author: GREEN, Chief Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. Stella Marie DILLINGHAM et vir, Appellees.
    No. 305.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 22, 1967.
    Rehearing Denied July 13, 1967.
    W. N. Woolsey, of Lewright, Dyer & Redford, Corpus Christi, for appellant.
    Dean Patton, of Morrill & Patton, Bee-ville, for appellees.
   OPINION

GREEN, Chief Justice.

A venue case involving Subdivision 9a, Art. 1995, Vernon’s Ann.Tex.Civ.St. The plea of privilege of defendant H. E. Butt Grocery Company, a corporation, to be sued. in Nueces County, the county of its domicile, was overruled, and it appeals.

Plaintiff Mrs. Stella Marie Dillingham joined by her husband brought this suit in the district court of Bee County to recover damages allegedly resulting when she stepped in a puddle of some kind of liquid in defendant’s store in Beeville, Bee County, and fell to the floor. Mrs. Dillingham was the only witness giving evidence at the venue hearing. She testified that about 4:00 P.M. Saturday, October 3, 1964, she went into defendant’s store in Beeville to purchase her weekly list of groceries. After she had completed selecting the articles she wished to buy and had them put in the cart furnished for that purpose, she wheeled the cart to one of the checker stands to have her purchases checked out. While in line there, she remembered that she had borrowed a pencil from an employee at the office in the store, and leaving her basket of groceries at the checker’s counter, she went to the office to give back the pencil. In returning to pay for and get her groceries, she found that she could not get to her basket through the aisle as she had entered it due to there being a number of customers with grocery carts behind hers crowding that aisle. There were several other checker stations in the store, and the one next to that which. she had entered was not then in use and no employee was in attendance. Generally, a chain or barrier was placed across checker aisles not in use, which would prevent persons from going through such aisles. On this occasion there was no such chain or barrier across the unattended aisle and Mrs. Dillingham decided to use that approach to get back to the front of her checker 'station so that she could pay for and obtain her groceries. As she entered the aisle not in use, she stepped in a puddle of colorless liquid, described by her as water or soda pop, slipped and fell, and suffered the injuries complained of. She had not seen the puddle before stepping into it and did not know it was there. She did not know how long the liquid had been on the floor, or how it had gotten there. The manager of the store told her, a few days after the accident, that there was probably ten gallons of stuff spilled in the store every Saturday.

No attempt was made by plaintiff to prove that (1) defendant put the liquid on the floor, or (2)- that the defendant knew the liquid was on the floor and willfully or negligently failed to remove it, or (3) that the liquid had been on the floor for such a period of time that it would have been discovered and removed by the defendant had the defendant exercised ordinary care.

In Sherwood v. Medical & Surgical Group, Inc., Tex.Civ.App., 334 S.W.2d 520, writ ref., the district court in the trial on the merits of a “slip and fall” case had instructed a verdict for the defendant. The appellate court, in affirming the judgment, said:

“Appellant concedes there is no direct evidence as to who put the slippery substance on the floor, or how long it had been there. There is no evidence defendant caused the floor to be waxed or polished, or that it had used any substance on the floor. There was no evidence of actual or constructive knowledge of the presence of a foreign substance. We think the court’s determination should be sustained. Rogers v. Collier, Tex.Civ.App., 223 S.W.2d 560, 563, writ ref.; Del Camino Courts, Inc. v. Curtice, Tex.Civ.App., 323 S.W.2d 355, no writ hist.; Dill v. Holt’s Sporting Goods Store, Tex.Civ.App., 323 S.W.2d 644, no rehearing; Henderson v. Pipkin Gro. Co., Tex.Civ.App., 268 S.W.2d 703, writ dis.; Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232,235, no writ hist.”

As noted above, the Supreme Court un-qualifiedly refused a writ of error.

This court had occasion to write on this subject in H. E. Butt Grocery Company v. Kirkwood, 384 S.W.2d 790, n.w.h. In reversing the order of the trial court overruling defendant’s plea of privilege in a “slip and fall” case, Justice Sharpe, speaking for the court, said:

“There was no evidence that appellant or its employees put the water on the floor or that they knew the water was on the floor. Therefore, the only question about which there might be any controversy is whether the water had been upon the floor for such period of time that appellant, or its employees, acting as reasonably prudent persons in the exercise of ordinary care, should have discovered it. As to this issue there is no direct evidence and the circumstantial evidence to establish it in the plaintiff’s favor is lacking.
******
“Plaintiff has not met the burden of proving a cause of action for venue purposes in this case. In addition to the cases heretofore cited, as authority for such holding see the following: Safeway Stores of Texas v. Miller, 110 S.W. 2d 927 (Tex.Civ.App. 1937, error dism.) ; F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830 (Tex.Civ.App. 1941, ref. w. o. m.); Rogers v. Collier, 223 S.W.2d 560 (Tex.Civ.App. error ref.); Spring-all v. Fredericksburg Hospital and Clinic, 225 S.W.2d 232 (Tex.Civ.App. 1949, n. w. h.); Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App. 1952, n. w. h.) ; Beard v. Henke & Pilot, Inc., 314 S.W. 2d 844 (Tex.Civ.App. 1958, n. w. h.) ; Dill v. Holt’s Sporting Goods Store, 323 S.W. 2d 644 (Tex.Civ.App. 1959, n. w. h.); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ.App. 1962, ref. n. r. e.). ”

See also DuBose v. Parkdale Plaza Company, Corpus Christi Court, Civ.App., 408 S.W.2d 324, wr. ref. n. r. e., and cases cited.

Plaintiff-appellees argue that this is more than the usual “slip and fall” case, in that they alleged and raised fact issues of negligence and proximate cause other than those involving the presence of the liquid on the floor. We copy from plaintiffs’ petition the grounds of negligence asserted:

“(a) In failing to remove the slippery substance from the floor.
(b) In failing to close the check-out aisle where such slippery substance existed on the floor.
(c) In failing to give warning to the Plaintiff, Stella Marie Dillingham, of the existence of such slippery substance on the floor.
(d) In failing to post a warning of the slippery and dangerous condition.
(e) In failing to place any cover over the area where the slippery substance existed.
(f) In failing to provide skid-resistant type flooring or floor covering in the check-out aisle.
(g) In failing to provide hand rails or other supports, to prevent persons from falling in such area, or to enable persons to break the force of such a fall.
(h) In failing to post warnings of possible dangerous conditions, in the check-out aisle areas.
(i) In failing to maintain the floor against slippery conditions, or so as to prevent such dangerous conditions.
(j) In failing to take steps to remedy the slippery condition of the floor.”

The only evidence raising any fact issue that the lane in which plaintiff fell was fraught with danger was the testimony of the presence of the liquid on the floor. As stated above, and as held in Sherwood, supra, Kirkwood, supra, DuBose, supra, and the authorities therein cited no liability due to such presence would attach to defendant without some evidence (1) that defendant put the liquid on the floor, or (2) that defendant knew the foreign substance was on the floor and willfully or negligently failed to remove it, or (3) that the liquid had been on the floor for such a period of time that it would have been discovered and removed by defendant had it exercised ordinary care. There was no such evidence. There was no evidence that any act of the defendant or failure of defendant to act, other than the mere presence of the liquid on the floor, was a proximate cause of plaintiff’s fall. There was no evidence that the floor was unduly slippery in the absence of water, or that the defendant was negligent in failing to provide handrails at the counter, or that the absence of such handrails constituted a proximate cause of her fall. In the absence of such evidence, there was no fact issue of an act or omission of negligence of defendant or its agents, servants or representatives within the scope of their employment occurring in Bee County which proximately caused plaintiff’s injuries. Subdivision 9a, Art. 1995, V.A.T.S. Under the principles of law stated above, and repeatedly announced by the authorities herein cited and many others, there was no evidence to support any implied finding that defendant breached any duty owing by it to Mrs. Dillingham. Halepeska v. Calli-han Interests, Inc., Tex.Sup.Ct., 371 S.W. 2d 368; H. E. Butt Grocery Company v. Russell, Tex.Civ.App., 391 S.W.2d 571, writ ref. n. r. e.

Plaintiffs in the trial court relied also on Subdivisions 4 and 23, Art. 1995; however, on appeal they as appellees have expressly abandoned such as grounds for retaining venue in Bee County. In our study of the record, we have found no evidence of venue there under either of these two subdivisions.

The trial court erred in overruling defendant’s plea of privilege.

The judgment of the trial court is reversed, the plea of privilege of defendant H. E. Butt Grocery Company is sustained, and the case as to such defendant is ordered transferred to one of the district courts of Nueces County, Texas.

Reversed and rendered.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Nathan Dale FERGUSON, Appellee.
    No. 16847.
    Court of Civil Appeals of Texas. Fort Worth.
    June 30, 1967.
    Rehearing Denied July 21, 1967.

      Garrett & Garrett and Rufus S. Garrett, Jr., Fort Worth, for appellant.
    Spurlock & Schattman and Walter E. Steimel, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

This is a Workmen’s Compensation case tried to a jury, which returned a verdict for total and permanent disability. Judgment was entered in accordance with such verdict.

The appeal is predicated upon six points of error. The appellant contends there was no evidence or insufficient evidence in support of the jury’s finding of permanent disability; the court erred in permitting into evidence hearsay statements of appellee’s doctor and portions of answers to questions in depositions which did not reflect the true answer of the witness; in refusing to permit into evidence the record of a prior Workmen’s Compensation case; and in permitting appellee’s attorney to read to the jury portions of the pleadings alleging the maximum benefit recoverable.

We have carefully reviewed the entire record in this case and are of the opinion that there is substantial evidence in support of the jury’s findings and that same are not against the great weight and preponderance of the evidence.

Appellee was injured on June 21, 1965, at his employer’s place of business while lifting a box of plated parts weighing about 140 to 150 pounds.

The accident was witnessed by an officer of the Company, who suggested the appellee seek medical treatment for his complaint of low back pain. On the date of the injury appellee was admitted to All Saints Episcopal Hospital because of the severe pain in his low back. The admitting diagnosis was “broken back”. The discharge diagnosis was “spondylolisthesis L-5”. Appellee remained in All Saints Episcopal Hospital fourteen days. He was given medication (pills and shots), traction and was fitted with a back brace.

