text:
    Eugene WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 35898.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Rehearing Denied Jan. 8, 1964.

      Robert Doss, Denison, Charles E. Hughes, Joe Wolfe (On Appeal Only), Sherman, for appellant.
    R. C. Slagle, Jr., Sp. Pros., Sherman, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, death.

The undisputed evidence, including the confession of the appellant and the testimony of the three eye witnesses, shows that the appellant, a Negro, came to the home of J. R. Ballou some 101/2 miles from Sherman and 31/2 miles from Dorchester, in Grayson County, shortly after 10 o’clock on the night of June 10, 1962; that he was armed with a pistol and after tying the hands and feet of J. R. Ballou and his two sons and the hands of Mrs. Ballou, demanded and took money; threatened to kill all of them; made as if to set fire to the house and finally picked up a .22 caliber rifle that was in the house, loaded it, aimed it first at Mr. Ballou and then at his son Robert Wayne Ballou, the deceased, and fired, the bullet entering the eye and causing the death of Robert Wayne Ballou.

The undisputed evidence further reveals that after the shot was fired Mr. Ballou broke his bonds and lunged at the appellant and was severely injured by being hit over the head with the rifle.

The appellant left after losing possession of the pistol and rifle in the fight in which the mother, father and brother of the deceased engaged the appellant despite their being tied. Some money was taken from the Ballous, but the appellant declined to take a check tendered to him if he would leave them unharmed.

The appellant was apprehended the following morning and confessed to the robbery and the shooting.

Indictment was returned and counsel who so ably represented the appellant in his trial and on this appeal were appointed by the court to defend him.

On the last day of December, 1962, the indictment under which he was tried and convicted was returned; the prior indictment was dismissed, and the same attorneys were again appointed to defend. Trial was had beginning January 14, 1963.

The sole defense offered was that of insanity. No preliminary trial was sought on the issue but it was the theory and contention of the defense that the appellant was insane at the time of the trial as well as at the time of the killing.

The issue of appellant’s sanity was closely contested. Dr. David Wells, the only practicing psychiatrist in Grayson County, testified that he examined the appellant and conducted tests as to his mental condition, one being the Wide Range Achievement test designed to test mental capacity as opposed to mental illness, and the other the Rorschach test which tests both mental capacity and the presence of possible mental illness.

Dr. Wells testified that the Wide Range Achievement test showed that the appellant had the mental capacity of approximately a 12 year old and the Rorschach test supported this, but also was “possibly suggestive of a mental illness separate from the loss of mental capacity” and that because of his defective mental capacity it was much harder to “ascertain completely” whether Schizophrenia was present; that the test was suggestive of Schizophrenia but not conclusive. Based upon his tests and examination of the appellant, and the hypothetical questions stating the facts shown by the evidence, Dr. Wells expressed the opinion that the appellant was so dethroned of reason that he did not know the nature or quality of his actions and did not know the difference between right and wrong, both at the time of the killing and the time he was testifying.

The state countered with the testimony of Dr. John Hardy, physician and surgeon who had practiced his profession for 34 years as surgeon and general practitioner. He testified regarding his observation of the appellant on June 16, 1962, and on several occasions thereafter, one of which was on December 9, 1962, and lasted for an hour and a half. Dr. Hardy expressed the opinion that the appellant knew right from wrong; was not dethroned of his reason, and that he was sane at the time he observed him including the time he was testifying.

Also the state called a number of lay witnesses who testified to having observed the appellant; expressed the opinion that he was sane on such occasions and knew right from wrong and that there was nothing in his speech, behavior, appearance, acts or conduct that would cause one to believe that the appellant was insane or of unsound mind.

One of these witnesses was Eugene Payne, a farmer for whom the appellant worked for 5 weeks during May and June, 1962. He testified that appellant drove a tractor, chopped cotton, did garden and yard work under his directions; did an excellent job; that he worked with the appellant “many a day” and had his last conversation with him after sundown on June 9, 1962.

Other witnesses who testified to the sanity of the appellant were William Sample, a farmer, who had been seeing him for about a month previously and was with him on June 10, 1962, for some 4 hours; Otis McKenzie, a salesman, and John Crawford, reporter for the Sherman Democrat, who witnessed his confession; Texas Rangers Lewis Rigler and G. W. Burks; G. W. Blanton, Sheriff of Grayson County and his secretary, Marie Robnett.

The issues of insanity were resolved against the appellant and the evidence is sufficient to sustain their findings that he was sane at the time the offense was alleged to have been committed and at the time of trial. McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707.

Complaint is made to the overruling of appellant’s motion for mistrial made at the conclusion of the testimony of J. R. Ballou, father of the deceased, because during his testimony relating to the tying together of the big toes of the deceased by the appellant he testified that Mrs. Ballou commented “You’re pretty good with tying knots. Where did you learn it ?” and the appellant answered “I learned it in prison. We studied things like this out while I was down there.”

No objection was made to this testimony of Mr. Ballou at the time it was given. Counsel did, however, then state: “We have a motion, your Honor, at the first opportunity.”

It is appellant’s contention that the testimony of Mr. Ballou showing the appellant’s reply to the question asked by his wife was not admissible under the res gestae rule because it was not relevant or material to any issue in the case; that the testimony was so prejudicial that no instruction to the jury could cure the harm, and that no instruction to disregard it was given.

Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218, is authority for the state’s position that the evidence was admissible as a res gestae statement.

We need not rest our holding upon this authority alone, however, for it further appears that the complained of testimony of Mr. Ballou was not in response to the question propounded by the state; was not expected by the state, and no objection or motion to exclude such testimony was made and no motion for mistrial was made until after the examination and cross-examination of the witness was completed.

We cannot agree that the complaint to this testimony was timely made or that it is well taken.

Appellant presents by his informal bill of exception No. 2 the contention that Art. 580 C.C.P. was violated in that the defendant was not personally present on January 8, 1963, when certain motions were presented in open court for consideration of the trial judge and testimony of Sheriff Blanton was heard on such motions and the court ruled thereon.

As has been stated, the trial began on January 14, 1963. However, on January 8 appellant filed and presented to the court motions seeking to have the court instruct the county attorney (1) to permit inspection by his counsel of his purported confession and (2) to permit inspection and photo-stating of a letter purportedly written by appellant to the sheriff.

The statement of facts relating to the proceedings had on January 8 shows that motions were made also that defense counsel be furnished (1) a list of trial witnesses, (2) list of witnesses before the grand juries, (3) a motion to supply statements of trial witnesses. No written motions covering these matters appear to have been filed, the matters requested having been supplied and the motions granted.

The statement of facts relating to the hearing on January 8, 1963, also refers to a motion to set aside the indictment, which the court overruled. We find no such motion or exception in writing in the record.

The record of the proceedings on January 8 does not reveal that the appellant was present or was not present." That he was not present was first complained of in the testimony of his counsel after the state had rested and appellant had moved for an instructed verdict and re-urged his motion for mistrial. The question is not before us by bill of exception. See Beard v. State, 164 Tex.Cr.R. 502, 305 S.W.2d 291; Petty v. State, 171 Tex.Cr.R. 617, 352 S.W.2d 285.

The testimony heard by the trial judge on January 8 was that offered by the appellant for the purpose of his bills of exception to the court’s action in overruling his motions. We are cited no authority to support the appellant’s contention that reversal should be ordered because the bills were perfected in the absence of the appellant.

Had the absence of the appellant at the hearing been timely complained of, the evidence heard in his absence might have been reheard in his presence. See Garcia v. State, 5 Tex.App. 337.

Appellant complains of the overruling of his motion to require the production of a letter written by him to the sheriff. The evidence shows that no such letter was in the possession of the sheriff or of state’s counsel.

