text:
    U. C. BOWERS, Appellant, v. STATE of Texas, Appellee.
    No. 33405.
    Court of Criminal Appeals of Texas.
    June 24, 1961.

      Clinton & Shelton, Lubbock, Huff & Bowers (Attorney Bowers no relation of appellant), Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Our prior opinion is withdrawn, and the following is substituted in lieu thereof.

The offense is enticing a female under the age of 14 years for the purpose of fondling her sexual parts; the punishment, ten years.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary other than to observe that appellant had worked for the Santa Fe Railway for 40 years and, so far as this record discloses, had never before been charged or convicted of a violation of the law. In his closing argument, the prosecutor said:

“I am asking you to put him in the penitentiary. * * * That’s what I’m asking you and I’ll stand with you on the verdict, and I want you to come to me and I’ll tell you after it’s all over that I’ll stand with you right down the line and you’ll have a little different light on this matter.”

This, we have concluded, was tantamount to telling the jury that if they would vote to convict appellant and then come to see the prosecutor he would tell them something which had not been introduced in evidence and further justify their finding of guilt. Such argument has been held reversible error in Smith v. State, 94 Tex.Cr.R. 427, 250 S.W. 1025, and Harrison v. State, 102 Tex.Cr.R. 385, 278 S.W. 430, and the holdings in such cases call for a reversal of this conviction.

Upon another trial, it is suggested that in charging that one of the State’s witnesses was an accomplice it would be wise for the trial court to follow one of the forms which have been approved by this Court and which are set out in 2 Branch’s Ann. P.C., 2nd Ed., Sec. 738, p. 36.

The State relied for corroboration of the prosecutrix upon the testimony of her female companion. He contends that the court erred in not holding such companion to be an accomplice as a matter of law and in not submitting such question to the jury for their determination. As stated, the indictment charged appellant with enticing prosecutrix into a house for the purpose of fondling her sexual parts. In order for prosecutrix’s companion to be an accomplice witness, she must have been “answerable to the law as a principal, an accomplice or an accessory” to that crime. See Vol. 1, Vernon’s Ann.P.C., p. xxv. In both Griffin v. State, 159 Tex.Cr.R. 142, 261 S.W.2d 838, and Young v. State, 159 Tex.Cr.R. 302, 263 S.W.2d 164, we held one minor was not a party to a crime committed upon another in his presence where it was not shown that his relationship to the crime or the partner would render him accountable therefor. Prosecutrix’s companion did no act in furtherance of enticing prosecu-trix into the house. The fact that the companion may have submitted to appellant would not make her a party to the act of appellant in enticing prosecutrix into the house.

Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Joseph Hiram CROSS, Appellant, v. STATE of Texas, Appellee.
    No. 33565.
    Court of Criminal Appeals of Texas.
    June 24, 1961.
    Arturo C. Gonzalez, Jose R. Gonzalez, Del Rio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Statutory rape is the offense, with punishment assessed at life confinement in the penitentiary.

The state’s testimony reflects that Mellie Nadine Cross was the daughter of the appellant and that at the time of the intercourse, on December 10, 1960, in Del Rio, Val Verde County, Texas, she was twelve years of age, the record also reflecting that previous acts of intercourse had occurred between them in San Antonio, Texas, and Menard, Texas.

The prosecutrix testified that the act of intercourse occurred in the house where she and her father resided, in Del Rio, Texas, between Third and Fourth Streets, and that this took place in her bed, on December 10, 1960. The prosecutrix further related that she had not told anyone about it until shortly before the trial of the case, for the reason that she “was embarrassed.”

The state also adduced testimony from the witnesses Alfred Transue and Grace McDonald showing a prior act of intercourse between the prosecutrix and her father to have been committed in Menard County.

Transue testified that he lived in Del Rio; that he went with appellant and his daughter and the McDonald family to Menard to pick pecans, in November of 1960; that appellant and the prosecutrix slept five or six feet from the tent in which he (the witness) slept; that appellant and the prosecutrix were together on the latter’s bed, which was just big enough for one person; that he could see a commotion; that appellant “was going up and down” and that he could see “the covers going up and down.” The witness further testified that appellant then got up and went to the fire and that the prosecutrix “pulled her blue jeans up and then took right off and went off to the bushes.”

The witness McDonald testified that appellant was her husband’s uncle; that she was on the trip to pick pecans at Menard, where they slept in the pecan bottom. The witness further testified that appellant’s conduct toward his daughter “the morning [she] saw him get out of her bed was very unusual for a father.”

Dr. George Hermann testified that he examined prosecutrix and found that her hymen was not intact; that the vaginal orifice was “that of a married type” and that it admitted “three fingers.”

Appellant did not testify nor offer any evidence in his behalf.

There are no formal bills of exception and no objections nor exceptions to the court’s charge.

By informal bill of exception, appellant complains of the testimony of Transue as to his (appellant’s) and the prosecutrix’s actions, near Menard—not because the previous acts were inadmissible but because the best evidence should come from a person who “actually took part in it, rather than someone who just saw it.”

The objection was overruled. We think properly so.

We hold that previous acts of intercourse may be introduced where one stands in loco parentis. Johns v. State, 155 Tex.Cr.R. 503, 236 S.W.2d 820; Armstrong v. State, Tex.Cr.App., 331 S.W.2d 331.

It is fundamental that the state may introduce evidence other than that of the prosecutrix.

Appellant objected to the testimony of Mrs. McDonald that she had seen the discharge on the underclothing of the prose-cutrix in January after the alleged rape on December 10, 1960. After all this testimony was in, appellant’s counsel objected and the court sustained the objection and instructed the jury not to consider it.

Prior and subsequent acts of intercourse may be introduced in a statutory rape case. Simons v. State, 167 Tex.Cr.R. 15, 317 S.W.2d 740.

Appellant insists that the evidence is insufficient to sustain the conviction.

Appellant’s able, court-appointed counsel is commended for his diligence, by brief and oral argument.

While the testimony of the prosecutrix is inconsistent as to some of her answers and statements and some of her testimony might not comport with human experience, we hold the evidence to be sufficient to sustain the jury’s verdict.

No attack was made upon the prosecu-trix as being an incompetent witness. The able trial judge deemed her competent, or he would have refused to allow her to testify.

The jury determined the weight and credibility of the testimony, and by their verdict found it sufficient.

For the reasons stated, the judgment is affirmed.


author: WOODLEY, Presiding Judge. BELCHER, Commissioner.

text:
    Ex parte Vesta RUTHERFORD.
    No. 33616.
    Court of Criminal Appeals of Texas.
    June 21, 1961.
    On Rehearing Oct. 11, 1961.
    Relator represented himself; no attorney for relator on rehearing.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an application for habeas corpus attacking the validity of the provision of a sentence which attempts to cumulate and cause it to begin at the expiration of another sentence against the applicant.

Applicant was sentenced to a term of 2 to 5 years on February 28, 1957, in Cause No. 9805, in the 47th District Court of Potter County. Execution of the sentence was suspended and probation was granted.

On January 22, 1959, the court, after hearing, entered its order revoking probation and ordered applicant to serve the 2 to 5 year sentence, and provided: “said sentence to commence after Defendant has completed serving the term imposed by judgment and sentence in the 99th District Court of Lubbock Co. Texas, Cause No. 6640, on July 28, 1958.”

We agree with applicant’s contention that the cumulation provision is ineffective, sentence having been pronounced February 28, 1957, and the cumulation provision added on January 22, 1959. See Ex parte Scott, Tex.Cr.App., 328 S.W.2d 190, and cases cited.

When applicant has credit for 5 years on the sentence mentioned from and after January 22, 1959, he will be entitled to discharge.

From the record furnished, it appears that applicant will not have such credit before the adjournment of the present term of this court.

Applicant’s present confinement being lawful, we have no alternative but to deny his application.

The application for habeas corpus is denied.

On Motion for Rehearing

BELCHER, Commissioner.

The relator has now shown, by certificate from the Texas Department of Corrections, that he has credit for time in excess of 5 years on the sentence of January 22, 1959. In accordance with the original opinion, he is now entitled to the relief sought.

Therefore, the motion is granted, and the relator is ordered discharged.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Charles Louis FORGEY, Appellant, v. STATE of Texas, Appellee.
    No. 33456.
    Court of Criminal Appeals of Texas.
    June 14, 1961.
    Robert H. Stinson, Jr., C. A. Droby, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., James K. Allen, First Asst. Dist. Atty., Frank W. Watts and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for State.
   WOODLEY, Presiding Judge.

The offense is rape; the punishment, death.

Appellant pleaded guilty to an indictment alleging rape by force. He offered no evidence other than the testimony of a relative to the effect that he completed the eighth grade in school and was in the Navy for about three years before he moved to Dallas, eight or nine months before the trial.

The prosecutrix, a 23 year old mother,, employed as a private secretary, got in her car which was parked on her employer’s private parking lot, about 5:15 P.M., to go home.

The appellant came up to the car, the window of which was down 4 or 5 inches. He said “Would you help me?” and handed the prosecutrix a folded note, the first line of which prosecutrix testified read “If you scream I’ll kill you.”

