem the case of Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, relied upon by appellant, as here controlling. In the Haley case the accused, fifteen years of age (appellant is eighteen years of age), confessed to the crime after being shown confessions of two other suspects. He was thereafter held incommunicado for over three days, during which time his mother was not allowed to see him and a lawyer retained by her was twice refused admission to see him. Such are not the facts in the instant case.

By bill of exception No. five, appellant complains of the court’s refusal to give his requested charge on negligent homicide in the second degree. Such an issue was not raised by the evidence. Under the evidence, the issue raised was whether the shooting was intentionally done by appellant or was accidental. The court’s charge to thé jury on accident amply protected appellant’s rights. Allen v. State, 141 Tex.Cr.R. 94, 146 S.W.2d 384; Fawcett v. State, 152 Tex.Cr.R. 292, 213 S.W.2d 830, reversed on other grounds, and Cook v. State, 152 Tex.Cr.R. 51, 211 S.W.2d 224.

No error is presented by the bill.

We find no error in the court’s charge on accident, because it required the jury to find that appellant killed the deceased by accident and “not while intending to commit the offense of assault with intent to murder,” or while acting as a principal with Roberto Duron to commit the offense. Under the state’s theory of the evidence, appellant and Duron were preparing to make an assault with intent to murder upon the deceased and, while so doing, did actually murder him. It was appellant’s contention that the killing was by accident.

Such instruction properly incorporated the provisions of Art. 42, Vernon’s Ann.P.C., which eliminates accident as a defense when a homicide is committed while in the act of preparing to commit a felony. Cook v. State, supra.

Nor do we find reversible error in the court’s definition of murder in the charge, which reads:

“Whoever shall voluntarily kill any person in this State shall be guilty of murder.
“Murder is distinguished from other species of homicide by the absence of circumstances which excuse or justify the killing.”

The omission from the definition of the words: “which reduce the offense to negligent homicide” that are contained in the statutory definition of murder, Art. 1256, V.A.P.C., would not require a reversal of the conviction.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    PAMS ADVERTISING AGENCY, INC., Appellant, v. Harry HARTLEY et al., Appellees.
    No. 3990.
    Court of Civil Appeals of Texas. Waco.
    April 26, 1962.

      Passman, Jones & Whitener and Bill C. Hunter, Dallas, for appellant.
    Seymour Lieberman, Marcus & Lewis, by Marvin Lewis, Dallas, for appellees.
   McDONALD, Chief Justice.

This is a venue case involving exception 4 of Article 1995, Vernon’s Ann.Civ.St. Plaintiff Pams Advertising Agency brought suit in Dallas County against United Motors, Ajax Motors, Harry Hartley, J. A. Bearfield, and International Motor Rebuilding Company, for some $7500. balance due plaintiff for advertising. Defendants United' and Ajax are residents of Dallas County. Defendants Hartley, Bearfield and International are residents of Harris County. Defendants Hartley, Bearfield and International filed pleas of privilege to be sued in Harris County, the county of their residence. Plaintiff controverted, alleging venue in Dallas County under Subdivision 4, Article 1995, Vernon’s Ann.Civ.St.

Trial was before the Court without a jury which, after hearing, sustained defendants Hartley, Bearfield and International’s pleas of privilege and ordered the cause as to them transferred to Harris County.

Plaintiff appeals on 10 points, contending that the trial court erred in sustaining such pleas of privilege, and that venue was maintainable in Dallas County under Subdivision 4, Article 1995, Vernon’s Ann.Civ.St.

Plaintiff plead that the 5 defendants “expressly promised and agreed to pay to plaintiff for the (advertising) services performed, flemished, or caused to be furnished by Plaintiff,” (and that same was not paid for).

The proof showed that the advertising services sued for by plaintiff were furnished to defendants United and Ajax; that defendants United and Ajax had become delinquent in paying their accounts to plaintiff, and that defendants Hartley, Bearfield and International (who were interested and desirous that United and Ajax continue in business) orally promised to pay the delinquent accounts, if plaintiff would continue to handle advertising for United and Ajax.

The trial court took the view that no cause of action was made in the pleadings against Hartley, Bearfield and International because they were guarantors and their promises would have to be in writing to be enforceable under Section 2, Art. 3995, Vernon’s Ann.Civ.St.