He complains of the refusal of the court to require that his confession be produced, though our prior holdings support the court’s ruling. Dowling v. State, 167 Tex. Cr.R. 43, 317 S.W.2d 533; Lopez v. State, 158 Tex.Cr.R. 16,252 S.W.2d 701; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726.

The contention is urged that a contrary rule should apply because the confession may have proved helpful to the psychiatrist who examined the appellant.

Dr. Wells appeared to have all of the information which he would have obtained by reading the confession. He testified that he relied upon information he received from the appellant (such as “he admitted to having heard voices”). Hypothetical questions were propounded to him covering all phases of the evidence. There is no showing that the doctor desired to see the confession and his testimony clearly shows that he did not need it to form his opinion that the appellant was insane.

The remaining complaint relates to the excusing, by the clerk, of a member of the special venire who had a legal exemption but failed to swear to her written claim of exemption.

There is no formal bill of exception and no showing that the jury was not completed before the excused juror was reached.

Had counsel desired to question her being excused he should have sought process to require her to re-appear.

The complaint as to the excusing of the juror in the absence of the judge and of the defendant is not before us. Waggoner v. State, 161 Tex.Cr.R. 242, 275 S.W. 2d 821. If so, reversible error is not shown.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Antonio DE LA O, Appellant, v. The STATE of Texas, Appellee.
    No. 36186.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Rehearing Denied. Jan. 8,1964.

      Samuel L. Egger, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, six years.

Electronic repairman Mundine stated that at 1:00 p. m. on the day in question, he was looking out of the show window of his place of business and observed two shabbily dressed men walking across the Navarro Street bridge a short distance away and looking into a parking lot, that he continued to watch the two and saw them approach a station wagon on the parking lot, where one of the men took off his jacket, removed an object from the automobile, wrapped it in the jacket, and the two men left the parking lot. He testified that the pair proceeded across Richmond Street toward Lexington Street and he called the police, that within a matter of minutes he saw appellant running back in the witness’ direction with a police officer in pursuit. He testified that the man who came running in his direction with the police in pursuit had the same physical features and wore the same clothing as one of the men who took the object from the station wagon and positively identified him as being the appellant. He testified that he identified appellant’s picture which was brought to his place of business by the police shortly thereafter.

On the question of value of the tape recorder, which was later shown to have been taken from the station wagon, Mundine testified that he had been in the electronics business for IS years, had bought and sold tape recorders in the past and had seen them bought and sold recently, and that the particular type in question had a reasonable cash market value of $165.00 in San Antonio on the day in question.

Officer Mitchell testified that while on patrol on the day in question, he saw appellant, whom he knew, walking on Lexington (which according to the map introduced in evidence without objection, runs parallel to and is one block north of Richmond Street) carrying a box, that he brought his police car to a halt and dismounted, at which time the box was placed in the doorway of a store and appellant and his companion began running in opposite directions. He testified that he pursued appellant on foot for two blocks, but was unable to overtake him, whereupon he returned to the point where the chase had begun, turned the box in question over to Officer Wondra, and later at the scene of the theft, saw that the box which he had delivered to Wondra contained a tape recorder.

Allen Dale, announcer for a local television station, testified that the tape recorder, which he used in his work for the television station and which was stolen from his station wagon, was less than a year old and had a reasonable cash market value of approximately $160.00. He stated that he had been in the radio and television industry for 17 years and had bought tape recorders during all that period of time.

Appellant did not testify or offer any evidence in his own behalf. We shall discuss the contentions advanced in brief and argument. His principal contention is that the State failed to prove value. During his cross examination of the witness Dale, appellant was able to elicit the admission that his knowledge of the value of used tape recorders had been acquired from talking to other people in the trade and from reading trade magazines.

The last expressions of this Court on this question are in Morris v. State, Tex.Cr. App., 368 S.W.2d 615 and Esparza v. State, Tex.Cr.App., 367 S.W.2d 861, decided in May of this year. In Esparza we said, “While the evidence was hearsay, such is proper proof as to value. Holmes v. State, 126 Tex.Cr.R. 587, 72 S.W.2d 1092.” We have not been persuaded to depart from a rule so recently announced. In addition, in this case we have two witnesses with a combined total experience with tape recorders of 32 years who expressed their personal opinions as to value.

We find no objection to the court’s charge in the transcript and fail to find anything fundamentally erroneous in the charge as given.

The facts as stated are in such close juxtaposition to each other as to eliminate the necessity of the giving of a charge on circumstantial evidence. Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341 and Barker v. State, 168 Tex.Cr.R. 513, 329 S.W. 2d 889.

The court did not err in refusing to permit the court reporter, who took the testimony of the Witness Mundine given at the examining trial, to read the same to the jury, because Mundine admitted on the trial on the merits that he had testified at the examining trial that he could not recognize appellant and his companion except by size and apparel prior to the theft. The testimony offered was to the same effect.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: WERLEIN, Justice.

text:
    Levoy MUSICK, Appellant, v. Arch HOLLINGSWORTH, Trustee, et al., Appellees.
    No. 14151.
    Court of Civil Appeals of Texas. Houston.
    Dec. 12, 1963

      C. C. Divine, Houston, for appellant.
    Bracewell, Reynolds & Patterson; Robert I. Peeples, Houston, for appellees.
   WERLEIN, Justice.

This is an appeal by Levoy Musick from a temporary injunction decreed by the trial court ancillary to pending Cause No. 594,-300 brought by Arch Hollingsworth, Trustee, et al., against J. B. Lucas et ah, in trespass-to-try title and to remove clouds upon the title to certain lands in Harris County, Texas, including a tract of 618.7 acres in the William White Survey, Abstract 829, and a tract known as the G. A. Parker 100 Acre Tract in said survey. The said Levoy Musick is the only defendant who has appealed.

It is sufficient to say that the evidence shows that appellees are in possession of some or all of the property involved in this suit; that appellant has been trying to obtain possession thereof by virtue of certain writs of possession and restitution issued in connection with other suits; that some eleven suits have been filed involving the subject matter of this suit or related subject matters, and that about five of such suits are still pending; that the litigation between the parties hereto has become quite complicated involving disputed questions of fact and law; and that the attempts by appellant herein to obtain possession of the property in question either by virtue of said writs or by resort to force might result in bodily injury to some one or more of the parties connected with or affected by the litigation, as well as property damage. The trial court, in granting the injunction, stated that the testimony demanded it, and that he thought that somebody would get hurt if he did not grant the temporary injunction.

The injunction, among other things, enjoins appellant, pending final hearing and determination of Cause No. 594,300, from-going on or about the premises in question or attempting to gain possession of the premises known as the G. A. Parker 100' Acre Tract, from attempting to take possession of such premises or ousting those living thereupon by force or under any process of law, and from attempting to gain possession by force or otherwise of any of the property which is the subject matter of the present suit.

Appellant’s first two Points of Error,, which are briefed together, assert that plaintiffs’ petition in trespass-to-try title is insufficient to confer upon the court jurisdiction of the parties, and does not state a. cause of action in any of the plaintiffs which would permit recovery in the capacity in which they sue. These points are overruled.

Subsequent to the granting of the temporary injunction in question, this Court had occasion to hear a contempt proceeding growing out of a violation thereof after the appeal from said temporary injunction had been perfected in this Court. In holding appellant in contempt of the temporary injunction, this Court stated in its order: <(The said 133rd District Court had jurisdiction over the cause in which said judgment of injunction was rendered and had jurisdiction to render said judgment of injunction and to issue a writ of injunction thereon and said judgment and writ are not for any reason void, but remain in full force and effect.” See Levoy Musick v. Honorable Wilmer B. Hunt, District Judge, et al., Tex.Civ.App., 364 S.W.2d 252; and Ex parte Musick, Tex.Cr.App., 368 S.W.2d 211. The record in the present appeal clearly shows that the trial court did have jurisdiction of the parties, and that the plaintiffs’ amended petition and amended application for a temporary injunction are sufficient to entitle plaintiffs to sue in the capacity in which they sue herein.

