author: BELCHER, Commissioner.

text:
    Rudy VALADEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39746.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1966.
    Rehearing Denied Nov. 23, 1966.

      Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for murder; the punishment, thirty years.

On a former appeal this, cause was reversed for an error in the charge. It is reported in Tex.Cr.App., 385 S.W.2d 239.

The facts here are substantially the same as those related in the reported opinion. The evidence adduced on the instant trial has been examined and considered and is sufficient to support the conviction.

Appellant contends that the trial court erred in overruling his motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury.

Proof was offered that the appellant is a Latin American, that he was arrested immediately after the deceased was killed, and also other proof was introduced in support of the motion.

The indictment was returned into the District Court of Brown County on August 27, 1963, alleging the offense to have been committed on or about July 12, 1963. The first trial of this cause in November, 1963, in Brown County, resulted in a hung jury. The judge, on his own motion, then transferred said cause to Coleman County, another county in the same judicial district. The appellant was found guilty on the second trial in April, 1964, and his punishment was assessed at twenty-five years. This conviction was reversed on appeal on December 2, 1964. (385 S.W.2d 239). The third trial resulted in a verdict of guilty on November 10, 1965, with the punishment assessed at thirty years and'this cause is now before us for review.

After the verdict in the instant case on November 10, 1965, the appellant on December 9, 1965, for the first time filed a motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury. On January 5, 1966, the motion to quash was heard and overruled.

Art. 358 C.C.P. (Now Art. 19.27 C.C.P.) provided as follows:

“Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge.”

A motion to set aside an indictment should be made at the first opportunity. Tyson v. State, 146 Tex.Cr.R. 128, 171 S.W.2d 496.

In Armentrout v. State, 138 Tex.Cr.R. 539, 135 S.W.2d 479, a motion to quash an indictment on the ground that the grand jury was illegally constituted was made, and the court held that where one has been arrested and charged and has an opportunity to challenge the array he must do so.

In considering a similar contention in Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1965), the United States Supreme Court refused to consider the petitioners’ contention that the grand jury which indicted them was improperly constituted. The court’s judgment was based on the fact that Louisiana law required all objections to the manner of selection or the composition of the grand jury be made before entering upon the trial of the case, and objections not made within this time period were waived. No objection was made by the petitioners to the composition of the grand jury within the time allowed by Louisiana law. The United States Supreme Court said:

“It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. [350 U.S. at 97, 76 S.Ct. at 162.] ‘No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right * * *.’ ” 350 U.S. at 99, 76 S.Ct. at 163. See United States v. Sigler, D.C., 234 F.Supp. 171 (1964).

It is evident that the appellant was afforded reasonable opportunity to make objections to the manner of selecting, drawing and impaneling the grand jury, but he failed to timely object to the composition of the grand jury as required by the state law. The refusal of the motion to quash the indictment was not error.

Appellant contends that the trial court committed “Error in charging and failing to apply Article 1223, [Vernon’s Ann.] Penal Code.”

Art. 1223, supra, is set out in the charge.

The charge defines a “deadly weapon” as one “which from the manner used is calculated or likely to produce death or serious bodily injury.” It further instructs the jury that if the deceased in attacking Alvin Valadez was using a deadly weapon, as defined, then the law presumed that the deceased intended to murder Alvin Valadez; and also it charged that if it reasonably appeared to the appellant viewed from his standpoint alone, that Alvin Valadez was in danger of death or serious bodily injury at the hands of the deceased, then he would be justified in killing the deceased, and if they had a reasonable doubt thereof to acquit the appellant.

The charge as a whole adequately protects the rights of the appellant, and no reversible error is presented.

It is insisted that the trial court erred in submitting a charge on provoking the difficulty.

Upon arriving home, the appellant saw Alvin Valadez and first learned that Alvin had been in a fight at the home of Romero which was about five blocks away. Then appellant entered his home, obtained his pistol and some cartridges, loaded the pistol, and went to Romero’s and entered the residence without an invitation, and after a brief time he shot and killed the deceased in the house. The evidence was sufficient to raise the issue and the court did not err in charging on provoking the difficulty. Muckleroy v. State, 165 Tex. Cr.R. 629, 310 S.W.2d 315; Tew v. State, Tex.Cr.App., 379 S.W.2d 893.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: MORRISON, Presiding Judge.

license: Public Domain

text:
    Anthony Z. CLOPTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39827.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    Tom Upchurch, Jr., Amarillo (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years.