Appellee returned to light work at his employer’s place of business. He “did the girl’s job” for a short period of time. This resulted in a second hospitalization at Harris Hospital for eleven days. He was discharged therefrom with the recommendation that he be “sent home on physical therapy regime as an outpatient.”

After the second hospitalization, the appellee was unable to work. He was given continuous therapy in Dr. McDonald’s office at the Fort Worth Bone & Joint Clinic to within one month of trial. He was under Dr. McDonald’s care at the time of trial.

He testified that he could not do any manual labor; he was totally disabled; such disability was permanent so far as he knew; and he is in constant pain and even going to the bathroom makes the pain worse. Three other witnesses testified as to the appellee’s constant wearing of a back brace, sleeping on the floor and total inactivity since the injury. The ap-pellee had never had any prior back trouble. He had an excellent work record.

The appellant argues that since no medical testimony was offered by either party, the only evidence bearing on permanency of injury is the testimony of the appellee and three other witnesses, including his employer, and that none of such evidence or testimony either directly or by inference bears upon the permanency of the injury. There are decisions to the effect that a jury verdict of permanent disability can be upheld upon the testimony of appellee or lay witnesses. Under such decisions the jury may draw the inference of permanent disability from such testimony, even though such may be contrary to expert medical testimony presented by the appellant. In the case at bar there was no expert testimony. There was no testimony offered to the effect that such injury was not permanent.

Many cases hold that in some situations it is not necessary to present physicians as witnesses in order to prove the extent of an injury. Coca Cola Bottling Co. of Fort Worth v. McAlister, 256 S.W.2d 654 (Tex.Civ.App., 1953, no writ hist.) ; American General Ins. Co. v. Smith, 163 S.W.2d 849 (Tex.Civ.App., 1942, ref.); Texas General Indemnity Company v. Deaton, 380 S.W.2d 719 (Tex.Civ.App., 1964, ref., n. r. e.); Texas Employers’ Insurance Ass’n v. Scott, 46 S.W.2d 348 (Tex.Civ.App., 1932, ref.); Texas Employers Insurance Association v. Hoover, 382 S.W.2d 174 (Tex.Civ.App., 1964, ref., n. r. e.); Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App., 1963, ref., n. r. e.); Insurance Company of Texas v. Anderson, 272 S.W.2d 772 (Tex.Civ. App., 1954, ref., n. r. e.); Connecticut Indemnity Company v. Henson, 388 S.W. 2d 300 (Tex.Civ.App., 1965, no writ hist.) ; Fireman’s Fund Insurance Company v. Martinez, 387 S.W.2d 443 (Tex.Civ.App., 1965, ref., n. r. e.); 63 Tex.Jur.2d 457, § 429. The record shows this to be such situation.

We disagree with appellant’s contention relating to the admission of hearsay statements of appellee’s doctor and portions of answers to questions in deposition which did not reflect the true answers of the witness. In substance the appellee testified he did as his doctor directed, thus showing compliance with the instructions of his doctor. Even though some of the questions evoked hearsay statements, no prejudice is shown to have resulted therefrom.

The appellant’s attorney was privileged to read any portion of the deposition he desired subject to proper objection. He made no attempt to do so. The error, if any, complained of was harmless.

It was not error to refuse appellant permission to introduce evidence of a pri- or workmen’s compensation claim in which appellee had claimed total and permanent disability.

“The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.” Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup., 1963); 63 Tex.Jur.2d 450, § 425, and authorities cited. See § 426, p. 451, same text.

The prior claim related to hernia and had no relation to the current back injury, nor was the petition in the prior case, under this record, admissible under the exceptions noted in Hartford Accident and Indemnity Co. v. McCardell, supra. See also McClintock v. Travelers Insurance Co., 393 S.W.2d 421 (Tex.Civ.App., 1965, ref., n. r. e.); Aetna Casualty & Surety Co. v. Depoister, 393 S.W.2d 822 (Tex. Civ.App., 1965, ref., n. r. e.).

In any event, the refusal of the court to allow appellant to read into evidence the prior hernia petition, in view of the whole record, was not such an error as was calculated to cause and probably did cause an improper verdict and judgment. Rule 434, Texas Rules of Civil Procedure.

In its sixth point appellant contends it was reversible error for appellee to read to the jury that portion of his pleading regarding maximum compensation under the Workmen’s Compensation Law.

It is the better practice not to read to the jury those portions of the pleadings with which the jury is not concerned. Texas Employers Ins. Ass’n v. Poe, 152 Tex. 18, 253 S.W.2d 645 (1952); 63 Tex. Jur.2d 639, § 511.

Reading such portion or portions, however, does not, in the absence of a showing of prejudice to the appellant, constitute reversible error. Argonaut Insurance Co. v. Titus, 347 S.W.2d 372 (Tex.Civ. App., 1961, no writ hist.); Texas Employers’ Insurance Ass’n v. Logsdon, 278 S.W.2d 893 (Tex.Civ.App., 1954, ref., n. r. e.); Traders & General Insurance Co. v. Smith, 311 S.W.2d 91 (Tex.Civ. App., 1958, ref., n. r. e.); Texas Employers’ Insurance Ass’n v. Rubush, 337 S.W.2d 501 (Tex.Civ.App., 1960, ref., n. r. e.) ; Texas Employers’ Insurance Ass’n v. Rigsby, 273 S.W.2d 681 (Tex.Civ.App., 1954, no writ hist.).

We fail to find wherein the reading of the above mentioned pleadings resulted in such prejudice as to warrant a reversal.

All points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: CADENA, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. C. J. HESSE, Appellee.
    No. 14553.
    Court of Civil Appeals of Texas. San Antonio.
    June 14, 1967.
    Rehearing Denied July 19, 1967.

      Boyle, Wheeler, Gresham, Davis & Gregory, Bond Davis, San Antonio, for appellant.
    Jim Brannon, D. L. McClure, Houston, Davis, O’Connor & Pullen, San Antonio, for appellee.
   CADENA, Justice.

This is an action by plaintiff, C. J. Hesse, under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., to recover for personal injuries sustained by him during the course of his employment with defendant, Missouri Pacific Railroad Company. The trial court, in conformity with the verdict of the jury, entered judgment awarding plaintiff $71,170.00 for past and future pain and suffering, loss of earnings from the date of injury to the time of trial, and impairment of future earning capacity, plus $4,870.00 for past and future medical expenses.

Defendant filed a motion for new trial on the ground of newly discovered evidence, and here asserts that the trial court abused its discretion in overruling such motion. The newly discovered evidence consists of the fact that, after the trial, plaintiff returned to work for defendant and actually worked, and was paid for, a total of thirty-seven hours.

Plaintiff’s petition in this case alleged that, as a result of his injury, his future earning capacity had been totally destroyed, and prayed for recovery of $225,000.00. The medical testimony pertaining to the disabling effect of plaintiff’s injuries was in sharp conflict. However, such evidence established that plaintiff was injured on October 5, 1962, sustaining fractures of the left leg and in the pelvic area. He was hospitalized for sixteen days, and walked with the aid of crutches until the middle of December, 1962. He continued to experience pain in the left leg and in the spine and was examined by several doctors. In August, 1963, he underwent spinal surgery in Houston. The surgeon testified he found that a disk in plaintiff’s back was protruding to the rear, pinching a nerve root between the disk in front and a bone in back. The surgeon performed what he described as a bone “fusing” or “welding” operation, designed to prevent movement in the affected area. Post-operative examinations revealed that the “welding job” had not “taken,” and that there was still movement in the affected area, resulting in continued irritation of the nerve root. In April, 1964, a second operation was performed. The surgeon testified that the second operation was a complete success and that, at the time of trial in May, 1966, plaintiff was physically able to perform his normal duties as a machinist or electrician with defendant railroad.

During the trial plaintiff testified that he still suffered pain in the back and left leg, and that he was unable to perform the ordinary duties of a workman. He produced medical testimony to the effect that he was still suffering from an “involvement” of the fifth lumbar nerve root on the left side. This involvement was described as a pressure on the nerve root as it emerged from the spine, causing an irritation of such nerve root, with consequent pain. Plaintiff’s medical expert testified that, as long as this condition continued, plaintiff would be unable to perform any labor involving climbing, stooping or bending.

The evidence at the trial disclosed that plaintiff was able to drive an automobile and had, in fact, driven from Houston to San Antonio, and back to Houston, on several occasions.

The following facts concerning the post-trial events on which defendant based its demand for a new trial are undisputed: The case was tried by a Bexar County District Court in San Antonio. The verdict of the jury was received by the trial court at about 2:30 p. m., on Tuesday, May 10, 1966. Late that night the plaintiff drove to Houston, the city of his residence, arriving there “way in the morning” of Wednesday, May 11, 1966, and at about 9:30 a. m. on that day he discovered in his mailbox a letter from defendant, dated May 9, 1966, advising him of the existence of an opening for a permanent position of machinist at the defendant’s Diesel shop in Houston and requesting that he report to work. The letter stated that if plaintiff did not report for work within fifteen days his name would be removed from the “Seniority Roster.” Plaintiff reported at defendant’s Houston yards the same day and was told to return the following day to secure a form so that he might undergo a physical examination. He returned to the yards on Thursday, May 12, 1966, was given the necessary form, and, as instructed by defendant, presented himself to Dr. William A. Palm for a physical examination. Dr. Palm certified that plaintiff was physically able to perform the duties of a machinist, and plaintiff reported for work at 7:00 a. m. on Friday, May 13, 1966. He was on the job for eight hours on each of three successive days, Friday, May 13, Saturday, May 14, and Sunday, May 15. He did not report to work on May 16, May 17, or May 18. On Wednesday, May 19, he worked eight hours. On Thursday, May 20, he reported to work at 7:00 a. m. and worked until noon, at which time he left the job, and since which time he has not worked for defendant or anyone else.

At the hearing on defendant’s motion for new trial, defendant introduced motion pictures taken of plaintiff after he had returned to work. The record discloses that it took about three minutes and twelve seconds to exhibit the two reels of film, with the first of the two reels being shown at slower than normal speed.