There is no merit in appellant's Points 3 and 4. The injunctive relief granted herein does not undertake to determine who is entitled to the possession of the property in question. It merely undertakes to maintain the status quo during the penden-cy of the main cause of action. The granting of a temporary injunction ancillary to the principal cause of action in order to preserve the status quo, has not infrequently been recognized as a proper procedure. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709; Shelton v. Palmer Grove Methodist Church, 1955, Tex. Civ.App., 279 S.W.2d 917; Lowe & Archer, Texas Practice, Injunctions, Sec. 331, p. 345.

The law is well settled that the granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the trial court. Accordingly, the scope of appellate review is limited to the narrow question of whether the action of the trial judge in granting the injunction constitutes a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Railroad Commission v. Shell Oil Company, Inc., 146 Tex. 286, 206 S.W.2d 235; Janus Films, Inc. v. City of Fort Worth, 1962, 163 Tex. 616, 358 S.W.2d 589. Appellant has no point or assignment to the effect that the granting of the temporary injunction in question constituted a clear abuse of discretion of the trial court. There is nothing with respect thereto before this Court.

The present suit involves serious and complicated controversies which should be determined upon a final hearing of the case on its merits. They may not be determined on a hearing on an application for temporary injunction brought to preserve the status quo during pendency of the principal cause of action. Transport Co. of Texas v. Robertson Transports, Inc., 1953, 152 Tex. 551, 261 S.W.2d 549; James v. E. Weinstein & Sons, 1929, Tex.Com. App., 12 S.W.2d 959; Anderson v. Tall Timbers Corporation, 1961, 162 Tex. 450, 347 S.W.2d 592.

Judgment of the trial court is affirmed.


author: McDonald, judge.

text:
    Cruz VELA, Appellant, v. The STATE of Texas, Appellee.
    No. 36238.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.

      Marvin Foster, Jr., Cor-pus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawful possession of marijuana; the punishment, two years in the state penitentiary.

The evidence reflects that Joe Kinder, an undercover agent for the Narcotics Division of the Texas Department of Public Safety, went to Corpus Christi at the request of Ranger, Frank Horger; that Kinder had been trained by the State and by the Treasury Department, Bureau of Narcotics.

Kinder testified that in Corpus Christi he associated with disreputable characters; went to beer joints and to a marijuana party, but did not smoke any marijuana; that on the 6th of December, 1962, he drove Alberto Estrada to the Paradise Club where appellant got into the car with them; that they drove around and finally stopped by a vacant lot, where appellant and Estrada got out of the car and walked off. Approximately ten minutes later Estrada came back to the car, and he (Kinder) went to Estrada’s house; that he (Kinder) had tried to buy some marijuana from Estrada before and could not, but after they returned from the meeting with appellant, a purchase was made from Estrada.

Kinder testified further that on the 7th day of January, the night in question, in the company of Alberto Estrada and an informer, while driving in the vicinity of Baldwin Street, Estrada said, “Stop,” and upon stopping, a car pulled up directly behind them; that he (Kinder) was sitting in the back seat of the informer’s automobile; and through the back window of the car he saw appellant get out of the second car; that Estrada talked to appellant at the rear of the informer’s car, some S steps away. Estrada returned to the car and said, “He had, he had got some stuff, how much do you want?” that he (Kinder) handed Estrada $5.00 and said, “Buy me a nickle box,” that Estrada went back to where appellant remained standing; that Estrada and appellant were never out of his sight. Appellant passed something to Estrada who immediately returned to the car and handed Kinder a penny match box which he (Kinder) put in his pocket.

Kinder further testified that his eyes remained on Estrada’s hand throughout the transaction and that after taking the item from appellant Estrada did not put his hand in his pocket, and when the box was handed to him (Kinder) there was nothing else in Estrada’s hand; that upon returning to his motel, the contents of the match box were examined, then sealed and marked for identification.

J. D. Chastain, laboratory manager of the crime laboratory for the Texas Department of Public Safety, testified that he examined the contents of the match box and found it to contain 3 grams of marijuana.

We find the evidence sufficient to ■sustain the conviction.

Appellant contends officer Kinder was ■“particeps criminis” in the crime and that the issues of entrapment and the need for corroboration of an accomplice witness’ testimony were raised by the evidence. He contends that the trial court erred in not so charging the jury.

We find no error in the trial court’s refusal to submit the issues as requested. An officer does not become a party to a crime if he participates therein solely for the purpose of apprehending one engaged in crime and bringing him to justice. See Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822 and numerous cases cited therein. We agree with appellant that if there is a conflict in the evidence the question should be submitted to the jury. A thorough search of the record reveals an absence of testimony supporting appellant’s contention putting Officer Kinder’s status in issue.

“ * * * jf there is not enough evidence to support a charge against the witness as either a principal, an accomplice or an accessory, then he is not an accomplice witness.” Lundy v. State, 165 Tex.Cr.R. 111, 296 S.W.2d 775; see also Martoni v. State, 74 Tex.Cr.R. 90, 167 S.W. 349, a case similar to the one at bar in which we held, “Under the statute and many decisions of this state he was not an accomplice, so that the court did not err in not charging that he was such, and requiring his testimony to be corroborated.”

It is the general rule that where the criminal intent originates in the mind of the accused, the fact that an officer furnishes the opportunity for, or aids the accused in the commission of a crime, constitutes no defense to such prosecution. Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906; Ivy v. State, 161 Tex.Cr.R. 371, 277 S.W.2d 712, and cases cited therein. In the instant case the issue of entrapment was not raised by the evidence.

Accordingly, we conclude that appellant was not entitled to the charges requested.

Finding no reversible error, the judgment is affirmed.


author: BARROW, Justice.

text:
    W. H. O’HARA, Appellant, v. FERGUSON MACK TRUCK CO., Inc., Appellee.
    No. 14153.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1963.
    Rehearing Denied Nov. 20,1963.

      Howard H. Hasting, William J. Salyer, San Antonio, for appellant.
    Trueheart, McMillan & Russell, San Antonio, for appellee.
   BARROW, Justice.

This suit was filed by W. H. O’Hara to recover actual and exemplary damages from Ferguson Mack Truck Co., Inc., for wrongful sequestration of two truck-tractors. The jury verdict was favorable to O’Hara, and found damages in the amounts of $16,000 actual, and $73,500 exemplary. The trial court concluded that there was no evidence to support the jury’s finding that Ferguson Company acted maliciously in making the affidavit and procuring the writ of sequestration, and that there was no evidence to support the finding of exemplary damages. Judgment was therefore entered for actual damages only, and O’Hara has perfected this appeal. There is no appeal from the judgment for actual damages.

The facts are largely undisputed. Prior to December 6, 1961, appellant owned three truck-tractors which were used primarily to haul produce from California to San Antonio, Texas. His business was not in a strong financial position at that time. One of his tractors had been held for several months by appellee, due to appellant’s failure to pay a repair bill of approximately $1200; and he owed appellee over $2600 for wreck repairs on another tractor. Appellant also owed about $3100 on the purchase price of the tractors, and several thousand dollars on a United States Government tax lien. Appellee agreed to refinance appellant in the amount of $15,000, and on December 6, 1961, appellant executed a note in this amount, secured by a chattel mortgage on the three truck-tractors. The note was payable at the Alamo National Bank, in the amount of $625 each month, commencing on January 20, 1962. .The note and chattel mortgage contained an acceleration clause in the event of default of any installment, and also authorized the mortgagee, in the event of default, to take immediate possession of the property and to sell same at either public or private sale.