Officers searched appellant’s automobile after his arrest, some weeks later, and found a notebook upon a page of which were indentations or impressions of writing “that had been written on another piece of paper that had been torn out, and had left the impression of the notes on one of the pages” of the notebook which the officer testified read: “Scream and I’ll kill you. I have a gun, do as you’re told and no one gets shot.” The words “kill” and “shot” were underlined.

As the prosecutrix dropped the note appellant handed her, he opened the door, got in the car and told her he had a gun. She screamed and attempted to get out of the car and appellant grabbed her and turned the volume up on the radio.

Appellant told the prosecutrix that all he wanted was her car and he would let her out up the road. He told her that if she tried to get away again he would kill her.

The prosecutrix did not see a gun, but testified that she could see a bulge in appellant’s shirt where he had his hand.

Appellant drove the prosecutrix to a wooded area adjoining a cemetery, took her clothes off, tied her hands behind her, blindfolded her and had sexual intercourse with her without her consent while she was in that condition.

Appellant then dressed the prosecutrix, except for her hose which were left at the scene, draping her blouse over her, her hands being bound. He then drove her back to the parking lot, wiped the interior of the car so as to remove any fingerprints, cut her hands loose and ran away.

The prosecutrix drove to her home, arriving in an hysterical condition; reported the attack to her husband who called the police and took her to the hospital. The prosecutrix identified appellant'in a police line-up some time later.

Other testimony of the prosecutrix is relevant upon appellant’s second ground for reversal wherein he complains that the attorney for the state, in his closing argument, said in substance: “Can’t you realize what fear this little lady will experience if the defendant gets anything less than death, when she realizes he might come out of the penitentiary and cause harm to herself and her minor child.”

The court certifies in his qualification to this bill of exception that counsel making argument of such import stated that it was based on the threat made by appellant to the prosecutrix that if she told anyone of the occurrence he would come back and hurt her

In this connection, we quote from the testimony of the prosecutrix:

“Q. How many times did he stop and say that if he carried you back you would go to the police ? A. Two times is all.
“Q. And what did he say, if anything, that he would do if you did go to the police with what had happened? A. After he drove back to the customer’s, Sears parking lot, he said if I did go to the police that he would hurt me no matter what he had to go through to do it.
“Q. I didn’t understand you. The camera was clicking; I couldn’t hear you. .Would you repeat that? A. He said he would get back at me and hurt me no matter what he had to go through to do it.”

We see no error in this bill.

Another bill of exception complains that another counsel for the state, in his argument to the jury, referred to appellant as a “beast.”

A similar remark was held not to constitute reversible error in Jackson v. State, 118 Tex.Cr.R. 443, 42 S.W.2d 433, the evidence showing as here an atrocious crime. As here, the extreme penalty was assessed. See also Satterwhite v. State, 113 Tex.Cr. R. 659, 23 S.W.2d 356, where, as here, the court instructed the jury not to consider the argument and it was held that such instruction rendered the argument harmless and not ground for reversal.

This bill of exception as qualified by the trial court shows no reversible error.

The remaining claim for reversal relates to jury misconduct.

In his motion for new trial appellant alleged, among other grounds, that the jury while deliberating their verdict was guilty of misconduct “3. In discussing the defendant’s failure to testify in the face of the court’s written admonition in his charge not to refer to his failure to testify.”

The amended motion for new trial was not sworn to and there were no affidavits to support the above quoted allegation.

The trial court heard the testimony of Jurors Sietz and Yenny, who were called by appellant. Appellant complains that at the close of the hearing the trial judge should have permitted him to have subpoenas issued for the other 10 jurors so that the court could examine fully the question of the jury having discussed the failure of the defendant to testify presented by the testimony of the Juror Sietz

The testimony of the Juror Sietz does not show jury misconduct, and appellant does not so contend. At most, it shows the question was brought up why appellant did not testify and attention was called to the coürt’s charge and there was no further discussion of the matter.

We are unable to agree with appellant’s contention that the trial court was in error in not permitting the other 10 jurors to be subpoenaed. It is well settled that the defendant is not entitled to a “fishing expedition” into supposed jury misconduct. Prince v. State, 158 Tex.Cr.R. 320, 254 S.W.2d 1006.

We need not here determine whether or not testimony of a juror at the hearing is available to the defendant to supply a defect in his pleading of jury misconduct.

The evidence is sufficient to sustain the jury’s verdict and appellant appears to have received a fair and impartial trial on his plea of guilty.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Charles Adam CRAVEN, Appellant, v. STATE of Texas, Appellee.
    No. 33315.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1961.

      W. S. (Bill) Heatly, Jr., Paducah, Richard D. Bird, Childress (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $100.

Our able State’s Attorney confesses error because the punishment is less than that required by the statute, and we agree. Gilliland v. State, Tex.Cr.App. 342 S.W.2d 327; Malone v. State, Tex.Cr.App., 328 S.W.2d 310; and Henderson v. State, Tex.Cr.App., 318 S.W.2d 898.

The judgment is reversed and the cause is remanded.


text:
    William Mason YATES, Appellant, v. STATE of Texas, Appellee.
    No. 33501.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1961.
    R. J. Balch, Seymour, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, five days in jail and a fine of $100.

No statement of facts accompanies the record. In his brief, appellant complains of certain portions of the court’s charge. There are no objections or exceptions to the court’s charge and no requested charges found in the transcript. Article 658, Vernon’s Ann.C.C.P., requires objections and exceptions to the charge to be submitted in writing before the charge is submitted to the jury. Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356, and Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267, are authority for the holding that nothing is presented for review.

The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    Opal C. BARR et al., Appellants, v. John P. THOMPSON et al., Appellees.
    No. 15963.
    Court of Civil Appeals of Texas. Dallas.
    Aug. 4, 1961.
    Rehearing Denied Sept. 29, 1961.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., John A. Erhard and Alfred L. Ruebel, II, Dallas, for appellants.
    Locke, Purnell, Boren, Laney & Neely, Jackson, Walker, Winstead, Cantwell & Miller, Neil Williams, Walton Grayson III, Storey, Armstrong & Steger and John K. DeLay, Jr., Dallas, for appellees.
   WILLIAMS, Justice.

This appeal is from an interlocutory decree of a District Court of Dallas County, Texas that temporarily enjoined appellants from prosecuting a certain civil action previously filed and now pending in a Court of Chancery of the State of Delaware, and from proceeding any further therein except to dismiss the complaint.

The Delaware Suit

The Delaware suit was instituted on February 17, 1961 by Opal C. Barr, Rubye M. Zelder and The Sailer Company, as plaintiffs, against John P. Thompson and numerous other, individuals, trustees, partnerships, and corporations, as defendants. The defendants in the Delaware case were primarily a group of directors of Southland Corporation, who were charged in that case with having seized for their personal benefit a corporate opportunity which should have been made available to and developed on behalf of the Southland Corporation and its shareholders. Plaintiffs in the Delaware suit brought that action derivatively for the right and benefit of said corporation charging the defendants with using the personnel and other assets of the Southland Corporation for their own personal benefit in establishing a chain of approximately two hundred 7-Eleven stores in Florida and elsewhere, operating same under the name and in the same manner as 7-Eleven stores were being operated in Texas by Southland Corporation. The primary relief sought by plaintiffs in the Delaware action was the imposition of a trust on the interest of the defendants in a Florida partnership and its affiliated corporations for the benefit of Southland Corporation and its shareholders, and the recovery on behalf of the Southland Corporation and its shareholders of all damages sustained by the Corporation by virtue of the alleged seizure by the defendants of the corporate opportunity. Southland Corporation had been incorporated under the laws of Delaware but had not operated or done business in that State. The Delaware Court, perforce the Delaware Code, Title 10, Sec. 366, entered an order appointing a sequestrator to seize all shares of the capital stock of Southland Corporation standing in the name of the defendants. Such sequestration was accomplished and the Southland Corporation responded in that action by setting forth a list of the stockholders. Under the Delaware law a stockholder in the Delaware Corporation must personally appear in the Delaware Court, even though he is not a resident of Delaware, or suffer the risk of a default judgment and the forfeiture of all of his stock in the Delaware Corporation. Accordingly, the stockholders, though not actually residents of Delaware and not otherwise subject to the processes of the Delaware Courts in per-sonam, entered their appearance in the Delaware suit.