Although reversals have followed in many cases where a motion for new trial based on newly discovered evidence has been denied by the trial court, such motions are addressed “very much to the discretion of the trial court, and that an order overruling such a motion will not be reversed unless it appears that the court below had not exercised its discretion according to the established rules of law.” Forshagen v. Payne, 225 S.W.2d 229, 231 (Tex.Civ. App., 1949, no writ).

After reviewing the entire record in this case, we conclude that the evidence relating to post-trial events in this case “was not ‘dissimilar to that used upon the trial ‘and was’ additional evidence of the same kind to the same point’ as that introduced at the trial.” New Amsterdam Casualty Co. v. Jordan, 359 S.W.2d 864, 867 (Tex.Sup., 1962). The newly discovered evidence does no more than establish that, within three days after the trial, plaintiff, in answer to a summons from defendant, reported for work. During the trial of the case plaintiff testified that during the spring of 1965, about one year prior to the trial, the same Dr. Palm who declared him able to work on May 12, 1966, certified that he was physically able to perform the duties of a machinist or electrician. Plaintiff then drove to San Antonio, since there was no opening for either of those job classifications in Houston, and applied for work at defendant’s San Antonio yards. He remained in San Antonio for several days seeking employment and, finding that there were no openings in that city, he returned to Houston. Upon his arrival in Houston, he reported to defendant’s yards, gave them his name and address, and stated that he was ready to return to work.

We believe that this case comes within the rule applied by the Supreme Court of Missouri in Curry v. Thompson, 247 S.W. 2d 792, 31 A.L.R.2d 1225 (1952). There, plaintiff, who had been injured while in the course of his employment with the Missouri Pacific Railroad Company, produced evidence tending to show that he was physically unable to work or to do any kind of manual physical labor, and that he was permanently disabled for performing the duties of a railroad switchman. About four months after the trial, plaintiff applied to go back to work for the railroad as a switchman. He underwent a physical examination and returned to work, working a total of 42 days during a 56-day period. The Missouri Supreme Court held that evidence of such post-trial facts was not of such a naturje as to entitle defendant to a new trial. The following language of the Missouri Court was quoted with approval by our Supreme Court in New Amsterdam Casualty Co. v. Jordan, supra, 359 S.W.2d at 867:

“ * * * In the instant case the questions made an issue by the evidence (and now pertinent) are as to the extent and severity of plaintiff’s injuries, i. e., whether such injuries are so permanent as to prevent plaintiff ever returning to his former railroad switching employment. Those issues were here litigated and there was expert opinion evidence upon every side of those issues. * * * But in our case here the permanency of plaintiff’s injuries, their extent and severity, and whether he could ever return to his former railroad switching employment were all issues of the evidence,”

Although plaintiff worked for 37 hours after the trial, the motion pictures introduced by defendant at the hearing on its motion depicted plaintiff’s activities during periods totalling less than four minutes of the 37 hours he worked. As the trial court pointed out, the motion pictures showed plaintiff holding his back and walking like a “spavined” horse. Plaintiff testified that, after working three days, he was unable to report to work on the fourth day because of the pain he was experiencing. He also testified that he finally quit working at noon on Thursday, May 20, 1966, because of the pain in his back. Under these circumstances, the evidence relied on by defendant cannot be said to be of such probative force as to justify the conclusion that defendant has not had its day in court.

Defendant relies strongly on the holding by our Supreme Court in Missouri-Kansas-Texas R. Co. v. Evans, 151 Tex. 340, 250 S.W.2d 385 (1952). There plaintiff alleged and testified that he suffered an eye injury when particles of rust and dirt from a defective coupling device blew into his eye. After trial, his eye was removed by surgery, and it was then discovered that the eye was cancerous. The Supreme Court held that the trial court erred in not granting a new trial so that such evidence could be considered by a jury. However, the Evans case is easily distinguishable from the case before us. In Evans, as the Supreme Court pointed out, there was no evidence during the trial pointing to cancer as a possible cause of plaintiff’s disability. 250 S.W.2d at 393. Such is not the case here. We do not have before us evidence concerning an alternative cause of plaintiff’s incapacity, but merely further evidence of the fact, which had been developed during the trial, that plaintiff was willing to report for work when requested to do so by defendant.

Courts should be reluctant to order a new trial, and thus permit the relitigation of once litigated issues, unless the post-trial facts are of such decisive and conclusive character, as in Evans, as to render a different result reasonably probable. While it is true that the fact that plaintiff actually returned to work for a period of thirty-seven hours after the trial is a new fact which could not have been developed at the trial, it did not “bring to light a new and independent truth,” and it cannot be said that the probative force of the new evidence partakes of that “conclusiveness and decisiveness upon the merits of the case to the extent of showing that justice has not been attained” or that “the requirements for overriding the public policy requiring finality of trials have been met.” New Amsterdam Casualty Co. v. Jordan, supra, 359 S.W.2d at 867-868. Nor does the new evidence show a fraudulent purpose on plaintiff’s part. Cf. Papa-thanasi v. Reiter, 270 App.Div. 308, 60 N.Y.S.2d 33, 35 (1945).

The judgment of the trial court is affirmed.

      I. We disregard the testimony of Dr. Palm, given at the hearing on the motion for new trial, relating to his examination of plaintiff on May 12, 1966, and the conclusions he drew from such examination. The evidence at the trial showed that Dr. Palm had examined plaintiff prior to the trial and had concluded that plaintiff was able to work. Dr. Palm’s opinion relating to plaintiff’s condition was known to defendant and cannot be considered newly discovered evidence.


author: McDONALD, Chief Justice.

text:
    Harry P. JARVIS, Appellant, v. John H. JENKINS, Appellee.
    No. 4606.
    Court of Civil Appeals of Texas. Waco.
    June 15, 1967.
    Rehearing Denied July 6, 1967.

      Harry P. Jarvis, Houston, for appellant.
    Joe B. Fleming, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Jarvis from a judgment against him for necessaries furnished his wife.

Plaintiff Jenkins sued defendant Jarvis, alleging he furnished defendant’s wife $325.38 for necessaries. Defendant answered by general denial. Trial was before the court without a jury which, after hearing, rendered judgment for plaintiff for $225.38.

Defendant appeals, contending:

1) The trial court erred in granting plaintiff judgment because there was a material variance between the pleadings and proof.
2) There was no proof the ticket purchased for defendant’s wife was a necessity.

The evidence showed defendant and his wife were separated and that a divorce suit was pending between them. Plaintiff was an attorney for defendant’s wife. Plaintiff gave defendant’s wife a check for $50. which check was cashed at Weingarten’s Grocery. Such cancelled check is in evidence, and there is evidence that it was given for defendant’s wife to buy food and groceries with. It is in evidence that plaintiff bought an airline ticket for $175.38 for defendant’s wife to go to Virginia and visit her mother and get medical care.

Defendant contends that because plaintiff alleged he “advanced $175.38 in money for the airline ticket,” and the proof showed he purchased the ticket with a credit card, and later paid the ticket out in 3 monthly payments, that the “allegata and probata” do not conform, and that a material variance in pleading and proof exists, which precludes judgment for plaintiff. The proof showed plaintiff paid for the airline ticket for defendant’s wife in the amount of $175.38, and we think that sufficient.

Defendant further contends there was no proof the ticket purchased for his wife was a necessity. The evidence is that defendant’s wife was separated from him; that she was ill; that she went to Virginia to visit her mother and go to a hospital and get medical attention. We think from the record the trial judge had a right to conclude the $175.38 airline ticket was a necessity.

Defendant’s points and contentions are overruled.

Affirmed.


author: WALKER, Justice.

text:
    Alvin M. STONE, Petitioner, v. TEXAS LIQUOR CONTROL BOARD et al., Respondents.
    No. A-11793.
    Supreme Court of Texas.
    June 21, 1967.
    McLaughlin, Clark, Fisher, Gorin & McDonald, Charles M. McDonald, Waco, for petitioner.
    Crawford C. Martin, Atty. Gen., Douglas H. Chilton, Asst. Atty. Gen., Austin, Bryan, Wilson, Olson & Stem, Wiley W. Stem, Jr., Tom P. Moore, Jr., Waco, for respondents.
   WALKER, Justice.

Petitioner, a private citizen, contested the application of Joe Bozarth for a Retail Dealer’s Off-Premise License to sell beer. The county judge approved the application, and the license was subsequently issued by the Texas Liquor Control Board. Petitioner attempted to appeal to the district court, which dismissed the cause on the ground that he has no right of appeal. The Court of Civil Appeals affirmed. 407 S.W. 2d 830. We affirm the judgment of the Court of Civil Appeals.

The procedure for obtaining a beer license is set out in Article 667-6, Vernon’s Ann.P.C. In considering and acting on the application, the county judge and the Board perform administrative functions. State v. Bush, 151 Tex. 606, 253 S.W.2d 269. It is well settled that there is no right of appeal from an administrative order unless the statute provides for the same or unless the order violates a constitutional right or adversely affects a vested property right. Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747; City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788; Richardson v. Alsup, Tex.Civ.App., 380 S.W.2d 923 (wr. ref); Mason v. City of San Antonio, Tex.Civ.App., 324 S.W.2d 90 (no writ). In previous cases the Courts of Civil Appeals have applied this general rule and held or said that a contestant may not appeal when the application is approved by the county judge. State v. Lemaster, Tex. Civ.App., 275 S.W.2d 164 (no writ) ; Texas Liquor Control Board v. Abogado, Tex.Civ. App., 172 S.W.2d 778 (no writ).

Article 667-6 authorizes “any citizen” to contest the application before the county judge “upon giving security for all costs which may be incurred in such contest should this case be decided in favor of the applicant.” Petitioner says that in view of these provisions, the Legislature intended for the contestant to have a right of appeal to the courts, and that we so held in State v. Gutschke, 149 Tex. 292, 233 S.W.2d 446. There the application was denied by the county judge, and the applicant appealed to the district court as expressly authorized by the statute. The district court granted the application, and we held that the citizen-protestants were then entitled to appeal to the Court of Civil Appeals.