In making out its case as to the prior conviction alleged for enhancement, the State showed that appellant had been convicted in Potter County in a certain cause number and had been granted probation in said cause, but there was no showing that the order granting probation had been revoked. In the absence of proof of a final conviction of driving a motor vehicle on a public road while intoxicated, the evidence is insufficient to support a conviction of the subsequent offense of driving while intoxicated under Article 802b, Vernon’s Ann.P.C.

Since no order revoking probation nor any judgment of conviction was introduced, there was no proof of a prior conviction, which is an essential element of the felony charged in an indictment. Skaggs v. State, 160 Tex.Cr.R. 20, 266 S.W.2d 871.

In view of another trial attention is directed to the rule that an indictment may not be amended as to a matter of substance, and the date of a former conviction alleged for enhancement is a matter of substance. Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886.

The judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Herman R. VALLEJO, Jr. v. The STATE of Texas, Appellee.
    No. 39794.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    Robert O. Smith, Paul T. Holt, Austin, for appellant.
    Doren R. Eskew, City Atty., Don R. Butler, Asst. City Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is speeding; the punishment, a fine of $101.

Appellant’s conviction resulted from a trial de novo on March 17, 1966, in The County Court at Law No. 1 of Travis County, after an appeal from a conviction upon complaint in the Corporation Court of the City of Austin.

Only one ground of error is presented by appellant on appeal — which is the contention that the complaint upon which he stands convicted is void because it does not meet the requirements of Art. 1, Sec. 10 of the Constitution of this State, Vernon’s Ann.St., and of the Fifth Amendment to the Constitution of the United States.

The complaint signed and sworn to by the affiant, which was filed in the Corporation Court, reads in part, as follows:

“IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
“I, THE UNDERSIGNED AF-FIANT, DO SOLEMNLY SWEAR THAT I HAVE GOOD REASON TO BELIEVE AND DO BELIEVE THAT ONE HERMAN R VALLEJO JR
ON OR ABOUT THE 31 DAY OF MAR—, 1965, AND BEFORE THE MAKING AND FILING OF THIS COMPLAINT, WITHIN THE INCORPORATED LIMITS OF THE CITY OF AUSTIN, IN TRAVIS COUNTY, TEXAS,
did drive and operate a motor vehicle upon a public street therein situated at a speed which was greater than was then reasonable and prudent under the circumstances then existing, to-wit, at a speed of 45 miles per hour, at which time and place the lawful maximum prima facie reasonable and prudent speed indicated by an official sign then and there posted was 30 miles per hour;
AGAINST THE PEACE AND DIGNITY OF THE STATE.”

It is first contended by appellant that the complaint does not meet the basic essential requirements of an “accusation,” as contemplated by Art. 1, Sec. 10, of our State Constitution because it does not accuse him of committing an offense.

In this connection, appellant argues that in the complaint the affiant merely says that he believes and has good reason to believe that appellant drove his motor vehicle too fast and makes no direct or positive averment that an offense was committed.

While the term “charge” is not used in the complaint, the statement of the affiant that he believed and had good reason to believe that appellant did drive his motor vehicle upon a public highway at a speed greater than was reasonable and prudent under the circumstances—to wit: 45 miles per hour at a place where the lawful maximum prima facie reasonable and prudent speed posted was 30 miles per hour—was tantamount to a charge and accusation that an offense was committed.

Appellant, from reading the complaint, could ascertain with reasonable certainty with what he was being charged so as to properly prepare a defense. It is the rule that a complaint must state facts sufficient to show the commission of an offense charged but the same particularity is not required as is necessary in an indictment or information. See: 16 Tex.Jur.2d 297-298, Sec. 146.

In Art. 45.27 of the 1965 Code it is provided that a defendant shall not be discharged by reason of an informality in a complaint filed against him in a justice court. The same rule would certainly apply to a complaint filed in corporation court.

Walton v. State, 162 Tex.Cr.R. 262, 284 S.W.2d 373, and Ex parte Greenwood, 165 Tex.Cr.R. 349, 307 S.W.2d 586, cited by appellant, are not controlling, because in the Walton case the question was whether certain paragraphs in an information had been presented by the prosecuting attorney as required by law, and in Ex parte, Greenwood, the question was whether a sworn complaint, alone, without an information would support a conviction in corporation court.

Art. 5, Sec. 12, of the Constitution of this State provides in part: “All prosecutions shall be carried on in the name and by authority of the State of Texas,” and shall conclude: “ ‘Against the peace and dignity of the State.’ ”

Art. 45.01 of the 1965 Code of Criminal Procedure provides that the proceedings in the corporation court shall he commenced by complaint which shall begin: “ ‘In the name and by authority of the State of Texas’ ”, and shall conclude: “ ‘Against the peace and dignity of the State’ ”.

The complaint in question complies with these requirements.