The Texas Suit

On March 3, 1961 this action was instituted in the District Court of Dallas County, Texas by John P. Thompson and 44 other plaintiffs, including all of the defendants in the Delaware action, against Opal C. Barr, Rubye M. Zelder, and The Sailer Company, being all of the plaintiffs in the Delaware action. Plaintiffs’ original petition alleges that there exists an actual controversy arising out of certain claims .being asserted against some of the parties to the suit by the defendants in this suit ,who are also claimants in a suit filed by them in Delaware. Plaintiffs then alleged facts contrary to such asserted claims and in detail set out the history, ownership, and manner of operation of the Florida partnership. The plaintiffs’ petition enumerates the defendants named in the Delaware suit and further points out that several of the Florida partners are not stockholders in the Southland Corporation and are not parties defendant in the suit brought in Delaware. Plaintiffs ask the court for a declaration under the provisions of the Texas Uniform Declaratory Judgment Act, Vernon’s Ann.Civ.St. art. 2524 — 1 et seq., that Southland had no corporate opportunity in the State of Florida when the Florida partnership was formed, or thereafter, and that formation and organization of the Florida partnership did not compete with or injure Southland or its stockholders, and that none of the officers or directors of said Southland had any obligation to Southland or its stockholders on account of the origination or operation of the Florida partnership or the companies that leased properties to the Florida partnership. In addition to the declaratory relief requested, plaintiffs’ petition points out the impossibility of the continuance of the Florida partnership, and also the Independent Ice Company, in view of the claims being asserted by defendants (plaintiffs in the Delaware action) and request the court to dissolve such partnerships and make proper distribution of the assets thereof. Relief is also sought in the form of an order confirming the ownership of the general and limited partners in and to the assets of the limited partnership known as 7-Eleven Stores, Ltd., (referred to as the Florida partnership) and also confirmation of the ownership of the corporation’s 7-Eleven, Inc., Jaytex Realty Co., Haskell Realty Corporation, Flotex Corporation and • Marmar of Texas, Inc., in and to the respective assets of said corporations.

In support of their request for equitable relief in the form of a temporary injunction, restraining the defendants (plaintiffs in the Delaware action) from further prosecuting the Delaware suit pending the trial of the Texas action, plaintiffs allege that the defendants have elected to harass the plaintiffs in the Texas suit by instituting such derivative stockholders suit in Delaware, merely as a means of asserting unfair pressures in an attempt to force the Southland Directors and the Florida partners and the other defendants to litigate and defend same in a faraway and inconvenient and more expensive forum; that none of the plaintiffs in the Delaware action reside in Delaware or is a citizen of Delaware and that none of the defendants in the Delaware suit resides in or is a citizen of Delaware with the exception of Southland Corporation which was organized under the laws of Delaware but has it principal office and place of business in Dallas, Dallas County, Texas; that many of the Texas parties own no stock in South-land and are not subj ect to the quasi in rem jurisdiction which the Delaware Court asserts through seizing whatever Southland stock is owned in the Delaware suit and therefore no effective decree could be handed down in Delaware affecting the rights of those parties not before the court; that to seek or employ the Delaware court’s jurisdiction over the shares of the Southland stock in such a manner as to compel or force the appearance of the parties based on such appearance amounts to a distortion or an inequitable attempted use of power based on sequestration; that both plaintiffs and defendants whose rights may be affected are now properly before the Texas court and subject to the jurisdiction of the Texas Court for final relief of all issues between the parties; that plaintiffs are threatened with eminent and irreparable injury by the harassing action of the defendants in their attempt to assert jurisdiction in Delaware over some of the plaintiffs in this suit through the sequestration of stock of the Southland Corporation and by the attempt to impress a trust on assets completely outside the jurisdiction of the Delaware court. Further plaintiffs allege irreparable injury by attempt to impose extraordinary and unnecessary expense on the parties thereto in defending their rights in a distant jurisdiction when all of the directors of the Southland Corporation reside in Dallas and Tarrant Counties, Texas ; by the probable necessity of defendants bringing additional suits ancillary to the Delaware action and the consequent burden and expense of defending a multiplicity of suits; by the impounding of the stock of the Southland Corporation and resulting prohibition of sale of such stock, or impounding of proceeds; and by the casting of cloud on the title of some of the plaintiffs1 ownership of properties in the Florida partnership.

Testimony in Texas Suit

Upon the application for temporary injunction the trial court heard the testimony of John P. Thompson, President of the Southland Corporation, to the effect that while Southland Corporation was originally incorporated under the laws of Delaware, its principal place of business is and has been in Dallas, Texas; all of the books and records of the corporation are kept and maintained in Dallas, Texas; all of the parties plaintiff and all of the parties defendant in the Texas suit are either residents of Dallas, or have subjected themselves voluntarily to the Texas jurisdiction; that a large number of the plaintiffs in the Texas action are not parties defendant in the Delaware suit and are not susceptible to the Delaware jurisdiction and process; that if the issues in the Delaware suit are to be litigated in Delaware rather than in Texas it would be necessary to transport a large number of persons from Texas to Delaware including witnesses, parties, and their Dallas attorneys, all at enormous expense, amounting to many thousand dollars for each trip to Delaware; that trial in Delaware would require the employment of additional counsel in Delaware at an additional expense; that the 'records already under subpoena are voluminous, including some 105 file cases' or two truck loads of records; that it would be oppressive and inconvenient in having the corporate or partnership' books/' records and other papers of the corporation' to be transported to Delaware and kept' there during an extended trial; that the' necessary attendance of the officers and directors and key employees of the South-' land Corporation during the trial in Delaware would interfere materially with the orderly day by day operation of the business in Texas; that the entire case can be litigated here in Texas where all of the witnesses are present, and where the records are present, and where there would be a minimal amount of interference of the continued conduct of the business and the company’s activities. In addition to this oral testimony the court considered the voluminous records, including the pleadings and other actions taken in the Delaware case. Following the hearing the trial court entered an order granting the temporary injunction, restraining the defendants from, further prosecuting the cause in Delaware pending the outcome of the Texas case., From that order this appeal reaches this Court.

Opinion

Appellants present four points of error: (1) the error of the trial court in issuing a temporary injunction restraining the ap- - pellants from further prosecuting their action theretofore filed in the State of Delaware; (2) the error of the trial court in sustaining the objection of the appellants to the evidence which allegedly ’ proved the charges of appellants against certain of the appellees with having been. guilty of breach of fiduciary relationship with the Southland Corporation; (3) the. error of the trial court in refusing to dismiss the suit; and (4) error of the trial court in permitting appellees to offer in .evi-, dence over appellants’ objection the pleadings in this case.

At the outset of this opinion we desiré to reiterate and emphasize that the trial in the District Court was confined solely to the issue of the application for equitable relief in the form of a temporary injunction. This was not a trial of the case on the merits. The trial judge was emphatic in his decision not to hear testimony relating to merits of this case but to confine his decision solely to the question of the propriety of granting equitable relief as prayed for by appellees. Accordingly, there is entirely no merit in appellants’ second point relating to the refusal of the trial judge to permit testimony going to the merits of the case. In an action of this kind it is neither necessary nor appropriate to try the case fully. It is only necessary for the proponents of the application for equitable relief to show a reasonable necessity therefor. The testimony sought to be introduced by appellants went to the merits of the case and was not necessary to enable the trial judge, as chancellor, to adjudicate the equitable questions involved. Appellants’ second point is overruled.

Appellants’ third point complaining of the action of the trial court in refusing to dismiss the suit is also overruled. Appellants, in oral argument, admit that there is no merit to this point on this appeal. Appellants’ fourth point is also overruled as being without merit.

‘ We now come to the only real point in this case. The question clearly and squarely presented here is whether the trial court, sitting as chancellor, abused his discretion in granting the temporary injunction. The rules governing appellate review from the granting of an interlocutory order are different from those having to do with an appeal from a final judgment. 24-A Tex.Jur. “Injunctions” § 265. Our Supreme Court has clearly patterned the way for us to follow in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462, wherein it said:

“The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.”

See also Transport Co. of Texas v. Robertson Transport, 152 Tex. 551, 261 S.W.2d 549.

The rule is well settled, in cases of this kind, that the granting of an injunction will depend on specific circumstances, as to whether equitable considerations in favor of granting it overbalance the legal right of the defendant to bring his action in the sister state. 6 A.L.R.2d 900.

It has been established, beyond question, that the power of a court of equity, where it has jurisdiction of the cause and of the parties to enjoin a person from beginning or prosecuting an action in another state is not denied. It is to be observed that the decree is not against the court of the other state, but in personam against the person enjoined. 24 — A Tex. Jur. “Injunctions” § 76. The rule was settled by the United States Supreme Court in Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538 and by the Supreme Court of Texas in Moton v. Hull, 77 Tex. 80, 13 S.W. 849, 8 L.R.A. 722. The rule was reiterated and confirmed by the Texas Supreme Court as late as March 1961 in the case of University of Texas et al. v. Morris, Tex., 344 S.W.2d 426, 428 where the Court said:

“A district court having jurisdiction of the parties and the subject matter may enjoin a party from prosecuting a cause of action in another court when such relief is necessary to prevent a multiplicity of suits, or avoid vexatious litigation, or prohibit the use of the judicial processes for purposes of harassment. (Citing authorities.)”

Appellants in their brief, admit this to be the law and concede that the only real question presented by this appeal is whether the trial court abused his discretion in granting the temporary injunction.

In our consideration of this question we are keenly aware of the well-established rule which is succinctly set forth in 43 C.J.S. Injunctions § 49, p. 499:

“A court of one state or country, which has acquired jurisdiction of the parties, has pow;er on proper cause shown, as discussed in Courts § 554, to enjoin them from proceeding with an action in another state or country, particularly where such parties are citizens or residents of the State, or with respect to a controversy between the same parties of which it obtained jurisdiction prior to the foreign court; but this power should be exercised sparingly, and not unless a clear equity is presented requiring the interposition of the court to prevent manifest wrong and injustice.”