This note was assigned by appellee to Alamo National Bank with recourse. Appellant did not timely make the payment due on January 20, 1962. Appellee, after being unable to contact appellant, made this payment to the Bank. Appellant was not aware of this payment by appellee, and on February 8, 1962, paid the Bank the sum of $625, and was given a receipt showing payment of the January 20th installment. Appellee did not learn of this payment by appellant until February 20th. Appellee’s general manager, Price Riley, testified that when they were unable to contact appellant by February 1st, concerning the January 20th installment, appellee started looking for the tractors. On February 15th, Riley saw two of the tractors at a service station, apparently being prepared for a trip. Appellant testified that the tractors were to leave on a regular round-trip to California. Riley immediately contacted his attorney and requested that the mortgaged units be repossessed. This attorney ascertained that the note had been assigned to the Bank and advised Riley that it would be necessary for the Bank to bring the suit, or else reassign the note and mortgage to appellee.

Riley testified that he telephoned the Bank and was advised by an employee in charge of the note department, in the temporary absence of the executive officer, that the note would be reassigned to appellee immediately. This Bank employee did not testify and was not identified by Riley. Riley telephoned his attorney after this conversation and advised the attorney of the purported reassignment by the Bank to appellee. Suit was filed on February 15th on behalf of appellee, and writ of sequestration was issued upon the affidavit of ap-pellee’s credit manager that he feared appellant would remove the property out of Bexar County during the pendency of the suit. The two tractors were seized that day by the Bexar County Sheriff, under this writ of sequestration.

On February 20, 1962, appellant tendered to the Bank the sum of $625 for the second payment on the note. Although the Bank still owned the note, this tender was refused after the executive officer in charge of the note department contacted appellee. The Bank officer advised appellant that ap-pellee was repurchasing the note and that appellant should take the money to appel-lee. The note was not actually reassigned to appellee until February 22, 1962. No further tender was made to either the Bank or appellee. On March 22, 1962, appellee filed an amended petition in which it alleged that the January 20th payment was not timely made, and that no payment was made, as required, on either February 20th or March 20th. Appellant denied that he was in default and filed cross-action for actual and exemplary damages for wrongful sequestration. On April 12, 1962, the trial court severed appellee’s petition from the cross-action and granted appellee a summary judgment on the note and foreclosure of the chattel mortgage. No appeal was perfected by appellant from this judgment for appellee. All three tractors were subsequently sold by the sheriff at public sale. The cross-action was replead-ed by appellant under the severed cause number, as ordered by the trial court, and proceeded to trial on November 13, 1962.

The jury returned a verdict substantially as follows: (1) That when appellee’s credit manager signed the affidavit of sequestration he did not fear that the tractors would be removed out of Bexar County during pendency of the suit; (2) the reasonable market value of the two tractors seized on February 15th was $8,000 each; (3) an officer or agent of the Bank did not verbally agree with Riley on February 15th that the note would be reassigned to appellee; (4) that appellee acted without probable cause in making the affidavit and procuring the writ of sequestration; (5) that appellee acted maliciously in making the affidavit and procuring the writ thereon; (6) that $73,500 should be awarded as exemplary damages.

Appellant asserts that there was sufficient evidence to support the jury’s ver-diet as to both malice and exemplary damages. Appellee by cross-points asserts that there was no evidence to support any of the findings of the jury. In passing on these points all evidence must be viewed from the standpoint most favorable to appellant. Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194.

The rule is now established in Texas that if a garnishment was wrongfully issued and levied, a cause of action arises for actual damages. However, to justify recovery of exemplary damages, :such issuance must not only be wrongful, but procured without probable cause and maliciously. Peerless Oil & Gas Co. v. Teas, Tex.Civ.App., 138 S.W.2d 637, affirmed, 138 Tex. 301, 158 S.W.2d 758; Woodard v. Tatum, Tex.Civ.App., 277 S. W.2d 943; Thomas v. Callaway, Tex.Civ. App., 251 S.W.2d 921. The Supreme Court recently, in Ware v. Paxton, Tex., 359 S. W.2d 897, considered the question of whether there was evidence to support a jury finding of exemplary damages, and quoted with approval the rule from 25 C.J.S. Damages § 123, p. 726, as follows:

“The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.”

See also, Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022; Mathes v. Williams, Tex. Civ.App., 134 S.W.2d 853; Graham v. Walters, Tex.Civ.App., 45 S.W.2d 281.

Therefore, under the guidance of the •above rule, we must examine the conduct of appellee in making the affidavit and procuring the writ of sequestration. It is significant that the appellant’s default in payment of the note and appellee’s right to foreclose, was -adjudicated by the severed judgment entered April 12, 1962. This was a final judgment. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76; Pan American Petroleum Corp. v. Tex. Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200.

It is our opinion that there is no evidence to support a finding that appellee acted with malice in making the affidavit and procuring the writ of sequestration. Art. 6840(2) Vernon’s Ann.Civ.Stats., authorizes the issuance of a writ of sequestration when a person suing for title or possession of any personal property makes oath that he fears the property will be removed out of the limits of the county during the pendency of the suit. The evidence is undisputed that appellant was preparing the tractors for a trip to California at the time the affidavit was executed.

There is no evidence that appellee knew, at the time the writ was procured, that the Bank on February 8th had accepted from appellant the payment due January 20th. Since appellee had made this payment, it had every reason to assume that it would have been informed of the late payment by appellant. Appellee was probably negligent in authorizing the suit without making sure that the note was reassigned to it. However, it is seen from the events of February 20th, that there was no dispute between the Bank and appellee over the right of appel-lee to have the note reassigned to it. There is no evidence of any oppressive conduct of appellee, or statements by any of its officers, which would indicate any malice on its part. There is nothing in the record to show that appellee did not honestly believe that the note was in default and, in view of appellant’s weak financial condition, that it must act to preserve its security-

Under this record, the trial court properly disregarded the jury finding of malice and refused to permit appellant to recover his exemplary damages.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    George H. ULLRICH, Jr., et ux., Appellants, v. SOUTHAMPTON CIVIC CLUB et al., Appellees.
    No. 7535.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 12, 1963.
    Rehearing Denied Dee. 17, 1963.
    Sam G. Croom, Croom, Barnes & Adams, Houston, for appellants.
    Carlyle W. Urban, Houston, for appel-lees.
   CHADICK, Chief Justice.

This is an action to enforce a restrictive covenant on the use of land by injunctive process. The trial court’s judgment granting a permanent injunction is affirmed.

George H. Ullrich, Jr., and wife, appellants here, defendants in the trial court, own Lot 10, Block 44, Southampton Place Addition to the City of Houston, Harris County, Texas. Their title deed recites that the grant to them is subject to all effective restrictions and covenants burdening the property at the date of the deed, November 15, 1957. The covenant under review in this appeal reads:

“No apartment house or duplex will be permitted in the addition, the object of this provision being to prohibit multiple housing throughout the entire addition.”

The quoted provision appears as a part of a trust agreement between E. F. Fleming and San Jacinto Trust Company, dated October 15, 1922, and recorded in the deed records of Harris County, and is in the Ullrich’s chain of title. This covenant in the trust instrument has been a subject of appellate court review and interpretation, in the following cases: Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, W/R; Rudy v. Southampton Civic Club, Tex.Civ.App., 271 S.W.2d 431, W/R., N.R.E.; Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516.