It is next insisted that the complaint does not meet the requirements of “due process” under the Fifth Amendment to the Constitution of the United States and also does not meet the requirements of the Fourth Amendment, which preserves to the people the right to be secure in their persons and homes against unreasonable searches and seizures and provides that “no Warrants shall issue, but upon probable cause.” Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; and Barnes v. State of Texas, Tex.Cr.R., 390 S.W.2d 266; Id., 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, are cited in support of this contention.

These cases relate to the necessity of stating facts constituting probable cause in a complaint or affidavit for the issuance of a warrant of arrest used as a basis for a search, or a search warrant, and have no application to a complaint made in corporation court as the basis of a criminal prosecution.

No warrant of arrest was issued upon the instant complaint, and the sole question is whether it is sufficient to charge an offense. The answer is “Yes.”

Appellant’s remaining contention that the affiant to the complaint was not a credible person is not properly presented to this court.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Presiding Judge. WOODLEY, Judge

text:
    Issiac BLASSINGALE, Appellant, v. The STATE of Texas, Appellee.
    No. 39761.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1966.
    Rehearing Denied Nov. 23, 1966.
    Fred D. Moore, Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles L. Caperton, Donald L. Caperton, Donald D. Koons and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is robbery; the punishment is 199 years.

Witness for the State testified that appellant and a companion entered her liquor store and ordered a bottle of gin which was located high on a shelf. As the witness, who the record indicates is S' 3" tall, reached for the bottle, appellant, who the record indicates is over six feet tall, grabbed the back of her neck and threw her to the floor, then dragged her to the back of the store while holding his hand in and over her mouth. Appellant remained with the witness for a short time, then released her after threatening her bodily harm should she move or make any noise. After appellant and his companion left, the police were notified. The witness testified that in excess of $200.00 was taken from her cash register and that appellant and his companion had placed her in fear of bodily harm.

Gonzales v. State, Tex.Cr.App., 386 S.W.2d 139, and Mason v. State, Tex.Cr. App., 375 S.W.2d 916, dispose of appellant’s contentions as to punishment.

Appellant further contends that comments made by the District Attorney in his argument to the jury constitute reversible error. The record shows that objections to the comments were first made in appellant’s motion for new trial. In Doswell v. State, 158 Tex.Cr.R. 447, 256 S.W.2d 416, we held that objections to the State’s arguments presented for the first time on motion for new trial were too late. Even if we were to consider the argument, we have concluded that reversible error would not have been shown. See Marshall v. State, 104 Tex.Cr.R. 619, 286 S.W. 214; Lott v. State, 164 Tex.Cr.R. 395, 299 S.W.2d 145; Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218; and Yanez v. State, Tex. Cr.App., 403 S.W.2d 412.

Finding no merit in appellant’s contentions and finding further that the evidence supports the conviction, the judgment is affirmed.

WOODLEY, Judge

(concurring).

I concur in the holding that the punishment assessed is within the statutory limits and is not excessive. I would point out, however, that the punishment assessed by the jury exceeds by 100 years what the majority held to be the maximum punishment under statutes providing a punishment of “any term of years not less than two” (Assault to Rape, Art. 1162 P.C.) or “any term not less than five years” (Burglary of Private Residence, Art. 1391). Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187; Sellars v. State, Tex.Cr.App., 401 S.W.2d 835.


author: MORRISON, Judge. WOODLEY, Judge

text:
    Curtis Allen LESLIE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39685.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    As Amended on Denial of Rehearing Oct. 12, 1966.
    Second Rehearing Denied Dec. 31, 1966.

      Paul Leech, Grand Prairie, for appellant.
    Henry Wade, Dist. Atty., Donald D. Koons, Michael N. Buckley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $150.00.

An officer’s attention was directed to appellant when his automobile collided with an automobile in front of his. Lt. Wilson arrived upon the scene and carried appellant to the Mesquite Police Station. Both he and Officer Rice testified that appellant smelled strongly of intoxicants and that as Lt. Wilson began to interrogate appellant, he became very white, vomited and fell twice into the vomit. Officer Rice further testified that the vomit smelled of alcohol, that appellant urinated on himself, and that he had to be assisted to a cell. Both officers testified that appellant was, in their opinion, very drunk.

Appellant did not testify or offer any evidence in his own behalf.

Appellant’s principal claim for reversal is founded in the action of the court in sustaining the State’s motion to instruct appellant’s counsel not to refer to the loss of his operator’s license upon a conviction for driving while intoxicated as a part of the punishment.