This same rule has been followed by Texas Courts for many years. 24-A Tex. Jur. “Injunctions” § 76, pp. 136-137 and cases cited.

So we are faced squarely with the question of whether, under this record, sufficient showing is made requiring the interposition of the Texas Court of Equity to prevent that which equity abhors. Having given careful consideration to the question we are of the opinion that the record in this case does not reveal an abuse of discretion and that the chancellor was correct in the issuance of the temporary writ.

In arriving at this answer, and while it is of great importance, we are not motivated entirely by the question of convenience or the rationale of the doctrine of forum non conveniens. The doctrine of forum non conveniens has never been offi-daily declared to be effective in our state courts. It is applicable in Federal cases-28 U.S.C.A. § 1404(a). In addition to consideration of the rationale of forum no® conveniens, we are motivated, in large measure, by the overall facts of this case, as well as the facts in the Delaware case, which poipt with clarity to the fact that the Texas Court’s action by injunction will prevent harassment and a multiplicity of suits, all contrary to the orderly administration of justice.

Considering first the question of convenience, we are confronted with the unim-peached testimony of John P. Thompson, relating the tremendous amount of expense, cost, and loss of time, which would be incident to the trial of this case in Delaware. This testimony, standing alone, finds support in many authorities throughout the United States for the granting of an equitable relief in the form of injunction. Wabash Ry. Co. v. Peterson, 187 Iowa 1331, 175 N.W. 523; Miller v. Gittings, 85 Md. 601, 37 A. 372; N. Y. C. & St. Louis Ry. Co. v. Matzinger, 136 Ohio St. 271, 25 N.E.2d 349; O’Loughlin v. O’Loughlin, 6 N.J. 170, 78 A.2d 64; Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So.2d 467; Bankers Life Co. v. Loring, 217 Iowa 534, 250 N.W. 8; and cases cited in comprehensive note found in 6 A.L.R.2d 896.

In answer to appellee’s contention concerning convenience of trial, appellants rely upon such cases as Brand v. Eubank, Tex.Civ.App., 81 S.W.2d 1023; Wade v. Crump, Tex.Civ.App., 173 S.W. 538; Pavey v. McFarland, Tex.Civ.App., 234 S.W. 591; William Cameron & Co. v. Abbott, Tex.Civ.App., 258 S.W. 562; Richardson v. Kent, Tex.Civ.App., 21 S.W.2d 72 and Garrett v. Phillips Petroleum Co., Tex.Civ.App., 218 S.W.2d 238. However, a close examination of these authorities reveal different facts and circumstances which make them easily distinguishable from the facts in the instant appeal. In these cases the facts reveal the identity of the parties as being the same in each case. Moreover, in each of these cases the issues are virtually the same in both jurisdiction and in most instances the cases involved forums which were adjoining across the states lines and therefore the question of cost and expense was not paramount.

While the question of convenience of trial is a paramount question presented here, a'more serious and important question is presented by this record. Equity looks with favor upon a complete disposition of controversies in one action rather than in multiple suit's. Equity abhors a multiplicity of actions. As so aptly stated in 22 Tex.Jur.2d § 40, pp. 583-584, equity looks through superficial fictions and acts on the facts, giving them controlling effect. Equity looks to the substance and not the shadow, to the spirit and not the letter. It seeks justice rather than technicality, truth rather than evasion, common sense rather than quibbling. Equity abhors technical rules and restrictions. A court of equity will depart from rigid rules of law whenever it is necessary to accomplish the ends of justice. When we give applications to these well-recognized maxims of equity to the facts in the case here presented no difficulty i's encountered in arriving at the conclusion that the chancellor below acted correctly.

The vital fact presented by this record is that all parties and all issues are before the Texas Court for final adjudication whereas all parties and all issues are ncd before the Delazvare court for final adjudication. This fact, in our opinion, together with the question of convenience, manifestly outweighs the consideration of right of a party to select his forum. The Delaware suit was filed by residents of Texas, claiming that the assets of the Florida partnership and of certain relative realty corporations which lease store buildings and equipment to the partnership, are held in constructive trust for the South-land Corporation. They ask the Delaware court to take away from the assets of the Florida partnership and the relative corporations from the present owners and to vest the title to such assets in Southland. But all these assets, buildings and equipment are located in Florida. The Delaware court has no jurisdiction in rem as applied to these assets, and no control over the assets, as such. Nor does the Delaware court have jurisdiction over all individuals and companies who own the assets. There are some twenty persons and other entities owning interest in the Florida partnership who do not live in Delaware or have any property in Delaware subject to attachment or own any stock of Southland. Furthermore, the five corporations which lease the grocery store buildings and the equipment to the Florida partnership have no assets in Delaware and own no stock in South-land which could be seized by a Delaware court. There is no manner by which the Delaware court could obtain jurisdiction over the named Florida partners and the relative real estate corporations. Accordingly, the Delaware court could not enter any effective decree as applied to these Florida partners and the relative Florida real estate corporations which have not appeared in the Delaware action and are not subject to the jurisdiction of the Delaware court. The Texas residents who filed the Delaware suit could not accomplish in Delaware what they are trying to accomplish without recourse to other suits in Florida and Texas courts, or both. A multiplicity of suits would 'naturally follow.

On the other hand, all of the Florida partners and all of the corporations are parties to the Texas suit and subject to the jurisdiction of the Texas court which can enter a complete and effective decree which the Delaware court cannot. Applying pure reason and common sense, as equity will do, we find no abuse of the trial court’s discretion when it is exercised in a manner that will permit an orderly and effective disposition of the controversy as opposed to piecemeal disposition in multiple suits which may have conflicting results.

While not necessary to the disposition of this appeal, it is interesting to note that subsequent to the entry of the order in the Texas court, the chancellor in the Delaware court, acting upon application by an in-tervenor to set the Delaware case down for trial, denied such application and, in effect, agrees with our conclusion concerning the availability of the parties and witnesses before the Texas court in order to effect a final judgment. See the Delaware chancellor’s statement in the footnote.

Conclusion

We have given careful consideration to all of appellants’ arguments presented under their points and find that they are without merit and should be overruled. For the reasons stated, we hold that the orderly administration of justice dictates that the Texas case be adjudicated with the end result that all rights between all parties may be decided by one decree, thereby avoiding a multiplicity of actions which is eminent if the Delaware action is allowed to proceed. We further hold that the equities of convenience of parties is clearly apparent in favor of the Texas jurisdiction.

In rendering this decision we wish to make it perfectly clear that we are in no manner attempting to interfere with, or take arbitrary action against, the Delaware court, as such. As revealed by all the authorities on this subject, this action is in personam against the parties subject to the Texas jurisdiction and is not to be considered an action in rem directed against the Delaware court. It is only due to the particular facts and circumstances presented by this record that we apply the well-recognized doctrines of equity which lead to the results herein announced.

The judgment of the trial court is affirmed.

      .
      Court of Chancery
      of the
      State of Delaware
      Collins J. Seitz Court House
      Chancellor Wilmington, Delaware.
      May 23, 1961 Richard F. Coroon, Esquire Berl, Potter & Anderson Aaron Finger, Esquire,
      Richard Layton & Finger Wilmington 1, Delaware.
      Re: Opal C. Bari’, et al. v.
      John P. Thompson, et al.
      Civil Action No. 1412.
      Gentlemen:
      This derivation action is being pressed by an intervening plaintiff who is not subject to the injunctive power of the Texas trial court, which enjoined the original plaintiffs from proceeding here. Plaintiff intervenor has applied for a trial date.
      Defendants’ application to stay the fixing of a trial date posos a troublesome problem. I say this primarily because the Texas trial court has in effect permitted defendants to select the forum in which they will be sued. Indeed, they have thereby been permitted to substitute a jury for a non-jury action. The Texas court has done this by preventing Texas citizens from continuing the prosecution of this class derivative action which was filed before the Texas action.
      I could better understand their action if the Texas suit liad been first in time. However, my concern does not dispose of the matter.
      I do not consider persuasive any single argument advanced by defendants. However, tlio cumulative effect of several of them is such that I will reluctantly exercise my discretion to stay the fixing of a trial date here. The principal facts relied upon are as follows:
      1. The Texas case was fixed for .trial before any application was made here.
      2. Now all of the parties involved in the transactions under attack are subject to the jurisdiction of this court. They are before the Texas court.
      3. The principal and numerous witnesses are in Texas and available to testify there at a substantial saving in expenses as compared with a trial in Delaware.
      I should add that the apparent magnitude of this case is such that it could not be tried before the time fixed for the Texas trial.
      I assume that the Texas decision will be in such form that it can be ascertained whether the ease was decided on the merits. This may be important to the future of the case.
      Defendants’ motion to stay will be granted. An appropriate order may be presented.
      Very truly yours,
      /s/ Collins J. Seitz Chancellor.
      CJS/mb
      cc: Register in Chancery.


author: LANGDON, Chief Justice.

text:
    W. J. BARKER, Appellant, v. LONE STAR BREWING COMPANY, Appellee.
    No. 5482.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1961.
    •Warren Burnett, Odessa, for appellant.
    Matthews, Nowlin, MacFarlane & Barrett, Patrick H. Swearingen, Jr., San Antonio, Maurice R. Bullock, Fort Stockton, for appellee.
   LANGDON, Chief Justice.