In essence, the appellants’ first four points of error, grouped for briefing, assert that the appellees, that is the Southampton Civic Club, an unincorporated association and seventeen persons as individuals and as officers and members of the association, and as representatives of a class, as plaintiffs in the trial court, failed as a matter of law to prove that the Ull-richs had violated the quoted covenant. The Ullrichs thereby found their case upon the construction of the covenant made by the Supreme Court in Southampton Civic Club v. Couch, supra, and the uncontradict-ed evidence produced at the trial showing the use that they, the Ullrichs, made of the dwelling house and garage located on their lot.

When the defendant George H. Ullrich, Jr., was under cross-examination during the trial, his attention being directed to the garage building on his premises, testified as shown by this extract from the statement of facts, to-wit:

“Q. What is on the second floor of that building?
“A. There is a bedroom and a bath and a living room and a kitchen.
“Q. And who is now living in these quarters on the second floor?
“A. A Rice student by the name of Ghias U. Din.
“Q. How long has he been occupying these quarters?
“A. Two years with about a seven months break to go to Oxford in England.
“Q. And he is paying rent to you and Mrs. Ullrich for the use of these quarters ?
“A. Yes, sir.
“Q. Is he occupying them on a month-to-month arrangement?
“A. Yes, sir.
“Q. He pays you a certain amount per month ?
“A. $50.00 a month.
“Q. He has been there for two years except a seven month period, how long has it been since he came back from England?
“A. He re-occupied the place in February of this year.
“Q. He is the only tenant you have there now?
“A. Yes, sir.
“Q. He is using the entire second floor?
“A. Yes, sir.
“Q. Which consists of a living room, bathroom and kitchen and a bedroom?
“A. Yes, sir.
“Q. Is he related to you or Mrs. Ull-rich in any way?
“A. No, sir.
“Q. He is not a member of your family ?
“A. No, sir.
“Q. He is not a member of Mrs. Ull-rich’s family?
“A. No, sir.”

Pictures were introduced together with other evidence showing the Ullrichs’ dwelling house and the garage were built upon separate foundations some twenty-two feet apart and connected by a concrete slab walk with a roof over it. The roof is supported by the house at one end and the garage at the other, and by posts in-between. This open-sided passageway, called a “breezeway”, connected door entrances into each of the otherwise separate structures. At the ground level the garage building is used to house automobiles, with servant quarters adjacent thereto. At trial time a part of the servant’s quarters was being used as a storeroom, and the remainder had been air conditioned and outfitted and was being used, according to Mr. Ullrich, as an office and study.

In the Couch case just referred to, the Supreme Court on remanding the case gave detailed instructions for the guidance of the inferior courts. These instructions, next quoted, constitute a construction of the covenant which is applicable in this case, to-wit:

“The nature and extent of the use of his premises for purposes other than as a residence for the members of his family and his domestic servants will determine whether an injunction decree is to be entered against a particular defendant. If the evidence establishes as a matter of law, or if the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that a * * * defendant * * * is using an establishment on his premises, separate and apart from his dwelling house, for renting as a source of financial gain, or is renting space to others in his dwelling house as a separate housekeeping unit, * * * that activity should be enjoined. On the other hand, if * * * the dwelling house on the premises * * * is being used primarily as a residence for the owner and his family and domestic servants, no injunction should issue against the incidental renting by the defendant of a room or rooms to others.”

The purpose of the only issue submitted to the jury was to settle the facts as to waiver, by the plaintiffs, of the provisions of the restrictive covenant. Neither the plaintiffs nor the defendants requested submission of special issues relative to any other fact issue made by the evidence nor objected to an omission in that respect. The implication of the judgment entered in the trial court is that the trial judge found as a matter of law that the evidence established that the Ullrichs were renting, for financial gain, space on their property for use, and used, as a housekeeping unit.

Mr. Ullrich himself testified that the four rooms in the garage apartment were being used, each for its separate purpose, by the tenant. Inferentially, the tenant cooked his meals in the kitchen, etc. Such use constituted the second floor rooms of the garage a housekeeping unit. It is said that when the proof as a whole leads to but one conclusion of fact, and reasonable minds would not differ thereon, the evidence establishes such conclusion as a matter of law. See 1 Texas Law of Evidence, Sec. 4, p. 9, and cases there cited. The evidence appears sufficient to support the implication that the trial judge found this fact as a matter of law. The record thus considered shows submission of the issue to the jury was not necessary in any event. See authorities cited next above.

In their brief the Ullrichs treat the evidence as establishing as a matter of law that the garage joined to the dwelling house by the breeze-way, and the use made of it as an office and study unified the garage building and the house into a single family dwelling or residential establishment. Even though such fact is established as a matter of law, which is not so held, the interpretation of the restrictive covenant’s meaning, set out in the Couch case, renders it immaterial whether the housekeeping unit is in the dwelling house or in an establishment separate and apart from it. The appellants’ first four points of error are overruled.

Appellants’ remaining points of error, requiring a review of the evidence pertaining to the waiver issue (Special Issue No. 1) and the action of the trial judge in overruling motions for instructed verdict and for judgment notwithstanding the verdict, have been studied with care. After full consideration, it must be held that the great weight and preponderance of the evidence is not contrary to the jury’s verdict on the waiver issue, nor is error shown in the other respects mentioned. The points are respectfully overruled.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Will WILSON, Attorney General of the State of Texas, et al., Appellants, v. Forrest M. SMITH et al., Appellees.
    No. 14148.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1963.
    Rehearing Denied Dec. 18, 1963.

      Stanley Mosk, Atty. Gen., San Francisco, Cal., Carl Boronkay, Los Angeles, Cal., Waggoner Carr, Atty. Gen., J. S. Brace-well, Ben Harrison, Asst. Attys. Gen., Austin, Tex., for appellants.
    Dodson, Duke & Branch, San Antonio, Tex., Stanley Mosk, Atty. Gen., San Francisco, Cal., Carl Boronkay, Otto J. Hetzel, Von Herzen & Laidig, Los Angeles, Cal., Stahl & Sohn, San Antonio, Tex., for ap-pellees.
   MURRAY, Chief Justice.

This suit was brought in the District Court of Bexar County, Texas, by Petitioners Forrest M. Smith, Ernest M. Groos and T. C. Frost, Trustees of the Morrison Trust created under the will of R. W. Morrison, deceased, for a declaratory judgment construing the will of R. W. Morrison and setting forth their duties under the will.

Dr. Ben B. Burrows of Los Angeles, California, a chiropractor holding a chiropractic license in California, Edmund G. Brown, then Attorney General of the State of California, Will Wilson, then Attorney General of the State of Texas, Fred M. Standley, then Attorney General of the State of New Mexico, and Baylor University, Waco, Texas, were named defendants. Baylor University disclaimed any interest in the 50% of the income from the Morrison Trust to be donated to the establishment and maintenance of Clinic-Hospitals in California and elsewhere. The Attorney General of the State of New Mexico did not answer but defaulted.

The Attorney General of Texas answered that the establishment and operation of a clinic-hospital in Texas as provided and for the purposes stated in the Morrison will is prohibited by and contrary to the law and policy of the State of Texas, therefore such provisions are invalid and, being invalid are void everywhere, and cannot be enforced as to the establishment and operation of such clinic-hospital in California/ New Mexico, or elsewhere.

The case was tried before the court without a jury, and the trial court entered judgment, making many findings of fact and giving many instructions as to the duties of the trustees of the Morrison Trust, and members of the clinic-hospital committee yet to be appointed. This appeal has been perfected by Hon. Waggoner Carr, now Attorney General of the State of Texas.