Subdivision 4, Article 1995, Vernon’s Ann.Civ.St., provides: “Defendants in different counties. — If 2 or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * ”

Our Supreme Court construing such subdivision, held in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 that the venue requirements in such situations are: 1) To plead a cause of action against both the resident and non-resident defendants. 2) To prove a cause of action against the resident defendants. (Such case affirmatively holds that there is no requirement that the plaintiff, to maintain venue under exception 4, prove a cause of action against the non-resident defendant). See also: Atlas Roofing Co. v. Hall, Sup.Ct., 150 Tex. 611, 245 S.W.2d 477.

We think that plaintiff’s pleading that the 5 defendants “expressly promised and agreed to pay to plaintiff for the services performed, furnished, or caused to be furnished by plaintiff”; and had not paid for some $7500. balance due for same, is sufficient to plead a cause of action against all 5 defendants.

As noted, the plaintiff proved a cause of action against United and Ajax. The fact that defendants Hartley, Bearfield and International were oral guarantors, and had a defense available to them under Sec. 2, Article 3995, Vernon’s Ann.Civ.St., relates to the proof and cannot negate the fact that plaintiffs did in fact “plead” a cause of action. The Statute of Frauds (Sec. 2, Art. 3995, Vernon’s Ann.Civ.St.) is a defense which must affirmatively be set forth. Rule 94, Texas Rules of Civil Procedure. Such does not have to be affirmatively negated by plaintiff. The failure to raise such defense results in a waiver of such defense. 26 T.J. Sec. 135, p. 305; Sec. 136, p. 307.

It follows that we think plaintiffs “plead” a cause of action against all 5 defendants, and proved a cause of action against United and Ajax, the resident defendants. Under the authorities, venue of the cause of action against all 5 defendants, lies in Dallas County.

The judgment of the trial court is reversed and judgment rendered in plaintiff’s favor overruling such pleas of privilege.

Reversed and rendered.


author: MASSEY, Chief Justice.

text:
    The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellant, v. Mrs. Clyde EGGLESTON, Appellee.
    No. 16331.
    Court of Civil Appeals of Texas. Fort Worth.
    May 11, 1962.

      Prothro & Sellers, and Lee Sellers, Wichita Falls, for appellant.
    Irvin J. Vogel, Wichita Falls, for appel-lee.
   MASSEY, Chief Justice.

Upon a commercial building of Mrs. Clyde Eggleston, appellee herein, the appellant company, Millers Mutual Fire Insurance Company of Texas, wrote a policy contract insuring the building against loss by lightning. On the evening of June 24, 1961, while said policy was in effect, a loss occurred as the result of lightning striking the roof of the building, damaging a substantial portion thereof. Claim was made under the policy and liability for the loss was denied, after which appellee and her husband had the roof repaired. Suit was thereafter filed. Trial was before the court without a jury. Judgment was rendered for the ap-pellee and her husband against the insurance company in the amount proven to have been the reasonable cost of necessary repairs. An appeal was taken.

Judgment reversed. Cause remanded for another trial.

The basis of our reversal is the error of the court in rendering judgment for the amount expended in the repairs to the insured building made necessary on account of the loss, when said amount was not shown to have been the measure of damages applicable to the loss. The measure of damages applicable, under provision of the insurance policy, was the common law measure, i. e., the difference in value of the insured building in its locality immediately prior to the occurrence of the loss and immediately subsequent thereto.

The policy contained limitations upon liability applicable to the foregoing measure of damage, only one of which need be noted. Said limitation is as fallows: “liability hereunder shall not exceed * * * the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, * *

In the trial court appellee pleaded the fact that the market value of the building insured, immediately prior to the time of the loss, was $28,760.00, and that immediately subsequent to the loss the value was $24,-097.70. By calculation it is to be observed that the amount of loss was therein alleged to be $4,662.30. Immediately following such allegation was a paragraph wherein it was alleged that the damage done to the building as the result of having been struck by lightning was necessarily repaired at a reasonable cost of $4,662.30.

The trial court made findings of fact and conclusions of law, including the finding that appellee repaired the damage to the building at the reasonable, necessary and customary cost in Wichita Falls, Texas, of $4,587.50, which was the reasonable, necessary and customary cost of the repairs in Wichita Falls, made necessary by lightning striking the roof of appellee’s building; and that the appellant company, by reason of the contract of insurance, was obligated to pay appellee for the reasonable, necessary and customary cost of repairing the building roof and placing it in as good a condition as it was immediately prior to the time said roof was struck by lightning.