The case at bar is unlike our recent case of Harward v. State, Tex.Cr.App., 398 S.W.2d 127, and was tried after the effective date of the Amendment of Sec. 1, Subsec. (r) of Article 6687B, Vernon’s Ann.Civ.St., which now reads, “ ‘The suspension or revocation of a license.’ Shall be considered as a penalty and subject to executive clemency as any other fine or punishment.”

In the light of this amendment we must reappraise the opinion of the majority on rehearing in Davison v. State, 166 Tex.Cr. R. 376, 313 S.W.2d 883.

This amendment is still not “any punishment prescribed by this Code”, as is provided by Article 47, Vernon’s Ann.P.C.

Article 802, Vernon’s Ann.P.C., which announces driving while intoxicated and prescribes the penalty therefor, was not amended in 1965.

Trial was had and notice of appeal was given prior to January 1, 1966, and the enactment of Article 37.07, V.A.C.C.P. does not affect our disposition of this case.

We have concluded that the action of the Legislature in amending the civil statutes so as to enable the Board of Pardons and Paroles and the Governor to grant restoration of a license to drive upon the public highway does not make it a part of the punishment prescribed by the Penal Code. The authorities cited in Davison, supra, are still controlling, and the court did not err in sustaining the motion.

Appellant objected to several portions of the prosecutor’s argument. We will set forth the most questionable portions:

“There is absolutely no evidence in this case to show that the defendant was intoxicated and was sick from any other reason other than drinking of too much alcoholic beverages.
As I was saying, there is no evidence in this case that the defendant in this cause was sick on the night for any other reason than being too drunk. He was sick by the evidence.
As a matter of fact, the only evidence in this case is that the defendant was sick because he had had too much to drink. You all recall the testimony in this regard.”

We do not find this to be an indirect reference to appellant’s failure to testify because there were many sources from which the evidence in question might have been elicited other than from appellant. Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659, and cases there cited.

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

WOODLEY, Judge

(concurring).

The writer concurs in the affirmance of the conviction for the reasons stated in his Dissent in Davison v. State, 166 Tex.Cr.R. 376, 313 S.W.2d 883, 885, and his Concurring Opinion in Kirk v. State, Tex.Cr.App., 401 S.W.2d 596.


text:
    Walter Lee BROWN, Appellant, v. STATE of Texas, Appellee. Artie B. BRYANT, Appellant, v. The STATE of Texas, Appellee.

      Nos. 39812, 39813.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    No attorney on appeal for appellants.
    Henry Wade, Dist. Atty., Donald Koons, Charles L. Caperton and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The appellants were jointly charged and tried for breaking and entering an automobile with the intent to commit theft; and upon conviction the punishment for each was assessed' at two years in the Department of Corrections.

Clarance Eafon testified that when he returned about 4 p. m. to a garage and body shop which was under his care, control, and management, he found the appellant Brown in the front seat of a Chevrolet automobile, with some pliers, doing something to the glove compartment; that he found the appellant Bryant in the rear of the automobile with a jack handle, trying to enter the trunk, the rear seat having been removed; that when he asked what they were doing one of the men said they were trying to get a tire; that the men drove away in a Ford and he noted the license number, which he gave to the officers; that two days later the appellants came to the garage and told him they were trying to take a tire out of the Chevrolet and were willing to take care of any damage done to the car; that appellants got the lug wrench which they said they had left and took it with them; that three screws had been removed which held the glove compartment onto the dash of the Chevrolet; that it would be necessary to go through the compartment to remove the radio; that the Chevrolet, which was also under his control, was closed on the morning before he found the appellants in it about 4 p.m.; and that he did not give the appellants or either of them his consent to open and enter the Chevrolet or to take anything from it.

Testifying m their own behalf, each of the appellants admitted being at the scene shown by the state. They testified that a tire on their car needed repair, and having no jack they stopped at the garage in question and finding it closed began looking in cars nearby for a jack, without any intention of stealing a jack; that they opened the unlocked door of a Chevrolet; that when Eafon came Bryant was trying to get into the trunk of the Chevrolet, and they told Eafon they were looking for a jack to repair a tire, and when Eafon asked them to leave they drove away; that they talked with Eafon later and he told them he did not want to press charges and signed a statement to that effect. Brown testified that he was “under four years suspension for theft from the person” and Bryant testified he “got a ten year sentence out in California for possession of narcotics.”

Notice of appeal was given on December 17, 1965.

There are no formal hills of exception and the informal bills do not reveal error.

No brief has been filed in behalf of the appellants.

The evidence is sufficient to support the convictions, and no error appearing, the judgments are affirmed.

Opinion approved by the court.


author: DICE, Judge.

text:
    Harold Randolph WOMACK, Appellant, v. The STATE of Texas, Appellee.
    No. 40014.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1967.