This is a plea of privilege case. Suit was brought in the District Court of Pecos County by appellant, W. J. Barker, doing business as Barker Distributing Company, against appellee, Lone Star Brewing Company, a corporation, domiciled in Bexar County. Plaintiff Barker alleged that defendant Brewing Company canceled a written agreement under which plaintiff Barker purchased beer from defendant for distribution in Pecos and other designated counties. Barker contends that defendant “wrongfully” and “arbitrarily and capriciously” canceled the agreement, and that he suffered damages thereby in the amount of $100,000. Defendant Brewing Company filed its plea of privilege to be sued in Bexar County, the county of its residence; and, subject to its plea of privilege, filed its answer, which is not material to this appeal.

Plaintiff Barker controverted defendant’s plea of privilege and adopted therein the allegations contained in his original petition. Plaintiff did not deny that defendant’s residence was in Bexar County, but contends that this suit can be maintained in Pecos County under the exceptions set out in subdivisions 5 and 23, of Article 1995, Vernon’s Annotated Texas Civil Statutes.

Following a hearing, the trial court sustained defendant Brewing Company’s plea of privilege and ordered the cause transferred to the district court of Bexar County. From such order appellant has perfected this appeal.

Appellant has predicated this appeal upon two points, by which it is asserted that the trial court erred in sustaining defendant’s plea of privilege: (1) because the defendant contracted in writing to perform an obligation in the county of suit, and plaintiff’s suit is upon that obligation; and, (2), because the defendant is a private corporation, and part of plaintiff’s cause of action arose in Pecos County.

Appellant bases his suit upon a written agreement dated November 2, 1950, set out as follows:

“Lone Star Brewing Company
542 Simpson Street ....
P. O. Box 2060 Telephone Fannin 8301
“San Antonio 6, Texas
“Agreement
“November 2, 1950
“This will evidence and constitute ■our sole agreement with respect to your appointment as a distributor of Lone Star Beer in the counties of Reagan, Upton, Crane, Brewster, Presidio, Pecos in the State of Texas. We agree to furnish you, during the continuation •of this distributorship, the amount of beer required to serve said area, subject to the output of our plant being sufficient to serve you and all other distributors, the Brewing Company reserving the right to apportion output between distributors when unable to supply the full requirements of all.
“It is understood that you are at all times to be properly licensed and at all times maintain warehouse and office facilities, trucking equipment and sales personnel suitable to and commensurate with the Market you are to serve and satisfactory to Lone Star Brewing Company. It is also understood that you are to cooperate at all times in a reasonable amount of special advertising as and when requested by the Brewing Company.
“Prices of the produce shall conform to the prevailing prices charged from time to time to all other distributors of this product in the State of Texas. All shipments of products and the billing thereof shall be f. o. b. San Antonio, Texas, and all bills will be payable at San Antonio, Texas, empties to be returned to Brewery by distributors.
“It is understood that the Brewing Company shall have no control whatsoever over the mode and manner of transacting business by the distributor, nor in the employment of or discharging of distributor’s employees, nor in any other particular, but it is specifically agreed that the Brewing Company shall be entitled to discontinue and cancel your distributorship at any time and for any cause deemed adequate by it.
“In the event you use the name ‘Lone Star’ in connection with your business as distributor of said beer, it is understood that you will immediately discontinue the use of it upon the termination of the distributorship.
“You will indicate your acceptance as provided on these forms and return both copies. One copy will be returned subsequently for your files after being properly executed and recorded by this office.
“Yours very truly,
“Lone Star Brewing Company
“By s/ Harry Jersig President
“Accepted and Agreed:
“Barker Distributing Company “By W. J. Barker /s”

After careful examination of entire contract, we have concluded that the contract itself imposes no obligation upon defendant Brewing Company, appellee herein, to do or perform any act or thing in Pecos County. All obligations imposed upon defendant, under the terms of the agreement, are performable in Bexar County. The agreement imposed no obligation upon plaintiff Barker to continue the distributorship for any particular period of time, and presumably was subject to termination by him at any time. With respect to defendant’s right to terminate the agreement, the contract provides: “ * * * it is specifi-cially agreed that the Brewing Company shall be entitled to discontinue and cancel your distributorship at any time and for any cause deemed adequate by it.”

On April 11, 1960, after the contract had been in effect for nine and one-half years, defendant Brewing Company advised plaintiff by telegram as follows: “For reasons deemed adequate by Lone Star Brewing Company your distributorship agreement dated November 2, 1950 is hereby discontinued and cancelled * *

If venue is to be maintained in Pecos County under the exception provided by subdivision 5 of the Venue Statute (Article 1995), the burden is upon plaintiff to plead and prove a contract in writing wherein the defendant contracted to perform an obligation in Pecos County, or at a definite place therein, by such writing.

The only written contract in evidence is the contract of November 2, 1950, offered and admitted in evidence as plaintiff’s Exhibit No. 1. Such contract contains no express provision obligating the defendant to perform an obligation anywhere but in Bexar County, the domicile of such defendant. Appellant contends, however, that the writing imposed an implied obligation upon appellee Brewing Company to recognise appellant as its distributor in Pecos and the other designated counties, and that such obligation to recognize the distributorship could only be performed at the site of the distributorship. While we find such argument ingenious, we believe it has no application to the facts of this case. Appellant has cited two cases in support of such argument. In the first case, Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698, 699, the contract was an oil and gas lease. The obligation sued upon was that of drilling offset wells. The court held, although the writing did not set out a promise to drill offset wells, that the contract implied the obligation, and that the place of performance was expressly named in the contract, “ * * * towit, the parcel of land in Jones County in respect to which the parties * * * were contracting.” The second case cited is that of McKenzie Construction Co. v. Pittman, Tex.Civ.App., 288 S.W.2d 527, 532, (error dismissed). There, Mrs. Clara Driscoll had engaged the services of a contractor to build, and an architect to supervise, the building of a hotel in Corpus Christi. After the hotel was completed and accepted and Mrs. Dris-coll had passed away, evidence of faulty workmanship in the construction appeared. In the resulting suits brought by the executors of Mrs. Driscoll’s estate against both the contractor and the architect, a plea of privilege was filed by the architect, Wyatt C. Hedrick, and was sustained by the trial court. The Court of Civil Appeals, in reversing the trial court’s order sustaining the plea of privilege, held that the architect was employed by Mrs. Driscoll, among other things, “to supervise and inspect the construction of this hotel and office building.” Such obligation could be performed only at the site of the building, and the building is expressly stated to be in Corpus Christi, Nueces County, Texas.

In the Petroleum Producers case, the obligation to drill offset wells was implied as a matter of law from the language of the oil and gas lease. In the McKenzie Construction case, the contract itself expressly provided that the architect would “supervise” the work. The obligation to “inspect” was necessarily implied from the express obligation to supervise. It follows that the implied obligation to inspect the work could be performed only at the site of the construction.

We think the cases discussed above have no application to the facts of the case now before us. Every written contract creates or recognizes the existence of a status or relationship between the parties; i. e.: manufacturer-distributor, owner-builder, owner-architect, buyer-seller, etc. The mere recognition of a particular status, even if expressly provided in the contract, might, in most cases, be accomplished as well from one place as from another. Here, we believe, it involved nothing more than an acknowledgment on the part of the appellee that appellant would be its distributor in the designated counties during the continuance of the contract. Under subdivision 5 of Article 1995, supra, it is immaterial that some obligations imposed by a written contract are required to be performed by one, or the other, party, in a particular county; the material and controlling fact being that the particular obligation sought to be enforced by the suit is required, by the contract to be performed in a particular county, expressly named. Southwestern Peanut Growers Ass’n v. Kendrick, Tex. Civ.App., 183 S.W.2d 1019. Appellant’s Point No. 1 is accordingly overruled.

We have carefully considered appellant’s Point No. 2, based on the contention that venue may be maintained in Pecos County under Exception 23 of the general Venue Statute. Appellant had the burden of pleading and proving, on the hearing of the plea of privilege, all of the elements essential to his cause of action. The contract itself specified the manner in which the contract might be terminated. We believe the language of such contract to be clear and unambiguous. It was terminated by a telegram sent to appellant from the company offices in San Antonio on April 11, 1960. The telegram, containing language almost identical to that used in the contract, was admittedly received by appellant and was understood by him to constitute a termination of his distributorship.

Under plain terms and express provisions of this contract, a stipulation for its termination was made. There are no pleadings that such stipulation was inserted in the contract by fraud, accident or mistake, and it must be assumed that the results and consequences of such provision must have been fully foreseen and understood by the parties thereto at the time it was made. Appellant’s Point No. 2 is overruled.

Finding no error, the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    L. J. (El J.) WARE, Appellant, v. TEXBORO CABINET CORPORATION, Appellee.
    No. 7338.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 26, 1961.
    Rehearing Denied Oct. 17, 1961.

      J. Carroll McConnell, Fort Worth, for appellant.
    Ungerman, Hill, Ungerman & Angrist, Dallas, for appellee.
   FANNING, Justice.