Neither in the judgment nor in the Findings of Fact and Conclusions of Law was it ever stated that the court was of the opinion, and found, that the difference in value of the building immediately before and immediately subsequent to the occurrence of the loss and damage thereto amounted to $4,587.50, the amount for which judgment was rendered.

It is apparent that the judgment was not based upon the decrease in value of the insured building by reason of the damage done thereto by lightning, i. e., difference in value before and after, but was based upon the proviso of the policy which was a limitation applicable to the aforesaid measure.

The question is posed: “Is the‘reasonable cost of necessary repairs’ necessarily the same or less than the figure which would be the difference in value before and after the loss necessitating the repairs?” We are of the opinion that it was not, and that by reason of the entry of judgment based upon repair costs as a measure, rather than upon such difference in value, reversible error is apparent.

It is not to be doubted that the reasonable cost of necessary repairs to any damaged property, real or personal, could amount to a figure which would be greater than the market value of the property before the damage occurred. By the same token, the reasonable costs of necessary repairs to any damaged property could amount to a figure which would be in excess of the difference in market value before and after the damage was sustained. While we are of the opinion that proof of the reasonable cost of repairs necessary to restore the building to its former condition constituted evidence of damage which could have justified a finding of diminished value (by reason of damage), which would support a judgment under the common law measure of damages, we believe it would be necessary that such a finding actually be made if the judgment could be considered to have requisite support. No such finding was made in the instant case. The evidence in the record was only upon the matter of cost of repairs and there was no direct evidence of the value of the property either before or after the time of the loss.

The diminishment in value of the appellee’s building, resulting on account of the loss done thereto by lightning, would be an issuable fact independent of that raised upon the matter of reasonable cost of necessary repairs. It was only as to the latter that an express finding was made by the trial judge, and the judgment was based upon such finding. One of the advantages accruing to an appellant through a request for express findings and conclusions under the provisions of Texas Rule Civil Procedure 296, “Conclusions of Fact and Law”, is the avoidance of findings that would otherwise be implied to support the judgment. Duncan v. Willis, 1957, 157 Tex. 316, 302 S.W.2d 627, 634, and cases cited. See also McDonald, Texas Civil Practice, p. 1288 “Nonjury Trial”, sec. 16.05, “Findings of Fact and Conclusions of Law. A. General”.

A finding (not made) by the trial court of any amount as the diminishment in value of the building insured as the result of the loss would not have been an element of the finding made as to reasonable costs •of necessary repairs, and therefore could not he treated as an omitted finding presumed to be supplied in support of the judgment. T.R.C.P. 299, “Omitted Findings”; McDonald, Texas Civil Practice, p. 1299, “Nonjury Trial”, sec. 16.09, “Omitted Findings”.

By other points of error the appellant insurance company contends that there was no evidence, or in the alternative insufficient evidence, to support the finding of the trial court (in its Findings of Fact) that the appellee’s loss was occasioned by lightning. We have examined the whole record and reached the conclusion that there was ample evidence which justified the finding in this respect. Said points of error are overruled.

Judgment is reversed and the cause remanded for another trial.


author: DIXON, Chief Justice.

text:
    Ralph Stephen FLOREK, Relator, v. Bill SHAW et al., Respondents.
    No. 16127.
    Court of Civil Appeals of Texas. Dallas.
    May 11, 1962.
    Fritz & Vinson, John R. Bryant, Dallas, for relator.
    Henry Wade, Dist. Atty., John J. Orvis, Asst. Dist. Atty., Thompson, Knight, Wright & Simmons, Dan Rogers and Jerry L. Buchmeyer, Dallas, for respondents.
   DIXON, Chief Justice.

Relator Ralph Stephen Florek has filed a petition for a writ of mandamus ordering Respondent Bill Shaw, District Clerk of Dallas County, Texas, to prepare a Transcript for Appeal in Cause No. 65,329, styled Ralph Stephen Florek v. Merchants Retail Credit Association, et al., in the 116th District Court of Dallas County. The petition also asks that this Court direct Hon. F. B. Davenport, Judge of said 116th District Court, to order Respondent Shaw to prepare and furnish the Transcript.