      Bill H. Brister, of O’Connor & Brister, Lubbock (On Appeal Only), for appellant.
    Alton R. Griffin, Dist. Atty., Jerome H. Schuetzeberg, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for theft by false pretext; the punishment, six years.

Trial was after January 1, 1966, upon an indictment, in the ordinary form, for felony theft.

We reverse the judgment because the evidence is insufficient to support the conviction.

On direct examination, the prosecuting witness, J. W. Wilhite, testified that on Monday, February 14, 1966, the appellant came to his place of business in Lubbock and told him he (the appellant) was working as a front man for the Internal Revenue Service and that Wilhite and others were going to be checked and filed on by the government. At such time, appellant stated that for $500 he could get the witness’s tax records and papers torn up or that he would get the papers and “bring them out there and we would tear them up * * After an hour and a half, appellant left and the prosecuting witness called the F.B.I. The next day (Tuesday), appellant returned to Wilhite’s office and told him that charges were going to be filed on Friday, and he then offered to get the papers for $400. Appellant left, and Wilhite again called the F.B.I. Captain L. W. Forrester, of the Lubbock police department, was then called in on the case. On Thursday, Wilhite saw appellant and agreed to give him $350 for the papers. A meeting place was arranged for that night at the Little Hotel. Later in the day the place was changed by Wilhite to the Eldorado Motel. That night the two met at the motel and Wilhite gave appellant $350, in $50 marked bills, “to tear up the income tax forms.”

On cross-examination, the prosecuting witness testified that he had known appellant for at least twelve or fifteen years and had been to appellant’s place of business, where he rebuilt automobiles. With reference to his meeting the appellant and paying the $350 to him, the prosecuting witness testified, in part, as follows:

“Q And Captain Forrester asked you to call him and have him meet you at the Eldorado Motel at the particular time, on a particular date, is that correct ? A Captain Forrester told me to go ahead and pay him off, and get it over with and they would pick him up.
<( ⅝ *
“Q My question was, is it not true that at Captain Forrester’s directions you set up the whole thing out there, regardless of who picked up the — picked out the motel that you were going to meet in? A That’s right.
“Q And at the very time that you gave him the money you knew at that time in your own mind that whatever he had been telling you about the Internal Revenue Service and so forth was incorrect, didn’t you? A Yes, I did.
«* * *
“Q And regardless of what the situation was and who told you to set it up and what all you went through to do, in other words, you were not being fooled by your friend Red one iota, were you, at the time. You knew exactly what the situation was and the Internal Revenue Service was not after you in any way, didn’t you? A Yzah, I knew they wasn’t after me.”
“Q In other words, whatever pretext you allege that he took this money, or that you gave it to him under, you were not fooled by that one iota at the time you gave him the money there in your cabin, were you? A I was sure that I wasn’t going to get nothing for my money, yes, sir.
“Q That’s what I’m talking about, and you were not fooled about the situation in any way, everything had been fully disclosed to you by Captain For-rester and the F.B.I. and what not, and you were going along with them at that time. You knew that you were not being fooled by Red or anybody else that was with him at that time, were you? [sic] A I don’t think I was being fooled, no.
“Q And the fact that you were not being fooled in any way, that didn’t induce you in any way to give up the money there at that time, did it, because you already knew that it was a hoax to begin with, didn’t you? A I knew it was a blackmail, or hoax, or whatever you want to call it, somebody trying to beat me out of some money.
“Q And at the time that you gave him the money this situation that you say he had told you about, that didn’t induce you to give him the money at all, because you knew it was a pretext, didn’t you, at that time? A Yes, I definitely did.”

In his charge, the court required the jury to find beyond a reasonable doubt, before convicting appellant, fhat he did obtain possession of the $350 from Wilhite by fraudulently and falsely representing to him “that he, Harold Randolph Womack, could prevent the Internal Revenue Service from checking and making an investigation of the records of Wilhite” and that Wil-hite parted with the possession of the $350 as a result of and in reliance on said representations.

To sustain a conviction for theft by false pretext it must appear that the false pretext was the inducing cause which moved the injured party to surrender to the accused the property in question. Nichols v. State, 133 Tex.Cr.R. 294, 109 S.W.2d 1057; McCain v. State, 143 Tex.Cr.R. 521, 158 S.W.2d 796; Nickson v. State, 147 Tex.Cr.R. 316, 180 S.W.2d 161; Thornton v. State, 171 Tex.Cr.R. 565, 352 S.W.2d 742.

Stated in another way, it must be shown that the injured party relied upon the false pretext. Eason v. State, 167 Tex.Cr.R. 224, 320 S.W.2d 11.