Paragraph (e) of Article 667-6 provides that “in the event the judgment of the district court shall be favorable to the applicant and an appeal is taken * * The final clause of the same paragraph exempts the state from the requirement that a bond be given by anyone appealing from a judgment or order. These are the provisions referred to in Gutschke when it was pointed out that the statute plainly contemplates appeals from the district court by someone on the protestant side, makes it clear that such appeals include those on behalf of the state, but discloses no intent to exclude appeals by citizen-protestants. It was in this context that we said the Legislature, after providing for participation of private citizens in the proceeding before the county judge, would have expressly denied their right to appeal unless it was intended for them to have it. Although petitioner argues to the contrary, Gutschke does not hold that the statutory authorization to participate in the hearing before the county judge carries with it the right of appeal to the courts.

It is somewhat anomalous to say that the contestant may appeal from an adverse ruling of the district court but not from a similar order by the county judge or the Board. There is nothing in the statute, however, which suggests that anyone may appeal when the application is approved by the county judge or when a license is issued by the Board. After approval of the application, the applicant must present the order of the county judge to the tax collector and pay the required fees. The tax collector then sends a copy of the application to the Board with a certificate showing that the same has been approved and the fees paid. Upon receipt of this report the Board is authorized to issue a license if it finds that the applicant is entitled thereto but may refuse to do so “if in possession of information from which it is determined that any statement contained in the application therefor is false, untrue, or misleading, or that there are other legal reasons why a license should not be issued.”

There could be no appeal to the courts from the interlocutory order of the county judge, and Article 667-6 does not even provide that the contestant shall be given notice or a hearing by the Board. In our opinion the statute does not authorize or contemplate an appeal from the order of the county judge approving the application or from action of the Board in issuing a license. The case is thus governed by the general rule mentioned above. Since petitioner asserts no violation or impairment of any constitutional or vested property right, his attempted appeal was properly-dismissed by the trial court. The judgment of the Court of Civil Appeals is accordingly affirmed.


author: GRIFFIN, Justice. STEAKLEY, Justice. NOR YELL, Justice.

text:
    Aramis REKDAHL et ux., Petitioners, v. James M. LONG et al., Respondents.
    No. A-11790.
    Supreme Court of Texas.
    June 28, 1967.
    Dissenting Opinion July 19, 1967.
    Rehearing Denied July 19, 1967.

      Kelley, Ryan & Merrill, C. O. Ryan and William J. Merrill, Houston, for petitioners.
    Fulbright, Crooker, Freemán, Bates & Jaworski, Chester M. Fulton, Houston, for respondents.
   GRIFFIN, Justice.

This is a suit brought in the District Court of Brazoria County, Texas, by Aramis Rekdahl and his wife, as plaintiffs, against James M. Long, Trustee under the will of Mabel A. Rekdahl, mother of Ar-amis, and other beneficiaries under this trust, as defendants. The plaintiffs seek to have the provisions of the will establishing the trust declared void as being in violation of the rule against perpetuities set out in Section 26 of Article 1 of the Constitution of this State, Vernon’s Ann.St. The cause was tried before the trial judge without a jury, and the trust provision was held to be valid. On appeal to a Court of Civil Appeals, the trial court’s judgment was affirmed. 407 S.W.2d 339. We affirm the judgments of both courts below.

It is only Section III of Mabel Rekdahl’s will that plaintiffs contend violates the rule against perpetuities. This section is set out in full in the Court of Civil Appeals opinion, and we will refer to the sections pertinent to our discussion.

This Section III is entitled “TEXAS TRUST.” The first paragraph of this portion of the will provides:

“I give, bequeath and devise to my trustee hereinafter named all property whether real or personal or mixed which I die owning or in which I have any interest upon my death, which is located in or having a legal situs in the State of Texas in trust for the benefit of persons and as follows, to-wit: * *

This created an express trust with the legal title to the trust property in Defendant Long, as trustee, and the equitable or beneficial title in the “persons” enumerated in the succeeding paragraphs of Mrs. Rekdahl’s will. Rust v. Rust (Tex.Civ.App., 1948), 211 S.W.2d 262, 266, approved by Sup.Ct, 147 Tex. 181, 214 S.W.2d 462 (1948); 57 Tex.Jur.2d 411 et seq. and authorities therein cited. The troublesome questions in this case are who are the beneficiaries and when does their title vest ?

There are certain rules of construction governing our decision herein. The general rule is that the court should determine the intention of the testator from the language he used in the will. Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, 906 (1954).

Another rule is that where an instrument is equally open to two constructions, one of which would make the provision valid and the other void, the one will be given which makes the will valid. Kelly v. Womack, supra; Neely v. Brogden (Tex.Com.App., 1922), 239 S.W. 192; 61 Tex.Jur.2d 264, § 143 and authorities cited.

Now, in the light of these rules, let us determine who are the “persons” beneficiary under the will of Mabel Rekdahl. The second paragraph of the will is styled “A” and provides in substance that the trustee shall have charge of all of her Texas property, manage the same and collect all income therefrom and pay all expenses, the expenses of administering the trust, and all other proper charges against the trust, and pay the income as follows: First, to pay Aramis Rekdahl $200.00 per month for his lifetime and with authority to increase this amount by adding further sums from the principal (corpus) or income of the trust; second, to pay to testatrix’ sister, Mildred Manning, under certain conditions, from the income of the trust $100.00 per month during Mildred’s life; third, to pay to Harold Rekdahl, testatrix’ brother-in-law, from the income of the trust $50.00 per month during his life. The bequests to Mildred and Harold each are made cumulative .so that in the event the income from the trust shall be insufficient to make any monthly payment, future excess income is to be used for the bequests. Next follow directions to the trustee, after payment of the above bequests, to accumulate from the trust income a fund of $25,000.00 to insure the payments from the income above set out to the named beneficiaries. There is established a second accumulation whereby the trustee is to accumulate $10,000.00 from the trust income to be paid in equal shares to her brothers and sisters and the brothers and sisters of her deceased husband, and this also may be used to pay medical expenses, etc., during the life of any or all of these beneficiaries.

There is a common provision in each of the first and second accumulations which states, “ * * * provided, however, that if Aramis Rekdahl dies before I die, then such accumulation shall be made until twenty-one years after my death or until the entire trust hereunder terminates, whichever is sooner.”

Paragraph 6 provides that payment of the balance of the net income after the foregoing bequests are paid shall be made to Aramis Rekdahl for his lifetime. Paragraph 7 provides what the trustee shall do with the payments to Aramis Rekdahl upon his death, or if he has predeceased testatrix, upon her death. One-fourth is to be paid to Aramis’ widow, Violet, during her lifetime and the remaining 75% of the income paid in equal shares to “his [Ar-amis’] children who survive him,” and “if any child of Aramis Rekdahl dies leaving issue, then such issue shall take the share which his or her parent would have taken had he or she survived him.” Upon Violet’s death her share is to be paid to “the said children or issue of Aramis Rekdahl.” Then follows a provision for payment of income to continue until “such child receiving hereunder is thirty-five years of age.” As each such child successively becomes thirty-five years of age, he is to cease receiving any income. In this event, the income is to be divided among the child or children of Aramis who have not reached thirty-five years of age. To make more definite her meaning, the testatrix provides that, “all such payments from income shall cease when the last of such children has become thirty-five years of age, and for this purpose, issue of any deceased children of Aramis Rekdahl shall not be considered in determining such time.”

Paragraph 8 governs the distribution of the trust estate. Summarizing, it provides that after the death of Aramis Rekdahl “and after his children have successively attained the age of thirty-five years or have died, so that there is none left to attain the age of thirty-five years, then the trust shall terminate” (except the second accumulation), “and all of the assets, whether corpus or income of the trust, shall be distributed in equal and undivided shares to the children of Aramis Rekdahl who survive him, provided, however, that if such children die leaving issue who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken.” Then follow directions as to the disposition of the trust income known as the second accumulation for brothers and sisters. The balance upon termination of the “second accumulation” is to be distributed in equal and undivided shares to the children of Aramis Rekdahl who survive him, provided, however, that if any such children die before Aramis Rekdahl, leaving issue who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken if he or she had survived. (All emphasis that of the Court.)

At this point we will refer to paragraph 9 as the spendthrift trust provision, but will discuss this matter in detail later in this opinion.

The concluding paragraph 10 appoints a trustee of- the trust and provides for substitute trustees, etc.

From a reading of the will it is apparent that the beneficiaries of Mabel Rekdahl’s estate were: first, and of prime importance, Aramis Rekdahl, who was to receive the major part of the income during his lifetime, with power in the trustee to care for and see to it that Aramis was taken care of in illness or misfortune and in accordance with his customary standard of living. At Aramis’ death, his children who survived him and the issue of any child who had predeceased Aramis and who survived him were to receive the income from the estate. These are the ones holding the equitable title to the corpus of this trust. The bequests to Mildred Manning, Harold Rekdahl, and the brothers and sisters were only of income from the trust estate, and these are not mentioned as receiving any part of the distribution of the trust fund, and therefore are not owners of any part of the corpus of the trust fund.

The next question to be decided is, “When does the title of the ultimate beneficiaries of this trust vest?” If at the death of Aramis Rekdahl, then there is no violation of the rule against perpetuities. If there is no vesting of title in the beneficiaries until the final distribution of the trust, then the rule against perpetuities could be violated. This would happen in the event Aramis left a surviving child, born after the death of testatrix, and who lived to be over twenty-one years plus ten months of age and outlived any of the other children of Aramis Rekdahl or the issue of deceased .children of Aramis surviving him who were living at the time of testatrix’ death. This is true because under this contention the trust could not be distributed until this surviving child became thirty-five years old, and it is contended title would not vest in children or issue of deceased children of Aramis until that time.

The will provides that upon the death of Aramis, his rights in the trust shall pass to his children who survive him, and in the event there be a deceased child of Ar-amis, then to the then surviving issue of such deceased child who would take the share their deceased parent would have taken if alive at the time of Aramis’ death.