The record discloses that Relator heretofore filed an affidavit of inability to pay costs in Cause No. 65,329, which affidavit was duly contested by the District Clerk. On February 14, 1962 the trial court signed an order sustaining the contest, the said order requiring Relator to give security for costs within twenty days. The order further provides for dismissal of the cause of action as of the twentieth day in the event Relator should fail to give security for costs.

On February 22, 1962, prior to the expiration of the twenty day period, Relator gave notice of appeal as follows: “Plaintiff, Ralph Stephen Florek, in the above entitled and numbered cause herewith give (sic) notice of appeal to the Court of Civil Appeals, Fifth Supreme Judicial District, from the order of this Court of February 14, 1962, sustaining a contest of Plaintiff’s Affidavit of Inability to Pay Costs." (emphasis ours)

Also on February 22, 1962 Relator filed an affidavit in lieu of cost bond on appeal. This affidavit was not contested. Nevertheless Respondent Bill Shaw declined to prepare and furnish Relator with a Transcript for Appeal, and the District Judge declined to order Respondent Shaw to do so. Thereupon the Relator with our permission filed the petition for a writ of mandamus now under consideration.

We must refuse to grant the writ. It is plain, as shown by the express language of Relator’s notice of appeal, that he seeks to appeal from an order sustaining a contest of his affidavit of inability to pay costs. The order is interlocutory in nature, therefore, is not appealable. Burleson v. Rawlins, Tex.Civ.App., 174 S.W.2d 979; Thoms v. Eskew, Tex.Civ.App., 81 S.W.2d 713. Therefore it was proper for the trial court to refuse to order the District Clerk to prepare a Transcript and the District Clerk was not under duty to prepare and furnish a Transcript.

The application for a writ of mandamus is refused.


author: WILSON, Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. Harold G. JANSEN, Appellee.
    No. 3995.
    Court of Civil Appeals of Texas. Waco.
    May 17, 1962.
    Rehearing Denied June 7, 1962.

      Joe Bailey Humphreys, Dallas, for appellant.
    Jones, Phillips, Barnes & Watkins, Jack Gay, Dallas, for appellee.
   WILSON, Justice.

Insurer appeals from judgment for benefits under its hospitalization policy.

Appellant’s points are such as the court “erred in failing to sustain appellant’s motion for instructed verdict,” and motion for judgment; “the court erred in overruling appellant’s motion for new trial”; “the judgment (and verdict) is without support in the evidence”; the court erred in overruling appellant’s objections “to the charge,” and “special exceptions to appel-lee’s petition.”

The motion for instructed verdict states no specific ground therefor, as required by Rule 268, Texas Rules of Civil Procedure. The motion for new trial contains no specific grounds, but its generality is characterized by the quoted points. Both the motion for new trial and these points are too general to preserve any error for review, to require consideration, or to constitute a basis on which to predicate reversal. Rules 321, 322; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W. 2d 909, writ ref. n. r. e., and cases cited.

By a liberal construction of the Rules, however, we consider appellant’s point that the court erred in overruling its “motion for correct judgment” as being a complaint of overruling a motion for judgment notwithstanding the verdict, not required to be preserved in the motion for new trial. This motion asserted there was no evidence to support the jury finding that the institution to which appellee was admitted was a “hospital” under the policy definition of that term; or the further finding that he was “not suffering from a nervous or mental disorder during the term of his confinement” therein.

The policy provided insurer would pay certain benefits for expense of hospital confinement resulting from sickness. It excluded hospitalization and other loss “for nervous or mental disorders or rest cure.” Insurer pleaded the exclusion, alleging the confinement was the result of a nervous or mental disorder, and was in the nature of a rest cure.

Aside from the fact that no issue was submitted as to whether the benefits sought were “for” items embraced in the quoted exclusion, and appellant requested none; and apart from the fact that the issue submitted was limited to an inquiry as to whether appellee was “suffering from” such disorders during his hospitalization, an evidentiary issue; and notwithstanding these matters are not specified in the motion

for. new trial, we find evidence that insured was hospitalized for arteriosclerosis and cerebral atrophy, a pathological condition, not “a nervous or mental disorder”; that it affected motor and physical functions, not mental; that it was “functional and organic,” not nervous.