While the evidence is sufficient to show that the pretext made by appellant was false, there is no proof that the injured party relied upon such pretext and that it was che inducing cause for his pay-^ ing the $350 to the appellant. To the contrary, the testimony of the injured party shows that he did not believe the representations made to him by appellant and did not rely upon the same in parting with the $350.

Under the record, the conviction for theft by false pretext cannot stand.

The judgment is reversed and the cause is remanded.


text:
    Charles Edward TAWATER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39733.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 23, 1966.
    Ogg, Merrill & Turner, by Joe E. Turner, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C. by reason of two prior convictions for felonies less than capital, life imprisonment.

Appellant was employed by the prosecuting witness as a handyman and lived on the premises in a trailer house. In his employment appellant was furnished a truck and some cooking utensils.

The prosecuting witness, who was a railroad engineer, left home on a Sunday night and returned the following Friday. Upon his return he noticed that his truck was gone and certain property was missing from his house. Appellant had moved out of -the trailer and everything was gone from inside.

The prosecuting witness, after receiving information as to appellant’s whereabouts, called the police and accompanied them to a motel, where the officers knocked at a certain cabin. Appellant came to the door and invited them in, saying: “ T know what you all want,’ ” and that he had the “stuff.” The officers then entered the cabin and appellant stated that he had certain property belonging to the prosecuting witness which he had taken from his house, and pointed it out to them. The property consisted of a television set found behind a bed, two rifles found in the bathroom, and an electric skillet. He also stated that he had taken two other television sets, which he had pawned. These two sets were later located at two pawn shops.

After the missing property was found in the cabin, appellant was taken into custody and searched by the officers. In the search a set of keys was found on his person. Appellant identified the keys as belonging to the missing truck and stated that he had abandoned the truck under a highway bridge. The following day the truck was found in storage, having been picked up from under the bridge by a constable.

It was shown by the prosecuting witness’s testimony that the property was taken without his permission or consent and that it had a value of over $50.

Proof was made of the two prior convictions of appellant alleged in the indictment for enhancement, the first conviction being for the offense of felony theft and the second conviction being for the offense of embezzlement.

Appellant did not testify or offer any evidence in his behalf.

Appellant predicates his appeal upon one point of error, which, as stated in his brief, is “that he has been denied the right to effective assistance of counsel secured by the sixth amendment to the United States Constitution as applied to the states through the fourteenth amendment.”

Such contention was urged by appellant in a twenty-six-page motion for new trial prepared by him, which, although not shown to have been filed in the cause, was heard by the trial judge and overruled.

In the motion, appellant alleged that he was convicted upon illegally-obtained evidence and that his court-appointed counsel acted incompetently in presenting his defense, particularly in failing to have witnesses subpoenaed and in failing to file a motion for continuance, which he requested him to do.

At the hearing on the motion it was shown that appellant was represented at the trial by court-appointed counsel, who was licensed to practice law in the year 1962 and a member, in good standing, of the Texas Bar. He testified that he had represented between fifty and a hundred defendants in felony cases, at least fifteen of which were contested. Approximately six were habitual-criminal cases, some of which resulted in acquittals and one reduced to a misdemeanor conviction. He swore that after his appointment he conferred with appellant on two occasions concerning the merits of the charge and that he recommended that “ * * * we attempt to work out a plea.” He stated that this was not accomplished and in further talking to appellant it became apparent that his defense was based upon the contention of an illegal search and seizure. With this information he proceeded to research the questions of law pertaining to search and seizure as would be applicable to the case. He swore that appellant stated he had no witnesses but did give him the name of the motel manager whom he did not subpoena after ascertaining that she was not present at the time of the search. He further stated that he felt that appellant’s defense had very little merit and that appellant gave him no legal grounds for a continuance that could have been in good faith presented to the court.

Appellant testified at the hearing that in consultation he explained to said attorney that his main defense would be “an illegal arrest” and that he furnished the attorney with a list of witnesses to be subpoenaed and requested that a motion for continuance be filed because more time was needed to prepare his defense.

The record reflects that appellant has been represented by three court-appointed counsel since the original indictment was returned against him.

Recently, in Fletcher v. State, 396 S.W.2d 393, this court held that the constitutional right to counsel does not mean errorless counsel.

In the instant case, appellant’s court-appointed counsel made various objections to testimony at the trial and raised as a defense appellant’s claim that the evidence presented against him was illegally obtained. The record does not sustain such contention.