The trial court, among other things, decreed as follows:

“That the clinic-hospital committee, to be composed of chiropractors licensed in the State of California and trained in the same art and science as that practiced and advocated by Dr. Ben B. Burrows, the directing committee member, if doing research and study and applying the methods of nutrition, blood chemistry, physical therapy, radionics, electricity and other methods of non-medicinal healing in the treatment of human illness in a clinic-hospital established in the State of Texas, would be in violation of the laws and public policy of the State of Texas and in particular the Medical Practice Act, the Chiropractic Act and Hospital Licensing Act of the State of Texas, and it is the judgment of this court that the establishment, maintenance and operation of such a clinic-hospital in the State of Texas in the manner set forth in the testator’s will would be violative of the laws and public policy of the State of Texas and such clinic-hospital provisions of said testator’s will are invalid in the State of Texas.”

We agree with this provision of the trial court’s judgment as it is fully supported by the undisputed facts. The Morrison will-provided, among other things, that:

“5. Said Clinic-Hospitals shall be devoted exclusively to the scientific study, research and improvement of existing methods, and to the development of new methods of treating and of preventing human sickness, particularly with respect to the effects on human health of nutrition, blood chemistry, radionics and electricity, and to methods of non-medicinal healing, and to applying the knowledge so acquired in the treatment of human sickness.
“6. Should said committee fail or refuse to operate any Clinic-Hospital herein provided for in full accordance with the directions contained herein, or to properly account for all receipts coming into their hands and all disbursements therefrom, said trustees shall remove each member of said committee so failing or refusing and shall select and appoint their successors. Annual audits shall be made and delivered to the trustees by a C.P.A. selected by them of all Clinic-Hospital funds and accounts.
“7. Reasonable charges for service rendered by said Clinic-Hospital shall be made to all who may avail themselves thereof and who may be financially able to pay therefor, but no needy person shall ever be denied service solely by reason of inability to pay therefor, and all payments received for such services shall be paid to the committee operating the Clinic-Hospital and shall be used by them solely for the purposes thereof.”

It is quite clear that the establishment and maintenance of such clinic-hospital is not only contrary to the civil laws of Texas, but is also denounced as a crime by our criminal laws. Medical Practice Act, Art. 4495, etc., Vernon’s Ann.Civ. Stats.; Art. 739 Vernon’s Penal Code; Art. 742 V.P.C.; Texas Hospital Licensing Law, Art. 4437f, Sec. 16, Vernon’s Ann.Civ. Stats.; The Chiropractic Act, Art. 4512b, V.A.C.S. See also Wilson v. State Board of Naturopathic Examiners, Tex.Civ.App., 298 S.W.2d 946.

The trial court further found:

“That the validity of the clinic-hospital provisions of the trust insofar as it authorizes the acts to be performed by such clinic-hospital committee in the State of California is to be determined with reference to California law. and not Texas law. That the above acts to be performed by such clinic-hospital committee would not be in violation of the laws or the public policy of the State of California, and, therefore, the Board of Trustees are authorized to carry out the clinic-hospital provisions of the Morrison Trust in the State of California as expeditiously as said Trustees may reasonably in their judgment do so.”

We do not agree with this part of the judgment, and the trial court committed reversible error in so decreeing. The laws of Texas and not California should here be applied.

The trial court correctly decreed as follows:

“(a) That the domicile of the testator, R. W. Morrison, at the time of his death was in Bexar County, Texas; that the last will of R. W. Morrison was probated in Bexar County, Texas, and his estate was administered in Bexar County, Texas; that all of the assets of the Morrison Trust are situated and have their situs within the State of Texas, and all of the Trustees of the Morrison Trust are, and are to be, residents of the State of Texas.
“(b) That the Morrison Trust is to be continuously administered and treated as one trust, with the corpus and income handled together and treated as a single fund, and the entire net income therefrom each year, after payment of the annuities specified in said will, shall be credited on the books of the trust by the Trustees as follows: 50% to the clinic-hospitals account or fund; 25% to Baylor University, and 25% to the fund for perpetuation, preservation and maintenance of the physical properties of the trust as in said will provided; that income not distributed each year shall he invested and handled along with other funds of the trust as a single fund, as the Trustees, in the exercise of their discretion and judgment, deem in the best interest of the trust, and all income shall accrue to the benefit of the entire trust.
“(c) That it was the intention of the testator that the Trustees of the Morrison Trust at all times administer said trust within the State of Texas and not elsewhere; that the same is now being administered wholly within the State of Texas, and that the income from said trust be used for the purposes as stated and directed in said will; that the corpus of the Morrison Trust shall remain in Texas and be at all times administered by the Board of Trustees of the Morrison Trust within the State of Texas and not elsewhere, and the same will be at all times subj ect to the jurisdiction of the courts of the State of Texas.”

There can be no question as to where the situs of the Morrison Trust is; it is in Bexar County, Texas. R. W. Morrison resided in Texas at the time of his death, the property put into the trust was located in Texas, the trustees are to continuously reside in Texas, and are to manage the Morrison Trust in Texas. Under such circumstances, the trust must bNgoyfimed-hyJhe laws of Texas, and the validity of the various provisions of the will—must be^Tefefimned-by llie laws of~ Texas^ Sec. 377, American Law Institute, Restatement of the Law of Trusts; 42 Tex. Jur. 672, § 64; 44 Tex.Jur. 773, § 206; American Law Institute, Restatement of Conflict of Laws, § 487; Stumberg, Principles of Conflict of Laws, p. 397; Page on Wills, 3rd Ed., § 164.7, Trusts; Beale, The Conflict of Laws, § 243.1; Cavers, 44 Harvard Law Review 161; Stumberg, 34 Texas Law Review; Annotations, 89 A.L. R. 1023, 139 A.L.R. 1129, and cases cited therein. Toledo Society for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553, certiorari den., 347 U.S. 936, 98 L.Ed. 1086, 74 S.Ct. 631, 115 A.L.R. 802. Laval v. Staffel, 64 Tex. 370; Holman v. Hopkins, 27 Tex. 38; Munger v. Munger, Tex.Civ.App., 298 S.W. 470; Albuquerque Nat. Bank v. Citizens Nat. Bank in Abilene, 5 Cir., 212 F.2d 943; DeVaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827; Jenkins v. First Nat. Bank in Dallas, 107 F.2d 764, Fifth Circuit Court of Appeals,

The Morrison Trust is a charitable trust created under the laws of Texas, Art. 7425b-1 to Art. 7425b-47, Vernon’s Ann.Civ.Stats. Art. 7425b-3 provides, among other things: “A trust in relation to, or consisting of, real, personal or mixed property may be created or established for any use or purpose which is not illegal.”

Certainly the establishment and maintenance of the clinic-hospitals provided for in the will is against the public policy, the Civil Statutes and the Criminal Statutes of this State, and the fact that one of the, hospitals would be established, maintained and operated in California does not change the situation. When the Texas laws are applied, and they must be applied under the above authorities, the establishing and maintaining of such a clinic-hospital is a crime wherever it may be, and it is not converted into a charity simply because it is established beyond the territorial limits of the State of Texas. Certainly we will not have Texas land and personal property administered by Texas Trustees under Texas law, and the revenue sent to another State for a purpose which is criminal under our laws, although it is not condemned as criminal in the foreign jurisdiction. For this Court to hold otherwise would be to take an untenable and inconsistent position which no court should take.

We find it unnecessary to discuss other matters herein presented, as what we have said above effectively disposes of all questions herein presented.

The will, in paragraph XII, provides as follows:

“This trust shall never fail if for any reason it may not be operated for the exact purposes and in the exact manner herein specified, but, in either of the latter events, the trustees are authorized and directed to operate said Clinic-Hospital or Clinic-Hospitals for purposes as nearly to those specified as, in their judgment, may be done.”

For obvious reasons, we do not here attempt to state what may be done by the ■trustees of the Morrison Trust under the provisions of that paragraph.