The policy defined “hospital” as “an institution which has a laboratory, X-ray equipment and an operating room where major surgical operations may be performed, and which maintains permanent and full-time facilities for the care of overnight resident patients under the supervision of a licensed Doctor of Medicine or Osteopathy, and which has a Graduate Registered Nurse always on duty.”

Appellant does not brief the contention that the institution in question was not a “hospital” as the jury found, but the motion for judgment notwithstanding the finding may be construed as seeking to have it disregarded because there was no proof “that any ‘doctor’ was a licensed Doctor,” or that “any Graduate Registered Nurse was always on duty.” We have decided— perhaps giving more than a liberal construction to the Rules — to consider the contention in the motion. The evidence was that the institution had “three doctors on its staff,” and from four to six registered nurses. The doctors were also on the staffs of the Methodist Hospital. A named doctor was in charge of the “medical affairs.” He was an “M. D.”, licensed as such by the Texas Department of Health to conduct a private mental hospital under the provisions of Arts. 5547-89 and 5547-90, Vernon’s Ann.Tex.Stats., which require that the person in charge be a certified physician. It is presumed that public officers performed their duties in a proper and lawful manner. Anderson v. Polk, 117 Tex. 73, 297 S.W. 219, 222; and did not authorize an unlicensed physician to practice medicine in contravention of Arts. 739-741, Vernon’s Ann. P.C.

Neither the policy nor the statutes define “Graduate Registered Nurse,” but Art. 4518, Sec. 2 provides that no person shall be certified as a graduate of any school of nursing without having completed the prescribed course of study in an accredited school or program; and Sec. 3 thereof prescribes that every applicant for registration shall present evidence of completion of an accredited program of professional nursing education. The evidence was that the institution “always” had from four to six registered nurses on its staff during the entire period appellee was a patient. We think the evidence in these respects, therefore, was adquate to support the finding that the institution was a “hospital” under the policy. See Reserve Life Ins. Co. v. Marr, 9 Cir., 254 F.2d 289; McKinney v. American Security Life Ins. Co., La.App., 1954, 76 So.2d 630.

Appellant’s complaint that the judgment included attorney’s fees is not assigned in the motion for new trial, as required by Rules 320 and 324, and is not preserved for review. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; 3 Tex.Jur.2d 447. Affirmed.


text:
    William Lee FOLSE, Appellant, v. Carla C. FOLSE, Appellee.
    No. 4014.
    Court of Civil Appeals of Texas. Waco.
    April 26, 1962.

      Thos. F. Nash and Jack Stuart Cole, Dallas, for appellant.
    Robert B. Harshey, Dallas, for appellee.
   McDONALD, Chief Justice.

Carla Folse, plaintiff, sued William Lee Folse, defendant, for divorce. Trial was to the court without a jury which granted plaintiff a divorce; awarded custody of 2 minor children to plaintiff; divided the parties’ property in accordance with a contract between the parties; and required defendant to contribute $260. per month towards the children’s support.

The Trial Court filed Findings of Fact and Conclusions of Law, which found, among other things, that defendant had been guilty of a course of conduct for some 18 months which amounts to cruelty and rendered it wholly insupportable for plaintiff to live with defendant as husband and wife; that defendant is addicted to gambling and irresponsibly gambled and lost community funds, which amounted to cruelty; that plaintiff’s allegations of excesses and cruel treatment of such a nature as to render the parties’ further living together insupportable are supported fully, clearly and satisfactorily by the evidence; and that plaintiff is entitled to a divorce.

Defendant appeals on 18 points, which contend that there is no evidence, or insufficient evidence, to support specific findings of fact; the findings with response to defendant’s gambling away of community funds; and the decree of divorce as a whole.

The record reflects that defendant gambled constantly; he himself testified that he gambled on Thursday nights and Saturday afternoons, and that on one occasion he lost $1000. in Las Vegas, Nevada.