When the will became effective on the death of Mabel Rekdahl, Aramis survived her. He was married and had three children. Each of these children had living children. Clearly, whatever estate was in Aramis or his then living children could not possibly be in violation of the rule against perpetuities. However, Aramis could father another child or other children so long as he lived. At his death it would be possible for Aramis to have a child en ventre se mere, but if this were true, such child would be one of Aramis’ children who survived him, and under the terms of the will he would take an interest in the trust estate as a surviving child. The same is true should Aramis father other children. The death of Aramis Rekdahl determines who are the remaindermen after Aramis’ life estate and who would take the equitable title.

“ * * * the rule ‘rule against per-petuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation.’ ” Kettler v. Atkinson (Tex.Sup., 1964), 383 S.W.2d 557, 560. See also Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600 (1951).

“It is immaterial that full possession and enjoyment of the property is postponed beyond the period of a life or lives in being and twenty-one years thereafter with the ordinary period of gestation added.” Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954); Rust v. Rust (Tex. Civ.App., 1948), 211 S.W.2d 262, 267, opinion expressly approved by Sup.Ct., 147 Tex. 181, 214 S.W.2d 462 (1948) ; Anderson v. Menefee (Tex.Civ.App., 1915), 174 S.W. 904.

The law favors a construction that will permit the earliest possible vesting of an estate. Crowley v. Vaughan (Tex. Civ.App., 1961), 347 S.W.2d 12, writ refused; Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948).

“In this connection it should be noted that the law favors the vesting of estates rather than otherwise; that is, if the will when fairly construed leaves the question in doubt, the doubt will be solved in favor of the vesting of the title at the earliest possible moment, so as to avoid a conflict with the rule against perpetuities and to uphold the will.” Anderson v. Menefee, 174 S.W. 904 (Tex. Civ.App., 1915), writ denied.
“It is, of course, essential to immediate vesting (possession or enjoyment being postponed) that the person to take be presently in existence and of certain identity. See 2 A.L.I.Rest.Property, § 157, com. q. And it is also well established that the fact the legal title is vested in trustees, with full discretion as to the application of the income or corpus to the uses of the beneficiary during the trust period, does not militate against the immediate vesting of the beneficial (equitable) title in the beneficiary, * * * ” Rust v. Rust, 211 S.W.2d 262.

The case of Rust v. Rust (Tex.Civ.App., 1948), 211 S.W.2d 262, approved 147 Tex. 181, 214 S.W.2d 462 (1948), is helpful in our deciding when the equitable title herein vests in the beneficiaries. The question for discussion in Rust was whether the provisions of John Y. Rust, Jr.’s will disposing of the residuary estate violated the rule against perpetuities. A similar claim is made by petitioners herein. Testator Rust left a will whereby he gave, devised and bequeathed in trust to his executors and trustees all of his residuary estate to hold, manage, use and control for “the use and benefit” of his daughter, Margene A. Rust. The trust estate was to be held together until October 17, 1967, when it should terminate and the fee simple title should vest in the daughter. If the daughter died without leaving surviving issue of her body prior to the termination date of the trust, then all of the property left in trust was given to testator’s then living brothers and sisters, with the child or children of any predeceased brother or sister taking the share of the parent per stirpes. Should the daughter die prior to the termination date, leaving issue of her body, then such issue were to become the beneficiaries of the trust and receive the title to the trust property in fee simple upon termination date qf the trust. The trustees were given the power to possess, handle, manage, and control the trust property with full power and authority to mortgage, sell, and convey same or any part thereof, to invest and reinvest the proceeds, etc., which may be incident to the complete management and control thereof. The trustees were also given the power to use any portion of the income or corpus for the daughter’s support, maintenance, and education or for any of the daughter’s child or children who might become the beneficiaries of the trust.

In stating the question to be decided by the court, the court said:

“Since on May 6, 1942 (the date of testator’s death) it was within the range of possibilities that Margene A. Rust (born October 17, 1932) might die before October 17, 1946 (21 years prior to the termination of the trust period) and leave a surviving child, the controlling issue is whether, on the one hand, her interest in the property constituted a vested (base) fee subject to defeasance in case of her death prior to October 17, 1967, or, on the other hand, no title would vest in her unless and until she was living on that date. Stated differently, the issue is whether (a) her living until October 17, 1946, constitutes a condition precedent to the vesting of any title in her (appellants’ contention), or (b) her death prior to that date constitutes a condition subsequent divesting the title vested in her as of the date of her father’s death.”

The court held the fee simple title vested in the daughter on the death of the testator — her father — defeasible upon the condition subsequent of her death prior to October 17, 1967, and subject to the trust provisions. Upon the death of the daughter prior to October 17, 1967, without issue, the fee simple title vests in the brothers and sisters. In the event the daughter died prior to October 17, 1967, leaving issue, title vested in such issue “then surviving.” The court held that “then surviving” meant issue surviving at the time of the daughter’s death and not at the termination of the trust. Considering the will as a whole, the court found that it did not violate the rule against perpetuities and affirmed the trial court’s judgment so holding. This Court wrote a very short opinion, stating among other things that, “we approve the opinion of the Court of Civil Appeals and find it unnecessary to write further.” The judgment of the Court of Civil Appeals affirming the trial court’s judgment was affirmed.

The powers given to the trustees in Rust were much stronger than in our case. In our case the contention is urged that there is no vesting of title until the end of the trust estate, as was argued in Rust. In our case it is also urged that the taker of the title, when the trust is ended and its assets distributed, will not be ascertainable until distribution, therefore, there is a possibility this event will occur more than twenty-one years, plus the period of gestation, after the death of those in being at the testatrix’ death.

The language of Mabel Rekdahl’s will is clear as to whom the takers of the remainder estate will be. They are the children of Aramis who survive him at the time of his death, plus any surviving issue of a deceased child of Aramis. Petitioners rely on a portion of paragraph 8 of the will as support for their contention that no title vests until distribution. That language is found in the part of the will providing for the end of the trust except the second accumulation. The language is, “ * * * such trust shall be distributed in equal and undivided shares to the children of Aramis Rekdahl, who survive him, provided however that if any such children dies leaving issue who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken.” It is claimed that “if any such children dies leaving issue, etc.” refers to the death of grandchildren of Ara-mis who die leaving issue, and therefore the “issue heirs” cannot possibly be known until the time of distribution. An examination of the rest of paragraph 8 which sets out how the residue of the second accumulation is to be distributed, and who are the “takers” of such balance makes clear testatrix’ meaning. The language used is, “ * * * any residue therein shall be distributed in equal and undivided shares to the children of Aramis Rekdahl, who survive Aramis Rekdahl, provided however, that if any such children dies before Ara-mis Rekdahl, leaving issue who survive Aramis Rekdahl, then such issue shall take the share which such parent would otherwise have taken if he or she survived.” There can be no question but that “such children” as used in this last part of paragraph 8 refers only to a child of Aramis, and not to issue of such deceased child, i. e., grandchildren and great-grandchildren. The words “child,” “children,” or “issue" are not mentioned in the first six paragraphs of Mabel Rekdahl’s will. It is only in paragraphs 7 and 8 of the will that we find the words “child,” “children,” or “issue.” In paragraph 7 “child” or “children" of Aramis is always used to designate the immediate offspring or issue of Aramis’ body. The word “issue” is used to designate the “offspring or issue” of a “child or children” of Aramis. To make clear this distinction the last sentence in paragraph 7 provides, “Such payments shall continue until such child receiving hereunder is thirty-five years of age, at which time each of such children successively becoming thirty-five years of age, shall cease to receive any money therefrom and. the full balance of such payment shall be made to such child or such children of Aramis Rekdahl who has not or have not attained the age of thirty-five years, provided further however all such payments from income shall cease when the last of such children has become thirty-five years of age, and for this purpose, issue of any deceased children of Aramis Rekdahl shall not he considered in determining such time.”

We hold that by the words “if any such children dies leaving issue who survive Aramis Rekdahl” mean that “such children” refers to the children of Aramis Rekdahl who die before his death and not to his grandchildren or great-grandchildren. The “such issue” referred to means the issue of a deceased child of Aramis Rekdahl. These issue are substitutional takers, i. e., their interest vested at the death of their parent, and therefore the gift of the parent’s portion to them is valid. Leach and Tudor, The Rule Against Perpetuities, p. 61 note 6 (1957).

As was said in Munger v. Munger (Tex.Civ.App. 1927) 298 S.W. 470, 474, writ refused: “The provisions of the will now under consideration are not of doubtful meaning, but, if they should be so considered, it would be our plain duty to give them such interpretation, guided by applicable rules of course, as would uphold, rather than destroy the trust. Neely v. Borgden (Tex.Com.App.1922), 239 S.W. 192 (193).”

Our holding is that the beneficial title to the trust estate vested in Aramis Rekdahl for his life, with remainder in his surviving children and the surviving issue of any child of Aramis who has predeceased him. In the event any of Aramis’ children were deceased at the time of his death, the surviving issue of such deceased child took the portion to which such deceased child would have been entitled if alive at that time. Possession and enjoyment of the takers of the trust properties is postponed until distribution.

Paragraphs 4 and 5 of Mabel Rekdahl’s will (first and second accumulations) plainly demonstrate that testatrix did not intend the trust to last longer than twenty-one years after her death, should Aramis Rek-dahl predecease her. That language is “ * * * then such accumulations shall be made until twenty-one years after my death, or until the entire trust hereunder terminates, whichever is sooner.”

Petitioners claim there are no words of gift to any of the beneficiaries of the trust estate or an interest therein.

The preamble of Article III of testatrix’ will says, “I give, bequeath, and devise to my trustee * * * in trust for the benefit of persons and as follows, to-wit, * * These are words of gift. The testatrix states by this paragraph that she gives the property. The remainder of the article is a description of the manner in which she gives it. Thus, petitioners’ argument that there are no words which show an intent to vest any interest in anyone prior to the termination of a trust is not sound. Furthermore, this argument of petitioners that the only provision for ultimate vesting of interests in the trust property is contained in the direction to divide and distribute at the termination of the trust, is based on the rule of construction known as the “divide and pay over rule.” The rule has little vitality in modern law, Schwartz, Future Interests and Estate Planning 259 (1965), and has been disapproved by the courts of Texas, Crowley v. Vaughan, 347 S.W.2d 12 (Tex.Civ.App., 1961), refused.