The judgment of the trial court is reversed insofar as it undertakes to set out the duties of the Trustees of the Morrison Trust and the members of the Clinic-Hospital Committee, and the Trustees of .the Morrison Trust are instruoted that in administering the trust they are to disregard the provisions of the will as to establishing and maintaining the clinic-hospitals described in the will, for the exclusive purposes set forth therein.


author: BATEMAN, Justice.

text:
    OTIS ELEVATOR COMPANY et al., Appellants, v. Doris L. BOND, Appellee.
    No. 16242.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1963.
    Rehearing Denied Dec. 6,1963.

      Bailey & Williams; Strasburger, Price, Kelton, Miller & Martin and Hobert Price, Dallas, for appellants.
    Bonney & Wade and Minor Morgan, Dallas, for appellee.
   BATEMAN, Justice.

Appellee brought this suit for damages against Adolphus Tower Building, herein sometimes called "the Building”, and Otis Elevator Company, herein sometimes called “Otis”, alleging that while riding as a passenger in an automatic elevator in the Adolphus Tower Building, intending to descend to the lobby floor, the elevator descended very rapidly in what was described as a free fall causing her to be thrown to the floor of the elevator and injuring her foot and ankle. Appellee neither pled nor attempted to prove any specific act of negligence as against either defendant, relying wholly on the doctrine of res ipsa loquitur. The Building denied liability to appellee and sought judgment over against Otis by way of indemnity, alleging that Otis by written contract had obligated itself to maintain the elevators in a safe and proper condition, and that if there was any negligence involved it was solely that of Otis, which had manufactured and installed the elevator in question and thereafter exclusively maintained it.

The jury found that (1) after appellee entered the elevator, the elevator went into a free fall (2) throwing appellee to the floor and (3) injuring her; (4) that at the time and on the occasion in question the elevator in question was under the exclusive control of the Adolphus Tower Building, but (4-a) that the Building did not fail to use a high degree of care in the maintenance of the elevator mechanism; (5) that at the time and on the occasion in question the elevator in question was not under the exclusive control of Otis Elevator Company, hut (7) that Otis failed to properly inspect, and (10) also failed to properly maintain the elevator, each such omission being negligence and a proximate cause of appellee’s injuries; also (14) that the acts or omissions on the part of Otis were the sole proximate cause of appellee’s injuries. The jury acquitted appellee of any contributory negligence and found her damages to be $31,254.

On motion of appellee the court disregarded the jury finding (4-a) that Adolphus Tower Building did not fail to use a high degree of care, as well as the jury finding (5) that the elevator was not under the exclusive control of Otis Elevator Company, and rendered judgment non obstante vere-dicto for appellee against both defendants jointly and severally for $31,254, and also rendered judgment in favor of the Building over against Otis for the same amount. ($3,330.46 of plaintiff’s judgment was awarded to the intervenor, Traders & General Insurance Company, by way of subro-gation for monies paid out by it to and for the account of appellee under a workmen’s compensation policy). The Building and Otis Elevator Company have appealed.

On the trial the appellee established by her testimony and that of another passenger in the elevator that almost immediately after appellee entered the elevator on the ninth floor it descended very rapidly in what they describe as a “free fall” and when it reached the fifth or sixth floor level it stopped suddenly and began to “bounce” up and down violently; that she pulled the emergency switch and the elevator came to a standstill between floors; that appellee was thrown to the floor of the elevator, resulting in painful injury to her ankle.

The elevator in which appellee was riding was one of five previously sold and installed by Otis in the Adolphus Tower Building, an office building in the City of Dallas.

J. L. Bostick testified that he was employed by Adolphus Tower Building as “elevator starter” and on the occasion in question was sitting in the lobby and could tell from an instrument board in the lobby where each of the elevators was at any given time; that the No. 3 car in which appellee was riding left the lobby and went to the twenty-sixth floor, then it got a call to the twenty-fifth floor, where it stopped; then it stopped on the ninth floor and after that a signal came on the sixth floor, but the car didn’t stop on the sixth floor; there was a crashing sound, a noise which came from the No. 3 car between the fifth and sixth floors; and about the time he heard the crash sound the emergency signal came on, which is something like a burglar alarm, after which he went to a speaker which was connected to the car in question and over which he carried on a conversation with the other passenger, a Mrs. Johnson. In the meantime, word was sent to Otis Elevator Company, who sent a Mr. Anderson over and three or four minutes after his arrival appellee was released from the elevator car. However, it was 58 minutes from the time of the accident until appellee was out of the car. Bostick’s testimony showed further that he was instructed by his employer always to call Otis Elevator Company whenever anything went wrong with any of the elevators, that this was always done and that none of the employees of the building ever worked on the elevators when they needed repairs. Otis Elevator Company had its employees in the building every day, sometimes for two or three hours at a time, checking over, maintaining and cleaning the elevator equipment.

The Appeal of Adolphus Tower Building

The points of error asserted by this appellant may be summarized as follows: the court erred (1) in refusing to hold as a matter of law that appellant was entitled to judgment; (2) in refusing to render judgment for appellant in view of the jury finding exonerating it of any negligence; (3) in not holding as a matter of law that Otis had exclusive control of the elevator since it had by contract assumed 100% responsibility for the inspection, repair and maintenance of the elevator; (4) in refusing to hold that the jury finding that the Building had exclusive control of the elevator was so contrary to the preponderance of the evidence as to require it to be set aside; (5) in refusing to hold that the jury finding that the elevator was not under the exclusive control of Otis was contrary to the undisputed evidence; (6) in refusing to set aside the finding that the elevator was not under the exclusive control of Otis as being so contrary to the overwhelming preponderance of the evidence as to be clearly wrong; (7) in rendering judgment against the Building in view of the finding that the negligence of Otis was the sole proximate cause of appellee’s injuries; (8) in rendering judgment against the Building because as a matter of law appellee “failed to prove any cause of action against said defendants”; and (9) the verdict was excessive. As the first eight points are briefed together, we shall discuss them together.

The first point of error is too general to be of any help to us. Nevertheless, we shall consider it along with the second.

The second point, complaining' of the adverse judgment in view of the fact that the jury exonerated appellant of any negligence, completely ignores the fact that on motion the court disregarded this finding. Nowhere in the Building’s brief do we find any point of error which even mentions, much less challenges, the court’s said action, nor any statement to indicate dissatisfaction therewith. Neither is the action complained of in an assignment of error in the Building’s motion for new trial. Accordingly, and since counsel for neither appellant has directed our attention to any evidence, lack of evidence, reason or authority to demonstrate any error in this action of the court, we are compelled to overrule the first two points.

The third, fifth, sixth and seventh points, all being to. the effect that the judgment against the Building was erroneous and should have been only against Otis Elevator Company, we hold to be without merit and are overruled. The Building’s duty, which it owed to all who would reasonably be expected to use the elevators, to maintain the elevators in reasonably safe condition cannot be delegated to-an independent contractor so as to relieve the Building of responsibility. Restatement of the Law of Torts, Sec. 425, p. 1145; 15-B Tex.Jur. 711-712, “ELEVATORS”, Sec. 10; 21 Tex.Jur:2d 550, “ELEVATORS AND. ESCALATORS”, Sec. 9; Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, err. ref.

The fourth point, complaining of the jury finding that-the Building had exclusive control of the elevator, as being so contrary to the preponderance of the evidence as to require it to be set aside, is without merit and is overruled. There was ample testimony, to support this finding.

The Building’s eighth point of error, that the judgment against it was erroneous because appellee “failed to prove any cause of action against said defendants,” while in extremely general form, is probably designed to question the applicability of the res ipsa loquitur doctrine.