All of the statements made by appellant leading to the recovery of the stolen property, except the truck, appear to have been voluntarily made before he was taken into custody. His statement made at the time of his arrest which led to the recovery of the stolen truck was admissible as an oral confession, under the provisions of Art. 727, Vernon’s Ann.C.C.P., in forcé at the time of the trial and conviction. Appellant’s arrest without a warrant, when he was found in possession of the stolen property, was lawful. Art. 325, V.A.C.C.P., now Art. 18.22 of the 1965 Code; Ringo v. State, 161 Tex.Cr.R. 93, 275 S.W.2d 121.

Appellant’s claim that he has been denied the effective assistance of counsel is overruled.

The evidence is amply sufficient to sustain the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DENTON, Chief Justice. NORTHCUTT, Justice

text:
    SALES AFFILIATES, INC., Appellant, v. L. A. McKISSON, Appellee.
    No. 7641.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1966.
    Rehearing Denied Nov. 7, 1966.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant, John D. Curtis, Amarillo, of counsel.
    Wayne B. Barfield and J. Jerry Merchant, Amarillo, for appellee, Wayne B. Barfield, Amarillo, of counsel.
   DENTON, Chief Justice.

This is a products liability case. Suit was brought by L. A. McKisson for injuries alleged to have been sustained by his wife from the use of a permanent wave preparation known as “Zoto’s Lanolin Bath”. Mrs. McKisson suffered scalp burns and loss of hair after applying the wave lotion. The defendant below was Sales Affiliates, Inc., the distributer of the product. Professional Beauty Products, a local beauty supply company which furnished the permanent wave preparation to Mrs. McKisson, is not a party to the suit.

The plaintiff’s cause of action was based on a breach of implied warranties of fitness and merchantability, and negligence in the alternative. The trial court submitted the case to the jury on both the implied warranty and negligence issues. The jury found for the plaintiff on the implied warranty issue that the Zoto permanent wave was not reasonably fit for use as a permanent wave; that Mrs. McKisson was damaged as a result of using the product; and that the product was the proximate cause of the damages sustained. In response to the negligence issues the jury found: the defendant failed to provide adequate directions for the use of the product; that such failure was negligence, and a proximate cause of the injury. The jury further found the wave lotion in question should not have been applied to bleached hair; that a reasonably prudent beauty operator in the exercise of ordinary care would have known the lotion should not have been applied; that the application of the lotion to Mrs. McKisson’s hair was negligence; and that such negligence was a proximate cause of her damages. The jury awarded plaintiff $1,000.00 damages. The trial court entered judgment for the plaintiff on the basis of the breach of implied warranty.

Appellant’s first contention goes to the submission of the implied warranty issue. Their position is there are no allegations and proof establishing any privity between the parties, and as a matter of law the appellant could not be held liable for damages for a breach of an implied warranty. Mrs. McKisson was the owner and operator of a beauty shop. Although she was not a licensed operator herself she employed licensed operators to give permanent waves and to perform the various beauty shop services for her customers. The Zoto permanent wave preparation in question was given to Mrs. McKisson by a salesman of Professional Beauty Products Company as a promotion to encourage the use of Zoto products. Sales Affiliates, Inc., the defendant below, was the distributer of the product. This is evidenced only by the labels on the bottles containing the preparation in question. There is no evidence who manufactured the product, but in our view there is no material distinction between manufacturer and distributer under the facts in this case. In any event, there was no privity between the parties hereto.

The basic question to be decided is whether or not the rule of implied warranty or liability without fault as set out in Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 has application here, or stated differently, will that rule be extended to nonfood cases. The Texas Supreme Court has not so extended the Decker rule. This is so even though that court has, in the twenty-four years since the Decker case, had an opportunity to do so. As this court stated in Capetillo v. Crosby County Fuel Association, 407 S.W.2d 335, decided this date: “[T]he Supreme Court of Texas had not [as of February 1966] capitulated to the liability without fault doctrine outside the food cases.”

In Brown v. Howard (Tex.Civ. App.) 285 S.W.2d 752; Ref. N.R.E. (1955), the court considered whether or not the rule of implied warranty as set forth in Decker had application to one formulating chemicals for use as a cattle spray. The court noted the Decker case and the authorities cited therein “disclose an emphasis upon ‘food for human consumption’ ”. In refusing to extend the Decker rule the court said: “We feel unauthorized on the basis of the Decker case to recognize a further exception to the general rule and impose liability in this case absent privity of contract.” The recent case of Cruz v. Ansul Chemical Company (Tex.Civ.App.) 399 S.W.2d 944; Ref. N. R. E. (1966) had to do with an alleged implied warranty of the fitness of a fire extinguisher. In refusing to apply strict liability without fault the court held: “Plaintiff’s suit is based solely on allegations of a breach of alleged implied warranty not involving negligence. No privity of contract existed between Plaintiff and Ansul. We feel that the present law in Texas governing the suit as against defendant Ansul is set forth in Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752.” The court then quotes extensively from the Brown case. The results of both the Brown case and Cruz case were approved by the Supreme Court. There is no Texas authority to the contrary. Unlike the Fifth Circuit Court of Appeals in Putnam v. Erie City Manufacturing Company, 338 F.2d 911 (1964), this court is not in a position to make “an Erie educated guess” and speculate whether the Texas Supreme Court will extend the rule of the Decker case to nonfood cases. In our judgment it is not proper for an intermediate appellate court to place Texas among those “enlightened jurisdictions” which have applied strict liability without privity in nonfoo'd products liability cases. Under the presently existing Texas law, we conclude and so hold, the trial court erred in submitting the implied warranty doctrine and in rendering judgment on that basis.