Texboro Cabinet Corporation, as plaintiff, in the County Court at Law, No. 1, of Dallas County, Texas, sued L. J. Ware, as defendant, upon a sworn account in the amount of $408 and also sued for a reasonable attorney’s fee. Defendant’s plea of privilege was stricken on motion of plaintiff and summary judgment for the amount of the account ($408) and an attorney fee of $175, aggregating the sum of $583, was rendered by the trial court in favor of plaintiff against defendant. Defendant has appealed.

Appellant contends, among other things, that the trial court erred in not sustaining his plea of privilege and erred in rendering a summary judgment against him. Appellee counters contending that the plea of privilege was waived and that the trial court did not err in striking the plea on motion of appellee, and further contends that the trial court correctly rendered the summary judgment.

The suit was filed July 6, 1960, and defendant L. J. Ware was duly served with citation on August 6, 1960. On August 15, 1960, defendant L. J. Ware, through his attorney of record, filed in the cause an instrument denominated “Defendant’s Original Answer”, which, (omitting caption and attorney’s signature) reads as follows:

“Now Comes L. J. Ware, the Defendant, in the above numbered and entitled cause and specially excepts to Plaintiff’s Petition in said cause, and says same is insufficient and that same should be dismissed and will be necessary to file a Plea of Privilege.
For Further Answer the Defendant denies each and all of the allegations in said Petition.”

On August 31, 1960, plaintiff filed a motion for summary judgment which the trial court set for hearing for September 16, 1960. On September 16, 1960, defendant, stating that his name was E. J. Ware, filed a plea of privilege in statutory form to be sued in Palo Pinto County, Texas, the county of his residence. (The plea was. not controverted by plaintiff but plaintiff instead later filed a motion to strike the plea of privilege). Also on September 16, 1960, defendant, stating that his name was El J. Ware, filed another answer, insisting on his plea of privilege, denying the account and contending that he was entitled to at least a $250 offset for a drill. While this answer was sworn to it appears to us that the averments in the main are couched in rather general terms and constitute in some instances conclusions of the pleader. For a fuller description of this pleading we respectfully refer to the transcript. Also on Sept. 30, 1960, defendant filed a motion that his plea of privilege be sustained.

On October 4, 1960, plaintiff filed a request for admissions under Rule 169, Texas Rules of Civil Procedure, which was properly and timely served upon the attorney of record for defendant. This request for admissions was not answered by defendant within the time provided by Rule 169, T.R.C.P.

On October 28, 1960 plaintiff filed an affidavit in support of its motion for summary judgment, which affidavit avers to the effect that the $408 account was just, correct, due and owing by defendant to plaintiff and that “said account is not entitled to any offsets, credits or allowances”. Defendant did not respond to this affidavit by filing any counter-affidavit or affidavits denying said affidavit filed by plaintiff. Nor did defendant answer the request for admissions, the truth of which (if admitted) would amply make out a case for plaintiff against defendant. Defendant did not file any depositions or come forward with any character of evidentiary matter to support his pleadings in defense and in his claim for an offset to the account.

On October 31, 1960, the trial court granted plaintiff’s motion to strike the plea of privilege, granted plaintiff’s motion to deem the requests for admissions as admitted, granted plaintiff’s motion for summary judgment for the $408 account and allowed the sum of $175 as a reasonable attorney’s fee, and rendered judgment in favor of plaintiff and against defendant in the total sum of $583 and court costs with the judgment bearing 6% interest from date of judgment.

We hold that defendant by filing his above quoted original answer of August 15, 1960 waived his plea of privilege thereafter filed on September 16, 1960 and that the trial court did not err in striking the plea of privilege. In this connection see the following authorities: Rules 84 and 85, T.R.C.P.; Foster v. H. O. Wooten Grocer Company, Tex.Civ.App., 273 S.W. 2d 461; Collins v. Land, Tex.Civ.App., 213 S.W .2d 265; Kline v. Weaver, Tex.Civ.App., 348 S.W.2d 379; Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119. See also Texas Digest Complete, Vol. 37A, Venue 17.

We also hold that the trial court correctly sustained the motion of plaintiff for summary judgment on the account. Plaintiff’s request for admissions (which made out a case if admitted) were not answered or denied and plaintiff’s affidavit filed in connection with the motion for summary judgment (which also made out a case for plaintiff if not denied) was not denied or countered by any affidavit from defendant, or by any deposition. Nor was any other evidentiary matter brought forward by defendant in the hearing on the motion for summary judgment. See the following authorities : Kilsby v. Aero-Test Equipment Co., Tex.Civ.App., 301 S.W.2d 703 err. ref. N.R.E.; Pure Oil Co. v. Fowler, Tex.Civ.App., 302 S.W.2d 461, wr. ref, N.R.E.; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W .2d 832, wr. ref.; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Kuper v. Schmidt, Tex., 338 S.W.2d 948; LeMond & Kreager, The Scope of Pleading in Summary Judgment, 30 Tex.Law Review, pp. 613-622. Also in this connection see McDonald, Texas Civil Practice, Vol. 4, Cumulative Supplement, p. 43, wherein it is stated:

“ * * * Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere pleading denial, even a sworn one, in order to overcome the force of the motion. * * * ”

Appellant’s other points and contentions have been carefully considered, are deemed as not presenting error under the record in this case and are overruled.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Ann Elaine PIRRUNG et vir, Appellant, v. T. & N. O. RAILROAD CO., a Texas Corporation, et al., Appellees.
    No. 13797.
    Court of Civil Appeals of Texas. Houston.
    Sept. 21, 1961.
    Red, Kemp, Paul & Wyckoff, Kenneth A. Paul, Houston, for appellant.
    B. D. McKinney, Houston, for appellees, Texas and N. O. R. Co., O. M. Sowell and H. N. Chambers, Baker, Botts, Andrews & Shepherd, Houston, of counsel.
    Harman Parrott, Houston, for appellee, George Kennedy, McGregor, Sewell & Ju-nell, Houston, of counsel.
   COLEMAN, Justice.

This is a suit to recover the damage to appellant’s automobile caused by a collision with a passenger train. The case was tried to a jury and the trial court entered judgment on the verdict that plaintiff take nothing as against appellees, defendants in the trial court.

At the conclusion of the testimony on a Friday there was a discussion between the court and counsel concerning the time to he allowed the parties for argument, and the court stated that he would allow thirty minutes to each of the two attorneys for the defendants and thirty minutes to the attorney for the plaintiff. The attorney for the plaintiff did not at that time protest or request additional time. The court then announced the time schedule to the jury. However, on the following Monday, when the trial resumed, plaintiff’s attorney orally moved that he be granted one hour for argument on the ground that his time for argument should equal that given both attorneys for the defendants. This motion was denied by the court.

The trial judge has wide discretion in fixing the time to be allowed litigants for argument, but this discretion can be abused. The trial judge should be careful to allow counsel sufficient time to properly present his case and to discuss all issues submitted to the jury. Aultman et al. v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596; Mitchell v. Robinson, Tex.Civ.App., 162 S.W. 443, err. ref.; May v. Hahn, 22 Tex.Civ.App. 365, 54 S.W. 416.

The only objection to this action of the court in limiting the time for argument that is set out in the bill of exceptions is that plaintiff was not given as much time as the combined time given to the attorneys for the defendants. There is nothing in the bill of exceptions indicating that thirty minutes was not sufficient time for plaintiff to properly present his case, and to discuss all of the controverted issues. Neither of the attorneys for the defendants indicated to the trial court that the time allotted them was insufficient.

The time to be allowed litigants for argument is a matter within the trial court’s judicial discretion. Such discretion will not be reviewed in the absence of an affirmative showing of injury to the complaining party. T. & N. O. R. Co. v. Ivey, Tex.Civ.App., 283 S.W.2d 78; Hargrove v. Texas Emp. Ins. Ass’n, Tex.Civ.App., 332 S.W. 2d 121; Gowan v. Reimers, Tex.Civ.App., 220 S.W.2d 331. Even though we might feel that under the circumstances we would have granted plaintiff more time for argument, we cannot say that the action of the trial judge was arbitrary or unreasonable or constituted an abuse of discretion. Smock v. Fischel, Tex.Civ.App., 207 S.W.2d 888, affirmed in part and reversed in part 146 Tex. 397, 207 S.W.2d 891; Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290.

During the first day of the trial, while the plaintiff was being cross-examined, a portion of her deposition was read to the witness and then she was asked:

“Q. Well, when you started ahead across the tracks, you don’t know whether or not the truck was blocking your lane at that time or not ?
“Mr. Red: We object to arguing with the witness, she has already testified to that.
“The Court: Overrule the objection.
“Mr. Red: May I complete my objection?
“The Court: You may complete your objection, but not coach the witness. Take the Jury out.”

No objection to the court’s remark appears in the record at this point. However, when the jury was excused for the day, plaintiff moved for a mistrial and the court denied the motion. Plaintiff failed to request that the jury be instructed to disregard the remark or that any explanatory instruction be given. Plaintiff contends that the remark of the court reflected upon the integrity of appellant’s counsel and the plaintiff, upon the credibility of the witness, and was a comment on the evidence. These grounds for objection or reasons for granting the motion were first raised in plaintiff’s motion for new trial.