This divorce, as are all divorce cases, especially where there are children, is certainly regrettable. Nevertheless, we think the grounds for divorce were proven, and there is ample evidence to support the Trial Court’s findings with reference to defendant’s gambling and such constituting cruel treatment of the plaintiff. In reviewing the evidence, we bear in mind that the acts constituting the alleged excesses, outrages and cruel treatment must he established by full, clear and satisfactory evidence. However, the question and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of facts. Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794; McGinnes v. McGinnes, Tex.Civ.App., 322 S.W.2d 417; Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625; Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112; Armstrong v. Armstrong, Tex.Civ.App., 350 S.W.2d 348. We think that the evidence is sufficient to support the Trial Court’s finding of cruel treatment; and sufficient to sustain the Trial Court’s judgment of divorce. Defendant’s points are overruled, and the judgment of the Trial Court is affirmed.


text:
    W. C. HENGER, Appellant and Cross-Appellee, v. Lewis A. SALE, Appellee and Cross-Appellant.
    No. 3986.
    Court of Civil Appeals of Texas. Waco.
    May 3, 1962.
    Rehearing Denied May 24, 1962.
    James R. Rodgers, and James W. Left-wich, Dallas, Lloyd E. Elliott, Brundidge, Fountain, Elliott & Bateman, Dallas, for appellant.
    Wm. Andress, Jr., Dallas, for appellee.
   WILSON, Justice.

Two appeals — one by plaintiff as to relief denied, and another by a defendant from judgment against him — are presented in this corporate stockholder’s derivative action. It is a jury case.

Plaintiff, Sale, who was an officer and director, and owned 35% of its capital stock, sued Bachman Center Corporation, its president, Henger, and two others of its directors, Wallace and Moore.

In one count, Sale alleged the individual defendants failed to take advantage of a written proposal made by a contractor to purchase earth from the corporation, but gave it away, thereby breaching their fiduciary duty as directors. On the jury verdict judgment for use and benefit of the corporation was rendered against Henger as prayed for in this count, and he appeals. A take-nothing judgment was rendered as to the other directors.

Plaintiff also alleged these directors depleted all corporate assets by paying to themselves (or other companies controlled by them) various sums from proceeds of sale of corporate assets in the guise of repayment of unauthorized loans made by them to the corporation, which payments were without plaintiff’s knowledge or action of the board of directors, and for which restitution was sought. As to this count j udgment was rendered for defendant Moore on the verdict, and for defendants Henger and Wallace after disregarding jury findings. Plaintiff appeals from this portion of the judgment.

1. Defendants Appeal.

The corporation was organized to develop a shopping center in Dallas, and owned land on which it proposed to construct the center. A contracting concern, which intended to bid on a nearby airport construction project, delivered a letter to plaintiff Sale dated October 20, 1956, addressed toi the corporation, proposing to excavate and remove from the center site 230,621 cubic yards of earth at 150 per yard, from such locations and in such manner as that excavation for the proposed center would also be accomplished. The proposal was conditioned upon obtaining the airport contract, which was subsequently awarded to this contractor. The proposal recited that since “Bachman Center site grading plans are incomplete at this time it is difficult to pinpoint the exact location or method of excavation” but it was intended that excavation be to rough grade lines in accordance with the corporation’s site plans; and since fill quantities were unknown, none were included in the proposal. Defendant Henger was then president of the corporation. ;

The board of directors adopted'a resolution December 21, 1956, after Sale and another director “reported on negotiations” relating to the excavation proposal: “thaf the officers of this corporation be, and they are hereby authorized and directed to sell not to exceed 230,000 cubic yards of earth at a price of 150 per cubic yard on such terms and conditions as may be determined by the president of the corporation, and his execution of any such contract to be conclusive evidence of his approval of such terms and conditions.” The by-laws provided the president should have general and active management of the corporation, “and see that all orders and resolutions of the board of directors are carried into effect,” and that other officers should have such powers and duties as the board prescribed. Sale was a vice-president, as were the other defendants. Sale brought the proposal letter to the December board meeting.

Henger testified Sale was instructed ;to obtain a contract for presentation to the board at a special meeting for approvál; that Sale was told the proposal was not clear enough for a contract; that the contracting firm “wouldn’t give us a contract;” that a contract couldn’t be made, and the: firm “refused to give us a contract.” He wrote no letter accepting the proposal, he said, because the board did not authorize him to' ’d'o so, and “wouldn’t have me accept the pro1-posal.” He testified the contractor “didn’t want the dirt.” His evidence was that the directors attempted to interest others . in moving the dirt; that Sale reported .“he could get someone who would pay maybe 1(⅝ a yard, and he was instructed to bring a proposal or contract. He failed to do it. Eventually we found a firm who would move it,” without paying for it. Henger’s testimony was that dirt needed by the contractor on the airport project was available and actually used from the excavation for airline buildings on that proj ect. His evidence as to why no contract was effected was excluded, and his testimony that Sale was instructed to “get a contract” was stricken on objection that the resolution imposed this duty on the president. He testified as to details not included in the proposal which were considered necessary to be agreed upon.