If the phrase “who survive him” is the only condition precedent attached to the gift to the children of Aramis, the condition will be met at Aramis’ death, and the interest must vest, if at all, at that point. Under this construction if a child of Aramis does predecease Aramis, that child’s interest ends and his issue who survive Aramis take the place of their parent. Thus the interests of the substitutional takers must also vest, if at all, at Aramis’ death. Under this construction all remain-dermen are ascertained and their interests vest, if at all, upon the death of a life in being (Aramis’ life) — well within the period allowed by the rule.

Petitioners’ final argument is that the language of paragraph 9 demonstrates an- intent that no interest vest until the distribution of the trust. This paragraph is a spendthrift provision, and its purpose is to prevent anticipation in enjoyment, assignment, or attachment of the trust assets by the beneficiaries. The language relied on by petitioners is “neither the assets or [of] such trust or any part of the trust referred to above, nor the income therefrom shall vest in any of such beneficiaries, until the termination of said trust * * This language is easily construed as meaning “vest in possession.” Such a construction is entirely in keeping with the purpose of a spendthrift clause. However, the construction of “vest in interest” is inconsistent with the prior language of the will which orders income paid out and allows invasion of the corpus at the discretion of the trustee (paragraph 1). Petitioners’ construction is also inconsistent with the gifts which have no condition precedent other than surviving Aramis, e. g., the residue of the second accumulation. Assume, however, that the language is open to either a “vest in possession” or “vest in interest” construction. When an instrument is equally open to two constructions, the one which renders the instrument valid will be accepted. Kelly v. Womack, supra. We hold that the language of paragraph 9 is a spendthrift trust provision and “vest” refers to “vesting in possession.”

Petitioners cite as controlling the case of Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800, 802. This Court in Kelly v. Womack, supra, discussed the case of Henderson v. Moore and distinguished it. The language pointed out by the Court in Henderson v. Moore as demonstrating that the testator clearly expressed an intention that there be no vesting of any title until twenty-five years after his death is not found in Mabel Rekdahl’s will. It was said in Kelly v. Womack: “We are of the opinion that the beneficial or equitable title vested in the named living beneficiaries at the time of the execution of the deed regardless of the attempted restraint on alienation.” 268 S.W.2d 905.

We hold that the beneficial or equitable title to this trust vested in Aramis Rek-dahl for his lifetime, with a contingent remainder vesting in his children who survive him and in the surviving issue of any child of Aramis who has predeceased him to take per stirpes.

The judgments of both courts construing Mabel Rekdahl’s will are affirmed.

DISSENTING OPINION

STEAKLEY, Justice.

I am unable to agree with the holding that the title of the ultimate beneficiaries vests at the death of Aramis Rekdahl. Such title does not vest until the termination of the trust, and thus, as pointed out on page five of the majority opinion, the conveyance is violative of the Rule Against Perpetuities.

In determining whether a particular conveyance violates the Rule Against Perpetuities, the crucial consideration is the language employed. See Kettler v. Atkinson, 383 S.W.2d 557, 561 (Tex.Sup.1964); Restatement, Property § 242 (1940) ; cf. W. B. Leach & J. Logan, Future Interests and Estate Planning 245 (1961). The will in question provides in part:

“8. After the death of'Aramis Rekdahl and after his children have successively attained the age of thirty five years or have died so that there is none left to attain the age of thirty-five years then all of this trust shall terminate. * * *
“9. Neither the assets of such trust nor any part of the trusts referred to above, nor the income therefrom shall vest in any of such beneficiaries until the termination of said trust. * * * ” (Emphasis added.)

The word “vest” may denote either a vesting in interest or a vesting in possession. See, e. g., Randall v. Bank of America, 48 Cal.App.2d 249, 119 P.2d 754 (1941); Burney v. Arnold, 134 Ga. 141, 67 S.E. 712 (1910). However, the ordinary meaning of the word “vest” is “vest in interest”, and courts are reluctant to construe the word “vest” as meaning “vest in possession.” See In Re Haney’s Estate, 174 Cal.App.2d 1, 344 P.2d 16 (1959); 3 T. Jarman, Wills 2042 (8th ed 1951).

By virtue of the first clause of paragraph eight, set out above, the proceeds of the trust vest in possession at the termination of the trust. Therefore to ascribe the meaning “vest in possession” to the word “vest” in paragraph nine renders the first clause of paragraph nine mere surplusage. A will should be construed so as to give effect to every clause. See Irons v. Fort Worth Sand & Gravel Co., 260 S.W.2d 629, 631 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n. r. e.). Thus the word “vest” in paragraph nine means vest in interest, and the interest of the ultimate beneficiaries does not vest until the termination of the trust.

At common law, where an interest may vest too remotely, the entire interest has been stricken down. See W. B. Leach & O. Tudor, The Rule Against Perpetuities § 24.47 (1957). Ignoring a testator’s obvious intent and striking down a bequest because the scrivener of his will was unlearned in all of the intricacies of the Rule Against Perpetuities seems basically wrong. Recognizing this, a number of legal writers have advocated the application of the principle of cy pres (also known as equitable approximation) to perpetuities problems. See 6 American Law of Property § 24.11 at 42 (Casner ed. 1952); L. Simes & A. Smith, Future Interests § 1257 (2d ed. 1956); L. Simes, Public Policy and the Dead Hand 74-80 (1955); Browder, Construction, Reformation, and the Rule Against Per-petuities, 62 Mich.L.Rev. 1 (1963); Leach, Perpetuities Legislation: Hail Pennsylvania, 108 U.Pa.L.Rev. 1124, 1149 (1960); Quarles, The Cy Pres Doctrine: Its Application to Cases Involving the Rule Against Perpetuities and Trust for Accumulation, 21 N.Y.U.L.Q. 384 (1946); contra J. C. Gray, Rule Against Perpetuities §§ 857-893 (4th ed. 1942.)

The doctrine of cy pres goes on the principle that “where there is a general and a particular intent, and the particular one cannot take effect, the words shall be construed to give effect to the general intent.” Robinson v. Hardcastle, (1788) 2 Durn. & E. 241, 254. The most common application of the cy pres doctrine is in the law of charitable trusts. If it is impossible, impractical, or illegal to carry out the terms of a charitable trust, and the settlor has indicated a general charitable purpose, the courts will authorize the substitution of another charitable scheme within the general purpose. See generally Coffee v. William Marsh Rice University, 408 S.W.2d 269, 285-286 (Tex.Civ.App. — Houston 1966, writ ref’d n. r. e.); Restatement (Second) of Trusts § 399 (1959); 4 A. Scott, Trusts § 399 (1959). There is no logical reason why a similar process should not be applied to a perpetuities problem where the age contingency is in excess of twenty-one years. Where the dominant intent expressed throughout the will relates to who should be the beneficiaries and not when the distribution should take place, an age contingency in excess of twenty-one years should be reduced to twenty-one.

Reduction of an age contingency to avoid the destructive effects of the Rule Against Perpetuities is not a recent innovation. In 1832, the English Commissioners on the Law of Real Property recommended that where a gift violated the Rule by reason of an age contingency in excess of twenty-one years, the contingency should be reduced to twenty-one. Parliament adopted this recommendation in 1925. Since then, Connecticut, Maine, Maryland, Massachusetts, and New York have enacted similar perpetuities legislation.

Cy pres developments have not been limited to the legislature. On the judicial front, the Supreme Court of New Hampshire reduced an age contingency without the aid of a statute in Edgerly v. Barker, 66 N.H. 434, 31 A. 900, 28 L.R.A. 328 (1891). There the testator provided that the estate would vest when the youngest of his grandchildren attained the age of forty. By cy pres, the New Hampshire Supreme Court reduced the age contingency to twenty-one years. In Carter v. Berry, 243 Miss. 321, 140 So.2d 843, 95 A.L.R.2d 791 (1962), the Mississippi Supreme Court took a similar position. There the testator directed that the trust continue until his youngest grandchild reached twenty-five. The court relied heavily upon Edgerly and adopted its cy pres solution of reducing the age contingency to twenty-one years.

The Rule Against Perpetuities “should be a check on vain, capricious action by wealthy empire builders. But it should not be a constantly present threat to reasonable dispositions which slightly overstep a technical line.” W. B. Leach & O. Tudor, The Rule Against Perpetuities § 24.11 at 43 (1957). Reduction of an age contingency to twenty-one years where this helps effectuate the primary intent of the testator is a step toward relegating the Rule Against Perpetuities to its proper function. So, here as in Edgerly v. Barker, supra, and Carter v. Berry, supra, the court should look to the testatrix’ dominant intent. A reading of the entire will makes clear that Mabel Rekdahl’s dominant intent was that the children of Aramis Rekdahl, rather than Aramis Rekdahl himself, receive the proceeds of the trust. That they should not have it until the youngest reached the age of thirty-five was secondary. Utilizing cy pres, the thirty-five year age contingency should be reduced to twenty-one, and the proceeds of the trust should be distributed when the youngest of Aramis Rekdahl’s children, whenever born, reaches the age of twenty-one.

This reduction of the age contingency eliminates any possibility of the interest here in question not vesting within a life in being and twenty-one years. For purposes of the Rule Against Perpetuities, Aramis Rekdahl is a life in being. See generally W. Schwartz, Future Interests and Estate Planning § 6.3 (1965). With this reduction m the age contingency, the interest would have to vest, at the very latest, twenty-one years after the death of Aramis Rekdahl.

CALVERT, C. J., and GREENHILL, J., join in this dissent.

DISSENTING OPINION

NOR YELL, Justice.

I am m essential agreement with what Mr. Justice Steakley says in the forepart of his dissenting opinion. Under the plain wording of the document before us, title to the property which is the subject matter of the testamentary trust created by Mabel Rekdahl did not vest until the termination of such trust and hence the provisions contained in Mrs. Rekdahl’s will creating such trust are violative of the rule against per-petuities.