As stated, no evidence of negligence was offered, appellee relying altogether on the doctrine of res ipsa loquitur. As said by our Supreme Court in Honea v. Coca Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445, "Res ipsa lo-quitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer. Washington v. [Missouri,] M., K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764; Texas & P. Coal Co. v. Kowsikowski, 103 Tex. 173, 125 S.W. 3; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.”

The rule means that the facts of the occurrence warrant, but do not necessarily compel, the inference of negligence; that such facts make a case for the jury to decide, not that they require a certain verdict. Gandy v. Southwestern Bell Telephone Co., Tex.Civ.App., 341 S.W.2d 554, 555, 85 A.L.R.2d 833, and cases cited therein.

It is merely a rule of evidence, not a rule of liability. Its effect is not to shift the burden of proof, but only the burden of going forward with the evidence. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.

The jury having found on competent evidence that the elevator was under the Building’s exclusive control, it only remains for us to determine whether “the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would have occurred.” Appellee proved that the elevator fell in a very unusual manner and came to a very abrupt stop and “bounced” up and down several times before coming completely to rest, and that this was accompanied by unusual noise. Neither defendant offered any testimony to explain this unusual occurrence. It will be readily seen that these facts are almost identical with those in Mattox v. C. R. Anthony Co., Tex.Civ.App., 326 S.W.2d 740, err. ref. n. r. e., except that in that case the plaintiff was injured while riding an escalator in a department store, a distinction without a difference. We agree with the Beaumont Court of Civil Appeals which said in that case: “These facts create a prima facie case of negligence requiring appellee to show circumstances that would exonerate it from blame in that connection.” The eighth point is also overruled.

The Building’s ninth point complains that the verdict was excessive. In view of our reversal and remand of the case for another trial, we deem it unnecessary, if not improper, to express our opinion on this matter.

In spite of our inability to sustain any of the points of error presented in the brief filed on behalf of the Building, we must reverse the judgment against it because of fundamental error in the record before us. The court having in effect set aside the jury finding that the Building did not fail to exercise a high degree of care, the verdict contains no finding of negligence on the part of the Building. Such a finding is an essential element, and a verdict in a negligence case which omits a finding of negligence is incomplete and insufficient to form the basis of a judgment for the plaintiff. Rule 301, Vernon’s Texas Rules of Civil Procedure; Orkin Exterminating Co. v. Gulf Coast Rice Mills, Tex. Civ.App., 362 S.W.2d 159; Moore v. Moore, 67 Tex. 293, 3 S.W, 284; International-Great Northern R. Co. v. Casey (Tex.Com. App.) 46 S.W.2d 669. This clearly appears as fundamental error on the face of the transcript and without our having to examine the statement of facts. 3 Tex.Jur. 827, § 584; Hamm v. Hamm, Tex.Civ.App., 159 S.W.2d 183, no wr. hist.; Kent v. National Supply Co. of Texas, Tex.Civ.App., 36 S.W.2d 811, err. ref.

Enjoined as we are by Rule 434, Vernon’s Texas R.C.P., to render such judgment as the court below should have rendered, we must remand for another trial. Having decided to disregard the jury’s answer to the only issue submitted on negligence of the Building, the court below should have granted a new trial. He had no authority to substitute his own finding in that respect for that of the jury.

Accordingly, we reverse that part of the judgment which is in favor of appellee and against Adolphus Tower Building and remand it for another trial.

Appeal of Otis Elevator Company

Appealing from both the judgment in favor of appellee and the judgment over against it in favor of the Building, Otis presents forty-nine points of error.

The first four points assert that it was entitled to judgment in its favor because, the case having been pitched wholly on the res ipsa loquitur doctrine, and the jury having found that Otis was not in exclusive control of the elevator in ques.tion, which finding was supported by evidence, Otis was entitled to judgment that appellee take nothing as a matter of law. We feel that these four points are well taken and sustain them.

In its fifth point of error Otis asserts, without argument, that the court erred in disregarding the jury finding that the Building did not fail to exercise a high degree of care, there being competent and sufficient evidence to support this finding. However, Otis in its brief does not direct our attention to any such evidence, and it is not our duty to search through the voluminous statement of facts to find such evidence. The point is overruled. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Rule 418, Vernon’s Texas R.C.P.

In its sixth, seventh and twenty-third points, Otis asserts that its motion for instructed verdict should have been sustained because there was neither pleading nor proof to establish even prima, facie that Otis had failed to exercise ordinary care or that it had failed to inspect or maintain the elevator in question. So far as pleadings are concerned, the plaintiff pled negligence generally and relied wholly on the res ipsa doctrine. If that doctrine was applicable, it was not necessary for plaintiff to plead or prove specific acts of negligence. Therefore these points are overruled.

In its eighth, ninth, tenth and eleventh points, Otis says that the trial court erred in applying the res ipsa doctrine, first, because of the lack of competent evidence to support the conclusion that but for negligence on the part of Otis the accident would not have occurred, and, second, because of the lack of competent evidence that the elevator was under the exclusive control of Otis. Without detailing the evidence on the point, we hold that there was no error in this respect and that the court properly submitted the issue as to whether Otis had exclusive control over the elevator at the time in question. These four points are overruled.

In answer to Special Issues 7, 8 and 9, the jury found that Otis failed to properly inspect the elevator in question, which was negligence and a proximate cause of the plaintiff’s injuries. In answer to Special Issues Nos. 10, 11 and 12, the jury found that Otis failed to properly maintain the elevator in question, which was negligence and a proximate cause. In answer to Special Issue No. 14 the jury found that the acts or omissions on the part of Otis were the sole proximate cause of the plaintiff’s injuries. In all of the remaining points of error presented by Otis (with the exception of the 45th, 46th, 47th, 48th and 49th), Otis complains of the submission of these seven special issues, and of the rendition of judgment against it based upon the jury’s findings in response thereto, because of no evidence, no competent evidence and insufficient evidence to support the same, and because there were no pleadings by either the plaintiff or the Building to support such issues. We consider all of these points to be well taken and they are sustained. Neither appellee nor the Building pled any specific act of negligence on the part of Otis, and no evidence was offered to prove any such specific acts of negligence.

By its forty-fifth point of error, Otis says it was erfor for the court to render judgment that the Building have indemnity over against Otis because there is no provision in the contract between them which would authorize such indemnity. The contract obligates Otis to maintain the elevators in reasonably good condition, and if it could be shown on a full development of the facts that Otis breached this contract, it could be held liable by way of indemnity to the Building. This point is overruled.

In its forty-sixth and forty-seventh points of error, Otis says it was error for the court to overrule its motion for new trial and its motion for instructed verdict and in rendering judgment in favor of ap-pellee against it because it appears as a matter of law that Otis owed no duty to the plaintiff which would give rise to the cause of action so asserted by her. For the reasons hereinbefore stated, these points are also overruled.

By its forty-eighth point Otis says that it was error to render judgment against the Building and in favor of the Building against Otis because of the lack of evidence to establish ownership of the premises or elevator or the management of the premises or elevator. Without detailing the evidence, we find that this point is without merit and it is overruled.

Its forty-ninth and last point of error is that the award of $31,254 to appellee was excessive. As stated in connection with our opinion on the appeal herein of the Adolphus Tower Building, since the case is being remanded for another trial, we shall not discuss or pass upon this point.

It will be seen from the above that Otis is unquestionably entitled to have the judgment against it in favor of the appellee and Adolphus Tower Building reversed. Feeling, however, under all the facts and circumstances of this case, and the manner in which it was presented in the trial court and in this court, that justice would be better served if the entire case were remanded and the parties given an opportunity to develop the facts of the case more fully, we do so. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619.

Reversed and remanded.