Another officer-director, not a party, was not permitted to testify to what transpired at the December 21st meeting leading to the resolution, or what Henger said thereafter. Conversations of this director with the contractor’s manager relating to the sale of earth were also excluded on plaintiff’s objection that only the president “had been authorized to work this out.” The court struck his testimony that “they were not able to get a contract,” and sustained plaintiff’s general objection to his testimony as to the reason.

The contractor’s engineer testified to preliminary conversations with Sale, and delivery of the written proposal to him. Thereafter he and Sale “had many conversations” concerning the proposal, but he was not permitted to state why no dirt was then taken from the Bachman Center site. The court struck his testimony that the dirt was not needed. He testified that when he inquired of Sale about a written contract, he was told “they refused to give me anything in writing, signed, to assure me it would be made available.” This contractor later used 100,000 yards of dirt from the corporation site for a freeway project, and he “paid the bankruptcy court” for it after his sub-contractor became bankrupt. There is no other evidence showing the nature of the latter transaction.

Plaintiff Sale did not testify concerning the proposal for removal or sale of dirt, although negotiation for other contracts relating to leases for the proposed project and preparation of preliminary planning were conducted by him. In 1958 all directors adopted a resolution approving, ratifying and confirming “all actions taken by the officers and directors” since December 21, 1956.

The jury found Henger did not act “in good faith and without assuming any position in conflict with” the corporation’s interest in the transaction; that his “actions were taken without personal benefit to him”, and he “failed to exercise ordinary care and diligence in the discharge of his duty” in the transaction. Based on this verdict, judgment for the value of 230,621 cubic yards of dirt at 15(£ per cubic yard was rendered against him.

Appellant urges there is no evidence to support the adverse findings or judgment. We agree. The resolution did not impose on Henger any exclusive duty or direction to sell earth or negotiate a contract. Those duties rested on all “the officers of the corporation”, including plaintiff, who does not deny he was instructed to attempt to obtain a contract, and was unable to do so. As we construe the December 21st resolution, it authorized the president to determine, and approve terms and conditions of any contract to be negotiated, and to execute it. There is nothing to indicate absence of Henger’s good faith, or existence of any conflict of interest. We find nothing to reflect lack of diligence or ordinary care on his part. We find no basis for computing damage to the corporation or liability of Henger. Cates v. Sparkman, 73 Tex. 619, 11 S.W. 846, 849; Patton v. Nicholas, 154 Tex. 385, 394, 279 S.W.2d 848, 853.

This portion of the judgment is reversed and judgment here rendered for appellant, Henger. If it should be determined we are required to pass on his other points, we would sustain all.

2. Plaintiff’s appeal.

In 1954 plaintiff, Sale, a real estate dealer, obtained a one-year option to purchase a tract from the Slaughter Estate for $605,-000, of which $105,000 was payable in cash. He began the promotion of a shopping center development on the land by procuring an architect’s plans and obtaining a commitment for permanent financing conditioned on obtaining certain major leases from national concerns. At the end of the option term as extended, he had failed to obtain these leases, and sought to interest investors in advancing funds with which to exercise the option. Defendants Wallace and Hen-ger each agreed to advance $26,250, and later defendant Moore and another advanced like amounts. Bachman Center Corporation was then organized, and thereafter Henger, Wallace and Moore advanced further sums for operating expense, interest costs, taxes and other interim requirements pending execution of leases being solicited from prospective tenants by Sale. All these advancements were evidenced by unsecured notes of the corporation. Sale was never successful in obtaining the necessary leases.

In 1958 the corporation sold the land for $700,000 cash, resulting in a net profit on the sale of $182,161.55. Bank loans and other expenses were first paid. Certain of the corporation’s notes to Henger and Wallace ($35,045.68 each) were then paid. From the balance $15,670.43 was applied to each of the three original notes for $26,250 (which had been renewed) issued to Henger, Wallace and Moore, leaving a balance due thereon of over $30,000. After these disbursements $3000 remained as the corporation’s sole asset.