The public policy sought to be served by the rule is an important one and is strongly stated in our Constitution: “Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, * * (Article 1, § 26, Texas Constitution.) However, the expedient of knocking off a few years so as to amend the will to save the trust is but little more acceptable to me than the adoption of the “postponement of possession” device fashioned by the majority to circumvent the rule. In today’s fast moving world, we should not encourage the vain attempts of those who attempt to place a “dead hand” upon the movement and transfer of property when no public or charitable purpose is accomplished thereby. And, I submit, we should not amend, construe and change written instruments because scriveners are unlearned in the intricacies of the rule against perpetuities, the requirements of the statute of wills, the niceties of the law of conveyances or the refinements of the statutes of fraud. To the contrary, we should give the words contained in the document their clear meaning and purport, and then apply the applicable public policy rule thereto. The adoption of any other rule will produce uncertainty and result in confusion. I would render judgment for petitioners.

      I. “Judges who have made up their minds to develop a better law of perpetuities should not allow themselves to be bullied by Gray’s massive volume. * * * ” “Gray’s patient scholarship was devoted to establishing a monolithic Rule, beautiful in its logical self-consistency. * * * Certainty, simplicity and clarity are desirable in any rule of law, but they are not the only virtues or even sufficient virtues.” See Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 66 Harv.L.Rev. 721, 747 (1952).

      . Law of Property Act, 9th April, 1925, XV Geo. 5, ch. 20, § 163.

      . Conn.Gen.Stat.Ann. § 45-96 (1960). See 54 Mich.L.Rev. 723 (1956).

      . Me.Rev.Stat.Ann. ch. 160, § 28 (Supp. 1961). See 54 Mich.L.Rev. 723 (1956).

      . Md.Ann.Code, art. 16, § 197A (1957).

      . Mass.Ann.Laws ch. 184A § 2 (1958). See Leach, Perpetuities, Legislation, Massachusetts Style, 67 Harv.L.Rev. 1349 (1954).

      .N.Y. Real Prop.Law, McKinney’s Consol. Laws, c. 50, § 42-b; N.Y. Personal Property Law, McKinney’s Consol.Laws, c. 41, § 11-a.

      . There is considerable difference of opinion as to whether the cy pres doctrine should be limited to reforming age contingencies. Compare Leach, Perpetuities: Cy Pres on the March, 17 Vand.L. Rev. 1381, 1385 (1964), and Schuyler, Should the Rule Against Perpetuities Discard Its Vest? 56 Mieh.L.Rev. 683, 726 (1958). Since the case at bar involves an age contingency, it is unnecessary to enter into this controversy.


author: MORRISON, Judge.

text:
    Lafayette Cornelius THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 40553.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      D. C. Gandy, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Roland H. Hill and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is forgery; the punishment, two years in the Department of Corrections.

Jury was waived and trial was had before the court on December 5, 1966.

State’s witness, Robert C. Moore, testified that on the day in question, he was employed as a department manager for R. E. Cox and Company, when a person whom he identified as the appellant entered the store and purchased a man’s suit for over $85.00. Payment for the suit was made through the use of a charge-a-plate bearing the name of Earl A. Gillis and a charge ticket to which appellant signed the name of Earl A. Gillis. Upon checking with the credit department, an ascertainment was made by Moore that the charge-a-plate was not “in possession of its owner, that Mr. Gillis passed away.” The appellant left the store and was followed and apprehended by the store manager and store security officers. Upon his apprehension he relinquished the charge-a-plate and several other credit cards bearing the name of Earl A. Gillis.

Mrs. Earl A. Gillis testified for the State that her husband had “passed away” approximately twelve years ago, but that she had continued to use the credit cards. She further testified that on the day in question, the charge-a-plate and credit cards found in appellant’s possession had been stolen from her purse while she was in a store at another location, and she testified that she had not given the appellant permission to use the same.

The appellant did not testify or offer any evidence in his behalf.

Appellant’s only ground of error urged in argument before this Court is that the State did not sustain its burden of proving that Mr. Gillis had not given permission for him to use the charge-a-plate. He relies on Turner v. State, 146 Tex.Cr.R. 474, 176 S.W.2d 327, wherein the Court stated that “it was incumbent upon the State to prove that the name of C. M. Wilson was signed to the check in question without lawful authority.”

In that case the State had a witness, C. M. Wilson, available who could have testified that he had not given the appellant authority to sign his name if such had been the case. The Court stated that “When the State has witnesses available by whom it might prove a necessary fact and fails to do so, such fact will be construed most strongly against it.”

In the case at bar, Mrs. Gillis testified that she had not given appellant permission to use the charge-a-plate, and, Mr. Gillis being deceased, other testimony as to appellant’s authority to use the charge-a-plate was not available to the State. In such cases we feel that the better rule is that set out in Carter v. State, 61 Tex.Cr.R. 609, 136 S.W. 48, wherein the Court stated, “If he had authority to sign G. A. Brown’s name to the check, if in fact there was such a person, these facts were peculiarly in the knowledge of defendant, and he could easily have shown the fact. The state made its case when it proved that defendant’s name was J. H. Carter; that he represented himself to be G. A. Brown, and signed that name to a check, and obtained goods and money thereon in that name.”

Appellant in the case at bar offered no proof that he had authority to use the charge-a-plate. We overrule appellant’s contention.

Finding no reversible error, the judgment is affirmed.


author: ONION, Judge.

text:
    Ex parte Gerald L. MORGAN.
    No. 40610.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Gerald L. Morgan, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

Relator, an inmate of the Texas Department of Corrections, seeks his release by original application, pro se, for habeas corpus. He is presently confined by virtue of judgments and sentences entered in Cause Nos. 10,714 and 10,744 in 5th District Court, Cass County, Texas.

Relator contends that the punishment assessed in each cause, fifteen (15) years, is in excess of the maximum penalty provided by law for the offenses involved and that such sentences are therefore excessive and void.

We shall discuss each case separately.

The indictment in Cause No. 10,744 charges the offense of cattle theft in the first count thereof, with two prior felonies less than capital alleged for enhancement. The judgment in said cause reflects that on January 10, 1966, relator entered a plea of guilty and was found guilty of “theft” and was assessed a punishment of fifteen (15) years confinement in the penitentiary. The sentence imposed, applying the indeterminate sentence law, recites a punishment of not less than two nor more than fifteen years.

Article 1441, Vernon’s Ann.P.C., provides as follows:

“Whoever shall steal any cattle or hog shall be confined in the penitentiary for not less than two (2) nor more than ten (10) years.”

This is the same penalty provided for the theft of property of the value of fifty dollars or more. Article 1421, V.A.P.C.

The punishment assessed in Cause No. 10,744 was therefore in excess of the maximum penalty provided for cattle theft. It is well established law that when one is confined in the penitentiary under a judgment and sentence the maximum of which is not authorized by law upon serving the authorized minimum he is entitled to discharge from the unauthorized maximum sentence. Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46; Ex parte Balas, Tex.Cr. App., 412 S.W.2d S3; Ex parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403; Ex parte Castleberry, 152 Tex.Cr.R. 583, 216 S.W.2d 584; Ex parte Erwin, 145 Tex.Cr. R. 504,170 S.W.2d 226.

It is shown by certificate of the Texas Department of Corrections that relator has credit in excess of three years and twenty-three days.

The sentence in Cause No. 10,744 being correct relative to the minimum of two years but void as to the maximum of fifteen years, it follows that relator, having served the legal portion of his sentence in said cause, is entitled to his release therefrom, and it is so ordered.

The indictment in Cause No. 10,714 charges the offense of felony theft in the first count thereof, defrauding by worthless check of the value of $45.00 in the second count thereof, with eight prior misdemeanor (worthless check) convictions and two prior convictions for felonies less than capital — all apparently alleged for the purpose of enhancement.

The judgment entered in Cause No. 10,714 reflects that on January 10, 1966, relator entered a plea of guilty and was found guilty of the offense of “forgery and passing” and was assessed a punishment of fifteen years. The sentence, applying the indeterminate sentence law, recites a punishment of not less than two nor more than fifteen years.

First, we observe that where forgery and passing a forged instrument are charged in the same indictment a conviction cannot be legally had for both offenses. 3 Branch’s Anno.P.C.2d, Section 1581, p. 722; Ex parte Castleberry, supra; Ex parte Willis, 158 Tex.Cr.R. 333, 255 S.W. 2d 510; Melancon v. State, Tex.Cr.App., 367 S.W.2d 690. Second, we note that neither of such offenses was alleged in the indictment in Cause No. 10,714, and that the punishment of fifteen years assessed is in excess of the maximum penalties provided by law for forgery, or passing a forged instrument, or any of the offenses charged in the indictment. Articles 995, 996, 1421, and 567b, V.A.P.C.

We find ourselves at a loss to know under which statute relator was assessed a penalty of fifteen years.

It would be idle for us to cite authorities holding that it is fundamental that the judgment and sentence must follow the indictment.

The conviction in Cause No. 10,714, being for an offense not alleged in the indictment, the conviction is void ab initio and is hereby set aside. The relator is remanded to the custody of the Sheriff of Cass County to answer the indictment in Cause No. 10,714 in the 5th District Court.

It is so ordered.


author: DICE, Judge.

text:
    George Robert CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 40541.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for aggravated assault upon a female; the punishment, four months in jail and a fine of $250.

Trial was before the court without a jury, upon appellant’s plea of guilty.

Appellant was not represented by counsel at the trial but, after the entry of judgment and sentence, a motion signed by appellant and his counsel to set aside the judgment and sentence was filed in the cause.

In the motion, appellant alleged as grounds therefor that he was denied an examining trial; that he was denied counsel and also the right to call his attorney prior to being taken before the court; that he was not given the “statutory time required by law” to prepare for trial; that he was not given a jury trial and the record did not show that he waived his right to a trial by jury; that no announcement was made by either of the parties at the trial; that the complaint and the information were not read in open court; and that no evidence was offered by the state showing his guilt or innocence or that the offense occurred in Bailey County.

At the hearing on the motion, in which appellant was represented by counsel, it was shown that — following his arrest on the charge — appellant was taken immediately before the county judge of Bailey County. A plea of not guilty was first entered by appellant and after bond was fixed he changed his plea to guilty. After judgment was rendered and sentence was pronounced, appellant expressed a desire to plead not guilty.