We approve this statement appearing in Texas Jurisprudence, 41-B, Sec. 54, p. 75:

“A trial judge should refrain from making unnecessary comments which might tend to prejudice a litigant. He should be careful not to say or do anything in the presence of the jury which is calculated to influence them in reaching a verdict. And the judge should not charge upon, or make remarks in the presence and hearing of the jurors which might reasonably be construed as a comment upon the weight of the evidence. As will be subsequently seen, a judge may not comment upon the credibility of witnesses or make remarks calculated to reflect upon an attorney to the prejudice of his client’s case. But it is not improper to make a remark in the nature of a ruling upon an objection, in stating the reasons for a ruling, or, when objections to testimony are being persistently made, in informing counsel what is or is not proper testimony upon an issue.”

In this instance, however, we do not feel that the remark of the court is subject to the interpretation placed on it by appellant’s counsel. On at least two previous occasions in connection with obj ections he had stated the previous testimony of the witness. The court was merely admonishing him to make objections without repeating the testimony. The court’s choice of the words “coach the witness” in making the admonition was unfortunate, but he immediately made known to counsel, out of the presence of the jury, his meaning and, on proper request, no doubt, would have explained the matter to the jury. Such an explanation could have removed any harmful effect a misinterpretation of the court’s meaning might have had on the minds of the jurors. The points relating to this remark do not show reversible error. First State Bank of Blackwell v. Knox, Tex.Civ.App., 173 S.W. 894; Davenport v. Taylor County Tuberculosis Ass’n, Tex.Civ.App., 72 S.W.2d 407; Southland Greyhound Lines, Inc. v. Matthews, Tex.Civ.App., 74 S.W.2d 713, err. dism.; Holden v. Gibbons, Tex.Civ.App., 101 S.W.2d 837, writ dism.; City of Austin v. Cook, Tex.Civ.App., 343 S.W.2d 545; Comment, 20 Texas Law Review, pp. 83 et seq.

Appellant has briefed certain points relating to the admission of evidence over his objection. We find it unnecessary to determine whether or not the questions were vulnerable to the objections levied against them for the reason that from a consideration of the entire record we are clearly of the opinion that no harm resulted to plaintiff and that the admission of the testimony was not calculated to cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

The judgment of the Trial Court is affirmed.


author: CHAPMAN, Justice.

text:
    FIRST NATIONAL BANK OF LUBBOCK v. Myrtle JENKINS et al.
    No. 7078.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 18, 1961.

      Crenshaw, Dupree & Milam, Lubbock, W. B. West III, U. S. Atty., and Robert S. Travis, Asst. U. S. Atty., Fort Worth, Abbott M. Sellers, Acting Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott and John A. Bailey, Washington, D. C., for appellants.
    Howard & Tucker, Key, Carr, Carr & Clark, Evans, Pharr, Trout & Jones, A. W. Salyars, Edward W. Napier, James F. Moore, Hugh Anderson, O’Connor & Bris-ter and Treadaway & Blumrosen, Lubbock, for appellees.
   CHAPMAN, Justice.

This suit was instituted by First National Bank of Lubbock, hereafter called Bank, to recover upon a note held by it and to foreclose a mechanic’s and materialmen’s lien contract made simultaneously with the note to secure its payment. The lien was on a residence in Lubbock and was executed by J. T. Jenkins and wife, Myrtle Jenkins, as owners of the property. J. T. Jenkins was deceased at the time of the trial so the •defendants are Myrtle Jenkins, the heirs and legal representatives of the estate of J. T. Jenkins, deceased; the United States of America, claiming under a notice of tax lien filed; and various suppliers of labor and materials claiming, by their cross-actions, liens under affidavits filed by them.

The questions for decision by the Court below were the amounts to be awarded to the various claimants and the priority of their respective liens asserted. The case was tried upon an agreed stipulation of facts. Various money judgments were awarded with foreclosure of all liens asserted. The proceeds of the foreclosure sale were ordered prorated between the Bank and the various affidavit claimants in proportion to the respective amounts of their judgments up to the face amount of the note, plus interest and attorney’s fees, and the balance of the proceeds above the amount represented by the note was ordered paid to the United States of America up to the amount of the tax lien claimed by it. In other words, the liens of Bank and the various affidavit claimants were held to be of equal standing and superior to the lien of the United States of America. Bank and the United States of America have appealed from the court’s judgment. The former asserts its lien is entitled to priority over all claimants. The latter admits the priority of Bank’s lien but urges the priority of its lien over all the affidavit claimants.

On August 4, 1958, J. T. Jenkins and wife, Myrtle Jenkins, entered into a contract with W. M. Averitt for the construction of a residence upon property located in Ranch Acres, an addition to the city of Lubbock. The contract was the usual form of a mechanic’s and materialmen’s lien contract in use in Texas and was properly signed and acknowledged by both Mr. and Mrs. Jenkins before any work was done or materials furnished for the construction. The lien provided for in the contract secured payment of a note for $18,000 executed simultaneously therewith payable to W. M. Averitt. The contract was filed for record on August 5, 1958, and duly recorded the next day. The note was transferred by Averitt to appellant bank on August 4, 1958, by endorsement and delivery and by written transfer.

At the time the subject contract was made it was, by stipulation of the parties thereto, the intention of the Jenkins to occupy the residence to be built on the unimproved lot described therein as their homestead and they moved into the house on September 9, 1958. J. T. Jenkins died three days later and the residence was completed on about November 1, 1958.

“By arrangements with the said W. M. Averitt, said J. T. Jenkins, at all pertinent times up to the date of his death, supervised the construction of the improvements contemplated by the contract * * * procured the materials and the labor for such construction, and paid for such labor and materials as were paid for from the funds advanced for that purpose by First National Bank at Lubbock * * Bank paid over a total of $14,000 plus certain insurance premiums.

The various affidavits of the suppliers of labor and materials were filed during a period from about October 8, 1958, through December 11, 1958, except that of J. Leon Henry, which was filed on January 19, 1959.

We hold that the contract lien held by Bank was entitled to priority over the lien of all other claimants. The $18,000 note executed by Mr. and Mrs. Jenkins to Mr. Averitt for the full contract price of the residence shows to be a negotiable instrument in customary form and there is no probative evidence to the contrary. Immediately upon its transfer to Bank the indebtedness of Jenkins to Averitt ceased. They not being indebted to him any further the appellees suppliers could fix no lien against the homestead except by contract executed as prescribed by Sec. 50 of Art. 16 of the Constitution of Texas, Vernon’s Ann.St. McCutcheon v. Union Mercantile Co., Tex.Civ.App., 267 S.W.2d 916 (Writ Refused) ; Bordon v. Tapp, Tex.Civ.App., 333 S.W.2d 417.

Appellees suppliers urge Newman v. Coker, Tex.Civ.App., 310 S.W.2d 354 and Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 as authority for sustaining the trial courts’ findings of equal priority between the liens of the suppliers and Bank. Those cases are clearly distinguishable upon the facts to the instant case and we believe are not proper authority for the courts holdings in this case. We find no substantial distinguishing features in our case and the McCutcheon case just cited and feel bound by its holding. There the court said [267 S.W.2d 917]:

“There should be no serious contention that the original note for $16,950 was not a negotiable note. It has all the requirements of a negotiable instrument as prescribed by the Negotiable Instrument law, Art. 5932, R.C.S. The fact that it refers to the mechanic’s lien contract by express provision of the statute is unimportant. It is nevertheless an unconditional promise to pay. Art. 5932, Sec. 3(2). The owners, the Dinglers, had therefore paid the full amount of the lien contract by execution and delivery of the negotiable promissory note to the contractor. They owed him nothing at the time the notices were served on them, since at that time he had transferred the note and lien contract to the bank.
“Appellees could fix no liens against the homestead except by contract executed as prescribed by Section 50 of Article 16 of the Constitution, Vernon’s Ann.St.
“They had no such contract. Therefore, any right to a lien in their favor could be only derivative from the lien created by the contract which the owners executed with Jack McCutcheon. Since that contract had been assigned by Jack McCutcheon to the bank to secure the $16,950 negotiable note the owners owed Jack McCutcheon nothing. Their debt was to the bank, the holder in due course of the $16,950 note. Therefore appellees acquired no lien against the property.” (Emphasis ours.)

We now turn to a consideration of the priority of liens as between the United States of America and the affidavit claimants. The dates in the processes employed for perfecting liens by the government and the affidavit claimants have been stated above. Under such facts we hold the lien of the United States of America has priority over the affidavit claimants. United States of America v. Security Trust & Savings Bank of San Diego, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53; United States of America v. Acri, 348 U.S. 211, 75 S.Ct. 239, 99 L.Ed. 264.

Though the two cases just cited involve attachment liens they originated in states which made them choate and perfected at the time of filing. Additionally, the United States Supreme Court has applied this rule to statutory mechanic’s liens. United States of America v. White Bear Brewing Co., 350 U.S. 1010, 76 S.Ct. 646, 100 L.Ed. 871. There the court held:

“A federal tax lien has priority over a statutory mechanic’s lien, not yet reduced to judgment, even though the mechanic’s lien was specific, prior in time, perfected in the sense that everything possible under state law had been done to make it choate, and was being enforced before the federal tax lien .arose.”