On the trial Henger, Wallace and Moore contended all notes representing advancements by them to the corporation were loans, and that it was agreed by all interested parties prior to incorporation that these loans would be repaid, when the project was complete, out of permanent financing to be made by an insurance company. Henger was interested in obtaining the construction contract, Wallace the mechanical, and Moore the electrical contract for the proposed multi-million dollar shopping center building. Sale was to receive a commission for leases, contributing plans and the option. The additional sums required for capital stock subscription were then paid in by the incorporators.

Plaintiff’s evidence showed he had expended personal funds of approximately $25,000 in promotion and travel expense during his negotiations for leases. These advances were not evidenced by notes, and he was not reimbursed by the corporation. He has a separate action pending for commissions claimed.

There was no resolution or other formal action of the directors authorizing execution of the notes to Henger, Wallace and Moore, and there was no such resolution or formal action authorizing payment of their notes. It appears that agreement to make payments to defendants was made hy Wallace, Henger, Moore and another director at an informal club or luncheon meeting; or at a directors’ meeting not recorded in the minutes, which Sale did not attend, or at which he did not vote for or consent to such payments. The jury found that “all directors” did not know of or consent to the loans made to the corporation by Henger and Wallace ; but all did know of and consented to such loans by Moore, and that no director objected to any of the loans. On motions the court rendered judgment against plaintiff and for Moore on the verdict; and for Henger and Wallace after disregarding the findings. No finding was elicited concerning the manner of authorizing payment to defendants. He contends advancements by defendants were contributions of risk capital, and not loans as they contend. We do not consider it necessary to decide this question.

The evidence does not clearly show the circumstances under which the board of directors authorized payments to Henger, Wallace and Moore, but it does reflect that Sale did not vote for it. There were only four directors besides Sale: The three defendants and one other. If the authorization was at a special meeting, the record indicates it was called without compliance with provisions of the by-laws. If it was at a regular or special meeting not shown by the .minutes, a quorum was not present without counting Henger, Wallace and Moore. San Antonio St. Ry. Co. v. Adams, 87 Tex. 125, 26 S.W. 1040, 1043. See Art. 2.35 Business Corporation Act, V.A.T.S.

Corporate officers and directors are not’ disqualified from dealing with the corporation, but such transactions are subject to' strict scrutiny, and the burden is on the officers and directors to establish their fairness. Popperman v. Rest Haven Cemetery, Inc., Tex.Sup., 345 S.W.2d 715, 717. The directors occupy the position of fiduciaries toward the company. Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 431.

If a transaction in which a director is personally interested may be authorized only by his vote, a vote of all stockholders is ordinarily required to authorize it. Scott v.. Farmers’ & Merchants’ Nat. Bank, 97 Tex. 31, 75 S.W. 7, 9, 104 Am.St.Rep. 835; Davis v. Nueces Valley Irr. Co., 103 Tex. 243, 126 S.W. 4, 6; Greathouse v. Martin, 100.Tex. 99, 94 S.W. 322; 3 Hildebrand, Texas Corporations, Sec. 698, p. 61; 1 Mod. Bus.Corp.Act Ann. (1960) Sec. 37, Comm. 3..01(S) p. 629; Lattin, Corporations (1959) Sec. 4, p. 221; Ballentine, Corporations (1946) Sec. 45, p. 131; Stevens, Corporations (1949) pp. 570-574; Lebowitz, Director Misconduct & Shareholder Ratification in Texas, VI Baylor L.Rev. 4. The decisions on this subject are analytically summarized in 3 Fletcher, Encyc. Corporations, (Perm. Ed., rev. 1957) Sec. 908, pp. 322-326.

In our opinion defendants did not discharge their burden of showing the payments to themselves did not constitute an unauthorized preference of themselves, as unsecured creditors or otherwise. Whether all directors, including Sale, knew and consented to “loans” to the corporation is not determinative, nor could the finding constitute a basis here for judgment on the verdict. There is no showing that a quorum of disinterested directors ratified payment of defendants’ claims. We are required to render here the judgment the trial court should have rendered. In our opinion no final judgment could properly be rendered on the verdict. To avoid circuity this portion of the judgment is reversed and remanded. Costs are taxed equally between plaintiff and defendants.