At the hearing, appellant testified in support of the allegations in his motion. He stated in his testimony that he did remember the court telling him that he had the right to “get” counsel but that he did not tell the court he did not want counsel.

The trial court certified, for purpose of the record, that at the trial he advised appellant of his right to an attorney, and that appellant indicated he did not want one. The court further certified that he went into the matter of appellant’s rights to an examining trial, his right to a trial by jury, and that he, further, admonished appellant of the consequences of his plea.

While no brief has been filed by appellant with the clerk of the trial court, as required by Sec. 9 of Art. 40.09, Vernon’s Ann.C.C.P., we have reviewed, as unassigned error, under the authority of Sec. 13 of the statute, the court’s action in refusing to set aside the conviction.

We do not construe Art. 16.01 of the 1965 Code as guaranteeing to an accused the right to an examining trial in a misdemeanor case. See: Ex parte Way, 48 Tex. Cr.R. 584, 89 S.W. 1075, wherein it was held that under the 1925 Code there was no necessity for an examining trial in a misdemeanor case. Further, there is no showing that appellant requested or was denied an examining trial.

In the absence of a showing that appellant was indigent, the court was under no duty to appoint counsel for him. Art. 26.04, V.A.C.C.P.

Considered as a whole, the record does not support appellant’s contention that he was denied a trial by jury, or time to prepare for trial, or the right to obtain an attorney.

It was not incumbent upon the state to offer evidence of appellant’s guilt or prove venue in Bailey County, upon his plea of guilty to the misdemeanor offense. Art. 27.14, V.A.C.C.P.; Palomo v. State, 157 Tex.Cr.R. 442, 249 S.W.2d 210.

It appears that appellant was informed of all his rights as required by Art. 15.17 of the Code.

Under the record, we perceive no error.

The judgment is affirmed.


text:
    Ex parte Charles YOUNG.
    No. 40645.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      James P. Neill, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is a habeas corpus proceeding attacking the validity of a life sentence for felony theft whereupon two prior convictions were used to enhance the punishment.

Petitioner alleges that the punishment in his primary conviction for felony theft was enhanced to life imprisonment by the use of two void sentences. The first was for burglary which resulted in a conviction in Cause No. 11450 in the District Court of Kaufman County in 1952 and the second was for burglary which resulted in a conviction in Cause No. 11620 in the same court in 1954. He contends that these sentences are void because he was not represented by counsel in either case at the time he plead guilty and waived a jury, as is required by Art. 1.13 Vernon’s Ann.C.C.P. (1965) (Art. 10a, V.A.C.C.P., 1925). The records before this Court at this time substantiate petitioner’s allegations. Each conviction is void. Wilson v. State, 157 Tex. Cr.R. 642, 252 S.W.2d 197, and Ex Parte Rawlins, 158 Tex.Cr.R. 346, 255 S.W.2d 877. Under the recent opinions by the Supreme Court of the United States in Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and opinions by this Court in Ex Parte Hammonds, Tex.Cr.App., 407 S.W.2d 779 and Ex Parte Greer, Tex.Cr. App., 408 S.W.2d 711, such convictions cannot be used to enhance punishment.

The maximum punishment for felony theft is ten (10) years under Art. 1421, V.A.P.C.

The record reflects that petitioner has served in excess of ten years and is entitled to be released from further confinement under the life sentence in Cause No. C-9815-IJ from Dallas County.

It is so ordered.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Vernon E. HILL.
    No. 40632.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      Vernon E. Hill, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking the conviction for forgery with punishment enhanced under Article 63, P.C., affirmed by this Court in Hill v. State, 149 Tex.Cr.R. 324, 194 S.W.2d 266.

It is now made to appear that in one of the prior convictions used to enhance the punishment in said cause the defendant entered a plea of guilty before the court without a jury to the offense of felony theft (Cause No. 14526 in the 18th District Court of Johnson County on October 31, 1932) and that he did not have a lawyer and was not represented by counsel at such trial as required by Article 10a, V.A.C. C.P., in effect at the time.

The prior conviction in Johnson County is void and its use in enhancing the punishment for a subsequent offense of forgery renders the latter conviction void. Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526; Ex parte Greer, Tex.Cr.App., 408 S.W.2d 711; Ex parte Rawlins, 158 Tex.Cr.R. 346, 255 S.W. 2d 877; Wilson v. State, 157 Tex.Cr.R. 642, 252 S.W.2d 197. It is made to appear that petitioner has served in excess of the minimum term for forgery which could have been lawfully assessed under the indictment.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement under the life sentence affirmed by this Court in Hill v. State 149 Tex.Cr.R. 324, 194 S.W.2d 266.

BELCHER, J., not participating.


author: BELCHER, Judge.

text:
    Ex parte Robert Milam McLANE.
    No. 40565.
    Court of Criminal Appeals of Texas.
    July 19, 1967.

      Tom Moore, Waco, for appellant.
    Crawford C. Martin, Atty. Gen., A. J. Carubbi, Jr., George M. Cowden, Robert L. Lattimore and Alio B. Crow, Asst. Attys. Gen., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The relator seeks his discharge from confinement in the Texas Department of Corrections by his application for writ of habeas corpus.

In support of his application he relies upon the following facts:

On March 22, 1957, the relator was convicted in Causes Nos. 13,983 and 13,984, in the 54th District Court of McLennan County for two offenses of robbery by assault, both being committed on January 11, 1957, and he was assessed five years in each case to be served concurrently.

On August 24, 1959, the relator was convicted in the Criminal District Court of Dallas County for the unlawful possession of a pistol, a felony offense by reason of his prior conviction of robbery by assault in said Cause No. 13,984 in McLennan County.

In October 1963, the relator was convicted in the 54th District Court of McLennan County on an indictment alleging commission of the primary offense of robbery by assault on January 27, 1963, with the prior conviction of robbery by assault in Cause No. 13,983, in the same court on March 22, 1957, alleged for enhancement.

It is contended that only one of the relator’s two prior convictions (Cause Nos. 13,-983 and 13,984,) which occurred on the same date and in the same court could be used by the state for the purpose of enhancing punishment; and that, the state having used No. 13,984, in the 1959 conviction in the Criminal District Court of Dallas County, the conviction in No. 13,983, was not available for use in the 1963 Mc-Lennan County conviction.

Sarcia v. State, • 169 Tex.Cr.R. 487, 335 S.W.2d 381, holding that under Art. 63, Vernon’s Ann.P.C., a prior conviction is not available to enhance the punishment for an offense of which it is an essential element is not applicable to the instant case, as the appellant contends.

The prosecution under Art. 489c, V.A.P. C., is not governed by the rules applicable in a prosecution under the enhancement statutes. The unlawful possession of the pistol is alleged and used only as an element constituting a felony offense where a prior conviction for certain offenses are alleged in connection therewith. The prior conviction in Cause No. 13,983 was alleged and used only as an element in charging a felony offense and not for enhancement. Appellant’s contention is overruled.

This holding should not be construed as restricting the further use of the prior conviction in No. 13,984, for the purpose of enhancing punishment.

The relator is presently confined under a conviction for the primary offense of robbery by assault with a prior conviction for robbery by assault alleged for enhancement. McLane v. State, Tex.Cr.App., 379 S.W.2d 339.

The application for the writ is denied.


text:
    Marshall E. BYERLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40561.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Brown & Hamby, by E. L. Hamby, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the use of profane language over a telephone; the punishment, two months in jail and a fine of $200.00

In order to properly appraise appellant’s grounds of error contained in his brief filed in the trial court, it will be necessary only to outline the State’s case. The prosecuting witness, a sixteen year old school girl whose mother was employed, received a series of telephone calls from the same person on the day charged in the information. The first call was presumably in answer to an ad she had run in the newspaper offering her services as a babysitter. It was during the course of these calls that the obscene and indecent suggestions were made by the caller. Later in the day appellant was apprehended as he approached the prosecuting witness’ automobile and identified himself as being the person who had called.

His first ground of error is the failure of the court to charge on the law of entrapment. He predicates his claim that such defense should have been submitted upon the following question and answer taken from his cross examination of the prosecuting witness:

“Q. Becky, did it ever occur to you when you were talking to this fellow on the telephone that maybe you were putting ideas in his head by your conversation; that maybe you were letting him be a little bit too fresh; that maybe you ought to hang up?
A. Well, at first, I wanted to, but the police told me to go along with him.”

We quote further from her testimony in answer to questions propounded by appellant’s counsel:

“Q. Up to that point, had there been anything obscene said over the telephone ?
A. Well, not obscene, but it was * * *
Q. Suggestive?
A. It seemed to me suggestive.
Q. All right. Then after your mother told you to play along with him, you proceeded to do just that when he would call?
A. Yes, sir.”

At no time did Becky testify that she had talked with the police personally. After Becky reported appellant’s first call to her mother, her mother contacted the police, but the police had no contact with appellant prior to his arrest.

We quote from Henderson v. United States, 5 Cir., 237 F.2d 169, 175, 61 A.L.R. 2d 666:

“Well settled, of course, it is that the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law.”

We further point out that appellant testified and denied that he made the telephone calls and call attention to that portion of the opinion of the Fifth Circuit Court of Appeals in the Henderson case cited above where the Court holds that where an accused denies the single specific act charged, he is precluded from relying on the defense of entrapment.

Appellant’s second ground of error is that the court failed to instruct the jury that Becky was an accomplice witness or submit the question of her accomplice-ship in the charge to the jury. We do not agree that Becky’s continued talking to appellant, pursuant to her mother’s instructions, after he became indecent in his conversation, constituted such aid as is contemplated by Article 66, Vernon’s Ann.P.C., which defines who are principals. We find nothing in Article 476, V.A.P.C., which defines this offense, indicating that the act of continuing to listen might make the listener a party to the act. In fact, this Court held in Taylor v. State, 76 Tex.Cr.R. 642, 177 S.W. 82, that the fact that the person receiving the call continued to listen when the telephone could have been disconnected would not constitute grounds for a defensive charge.

Finding no reversible error, the judgment is affirmed.