Accordingly, the judgment of the trial court is reversed and rendered wherein it held the affidavit claimants were entitled to equal priority with Bank and that all those liens were superior to the lien of the United States of America. The trial court will reform its judgment to hold Bank’s lien has priority over all others and that the lien of the United States of America had priority over the affidavit claimants. Bank and the government having prevailed on their contentions the costs are adjudged against the affidavit claimants.

      . The quote above shown is part of the stipulation of facts made by the parties.

      . It was stipulated by the parties that the property was a homestead. Additionally, our Supreme Court has held since an early date that the homestead comes into existence when the intention to occupy the premises as a homestead is concurrent with the execution of a contract for erection of a dwelling. Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033; West End Town Co. v. Grigg, 93 Tex. 451, 56 S.W. 49.


author: CLAYTON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. C. M. SHIRLEY, Appellee.
    No. 5474.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1961.
    Rehearing Denied Oct. 18, 1961.

      McDonald, Shafer & Gilliland, Odessa, for appellant.
    Warren Burnett, Odessa, for appellee.
   CLAYTON, Justice.

This is a workmen’s compensation case in which Texas Employers Insurance Association appeals from a judgment of the District Court of Ector County, Texas, awarding C. M. Shirley, a welder, total and permanent disability. The case was submitted to the jury under the provisions of subsection 2 of Section 1, Article 8309, Vernon’s Ann. Revised Civil Statutes of Texas. Appellant complains of the action of the trial court in submitting the case to the jury under this subsection, and of computing judgment on the basis of the jury’s finding thereunder.

The subsection provides a method' of determining average weekly wages of appellee by finding the average weekly wages of an employee of the same class, working substantially the whole of the year immediately preceding the injury to ap-pellee, in the same or similar employment as appellee in the same or neighboring place. This method of determining average weekly wages can be resorted to only after the employee has shown that such wages cannot be computed under subsection 1 of the statute. Texas Employers’ Ins. Ass’n v. Locke, Tex.Civ.App., 224 S.W.2d 755. In order to' make this showing, the employee must prove that he had not worked in the employment in which he was working at the time of his injury, whether for the same employer or not, substantially the whole year preceding his injury. Since the statute fixes average annual wages as 300 times the average daily wage earned by the employee, “substantially” 300 days have been established as constituting “substantially” a whole year. Petroleum Casualty Co. v. Williams, Tex.Com.App., 15 S.W.2d 553; Texas Employers’ Ins. Ass’n v. McKay, Tex.Civ.App., 205 S.W.2d 833.

The appellee was injured on March 26, 1959. During the preceding calendar year, beginning March 26, 1958, he had worked about eight months (“until November of ’58”) for W. M. Clayton, of the Well Service Company of Crane, and approximately six weeks for R. T. Mobley of M & M Mud Pumps, Inc., of Odessa, ap-pellee’s employer at the time of the injury. In the interim between these two employments, the record shows, the appellee had “taken a contract building some trailers at Lovington” which took “four or five weeks”, as nearly as appellee could remember. The record is silent as to whether or not appellee was self-employed during these four or five weeks, but from the use of the words, “taken a contract”, it must be assumed that he was self-employed, and therefore this period of time should not enter into the calculation of the preceding j'ear’s employment. Thus we have, at the outside, only about eight months, plus about six weeks, •of employment during the calendar year preceding the injury. Neither of appellee’s ■employers during this calendar year testified with any degree of certainty as to the exact length of employment of appellee; nor, apparently, could appellee himself supply this information.

From what has been said, and after a careful review of the entire record, we feel that it was impracticable to compute appel-lee’s average weekly wages under the formula set out in subsection 1 of Section 1 of Article 8309.

On the other hand, we have in the record ■some very definite and unrefuted testimony relative to subsection 2 of Section 1 of this Article. The witness A. B. Wright was a welding contractor in Odessa. The pertinent portion of his testimony is here quoted:

“Q. Inviting your attention particularly to the twelve months period of time between the 26th of March of 19S8 and the 26th of March of 1959, ■did you have any welders that worked for you as many as three hundred days in that twelve month period ? A. I am sure I did.
“Q. That was here in this West Texas area? A. It might have been that they would go down to Pecos County and come back the next day, but they were working out of my yard * * *.
“Q. What was one of your employees who worked three hundred days during that twelve months, what would he average per week ? A. Some weeks he would run fifty-two hours a week and another week he might run eighty-five * * *.
“Q. But on an average over the year it would be around one hundred and forty dollars a week? A. Yes, sir.”

The witness further testified that appellee had worked for him probably two years previously, in Odessa, where appellee was subsquently injured, and that his work was satisfactory.

It is considered that this testimony placed the case squarely within the formula prescribed by subsection 2 of Section 1 of Article 8309, and that the trial judge correctly submitted an appropriate special issue to the jury on that basis. The jury found that there were one or more employees, of the same class as appellee, working substantially the whole of the year immediately preceding the date of appellee’s injury, for the same or another employer, in the same or neighboring place, and that the average weekly wage of such other employee or employees was $125 per week. Appellee was averaging “in the neighborhood” of one hundred and fifty dollars a week at the time of his injury.

Finding no error in the manner in which this cause was submitted to the jury, appellant’s first point is overruled.

In appellant’s second point, it is urged that material jury misconduct occurred during deliberations that was injurious to appellant. This point was raised in appellant’s amended motion for new trial, to which motion appellant attached an affidavit of juror William A. Richardson, which read:

“I was on the jury in the workmen’s compensation case of C. M. Shirley vs. Texas Employers’ Insurance Association tried in Judge Milburn’s Court. While the jury was deliberating and while I was holding out against voting for total and permanent disability, and while the jury was arguing those issues, another juror stated to me that Attorney Burnett had instructed us that we were supposed to give the benefit of a doubt to the plaintiff Shirley.”

The statement attributed to Attorney Burnett, appellee’s attorney, was made in closing argument, and is set out in the transcript as follows:

“Mr. Burnett: In this case the fact that he (appellee) has tried to work on four occasions and has been able to work for as high as two weeks and in one instance perhaps as much as three weeks, is that reason for you to say that he is not totally disabled and not entitled to recover under this insurance policy that Texas Employers’ Insurance Association has accepted the premiums on and wrote.
“My friends, if there is anything I would resolve the doubt in favor of an old boy who has tried.”

In the hearing on motion for new trial, the juror was asked, and answered, the following questions by appellant’s counsel:

“Q. What was said to you, Mr. Richardson? A. One of the jurors reminded me that in Mr. Burnett’s argument he had stated that if there was a benefit of the doubt we should give it to Mr. Shirley.
“Q. At that stage whenever the juror said that to you what was the jury deliberating upon, what were they discussing with respect to the Charge?
A. Well, we were down to a question which read in effect whether Mr. Shirley was permanent, I believe it was temporary or permanent disability * *.
“Q. At the time you were deliberating upon that issue did you at that time or any other time remember that a statement bearing upon benefit of the doubt had been made to you by Mr. Burnett in his argument to the jury? A. Words to that effect, yes.
“Q. What I mean is, did you remember it? A. I remembered it.
“Q. Now, at that time that this-statement was made to you by the other juror had you at that time voted to answer one of the Special Issues to the effect that the disability, total disability was permanent, had you at that time yet voted in favor of answering that issue as permanent? A. Oh, no, that is what we were arguing about.
“Q. And I ask you this final question. At some time later did you agree to answer that issue ‘Yes’ or in other words, that it was permanent? A. I did.”

The juror, on cross-examination, testified further:

“Q. As a juror in this case you were sworn to follow the law that Judge Milburn gave you in his Charge? A. Yes.
“Q. Didn’t you tell me a while ago that as a juror you did that? A. Yes.
“Q. Didn’t you tell me that you did answer the questions from the evidence? A. Yes.”

It was further brought out that the jury had begun deliberations about 3:30 one afternoon, and continued to deliberate almost without interruption until around midnight that night. The reminder about the argument of appellee’s attorney, Burnett, was not made by the foreman of the jury, or any other person in authority. The deliberations of the jury covered an appreciable period of time, and it was not brought out just when the jury agreed upon the issue of permanent' disability. There was sufficient evidence at the trial, and from appellant’s doctor, to justify a finding that appellee’s injury was permanent. It is a reasonable inference that the juror Richardson arrived at his own conclusions as to the permanency of appellee’s injury, independent of anything that might have been said in argument, or any reminder of such argument in the jury room. We are aware of the line of authorities that hold that neither a juror’s disavowal of influence nor his admission of influence derived from misconduct is a proper inquiry. Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, and cases therein cited. But we feel that there is not a sufficient showing here from the testimony on motion for a new trial, or from the record as a whole, to show “probable prejudice” under Rule 327, Texas Rules of Civil Procedure, or that the trial was so materially unfair as to warrant a reversal of the judgment. Texas Employers’ Ins. Ass’n v. McCaslin, supra.

The judgment of the trial court is affirmed.