We next turn to the alternative issue of negligence. As stated, the jury found Sales Affiliates was negligent in failing to provide adequate instructions for the use of the permanent wave, and that such negligence was a proximate cause of the plaintiff’s damages. However, the jury also found the wave lotion should not have been applied to bleached hair; that a reasonably prudent beauty operator in the exercise of ordinary care would have known this to be true; and that the application of the lotion on Mrs. McKisson’s hair was negligence and a proximate cause of her damages. It is uncontradicted that the lotion was applied by a licensed beauty operator. Mrs. McKisson had bleached hair and she testified she last bleached it in February before this incident occurred in April, and she knew certain hair lotions were not to be applied to bleached hair. The label on the bottle read: “For Normal or Resistant Hair”. Mrs. McKisson testified bleached hair was not normal hair. We think the probative evidence amply supports the jury findings in respect to contributory negligence. It is fundamental that in common law negligence actions, contributory negligence is an absolute defense. 40 Tex.Jur. 2d Negligence, Section 97, page 602 and authorities cited. However, the question to be decided here is whether the finding of contributory negligence bars appellees’ right to recover where the cause of action is based on implied warranty as submitted to the jury here. We have not found or been cited to any Texas case directly passing on this question.

As we interpret the present status of our position, Texas is not a “strict liability jurisdiction” in products liability cases except those dealing with food. However, the question of whether or not contributory negligence is available as a defense in products liability cases presents no novel question except in the sense it has not been directly passed upon in Texas. If liability in such cases is established on the basis of negligence on the part of the defendant, contributory negligence on the part of the plaintiff becomes, as a general rule, a bar to recovery. However, even in so called “strict liability” jurisdictions such as New Jersey and New York, among others, the courts have held contributory negligence may be utilized as a defense in breach of warranty cases. Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769; Fredendall v. Abraham & Straus, 279 N.Y. 146, 18 N.E.2d 11 (Ct.App.1938). In Maiorino v. Weco Products Company et al., 45 N.J. 570, 214 A.2d 18, the New Jersey Supreme Court was considering a consumer’s action against a toothbrush manufacturer — packager and retailer for injuries sustained in opening a glass container in which the new toothbrush was packaged. The case was presented against the manufacturer and packager on both the issues of negligence and breach of warranty. The defense of the plaintiffs’ contributory negligence was also submitted to the jury. In approving the submission of the issue of contributory negligence the court said:

“ * * * Simply stated, we are of the view that where a plaintiff acts or fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his hands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover. In short, in our judgment the well known principle of contributory negligence in its broad sense is sufficiently comprehensive to encompass all the variant notions expressed in the cited cases as a basis for refusing plaintiff a recovery when his own lack of reasonable care joined or concurred with the defect in the defendant’s-product as a proximate cause of the mishap and his injury. A manufacturer or seller is entitled to expect a normal use of his product. The reach of the doctrine-of strict liability in tort in favor of the-consumer should not be extended so as. to negate that expectation.”

Other jurisdictions which have been classified as so called “not strict jurisdictions”' such as Texas, have also held in products-liability cases that a party cannot recover for a loss that he could have averted by the exercise of due care whether the contention be termed assumption of risk or contributory negligence. Dallison v. Sears, Roebuck & Company, 313 F.2d 343 (10th Circuit) ; Barefield v. LaSalle Coca-Cola Bottling Company, 370 Mich. 1, 120 N.W.2d 786; Gardner v. Coca-Cola Bottling Company of Minnesota, 267 Minn. 505, 127 N. W.2d 557; Nationwide Mutual Insurance Company v. Don Allen Chevrolet Company, 253 N.C. 243, 116 S.E.2d 780.

It is fundamental in our practice that a defendant is entitled to have the jury instructed on his pleaded defense if supported by competent evidence. Knutson v. Ripson, 163 Tex. 312, 354 S.W.2d 575. Rule 279, Texas Rules of Civil Procedure. Implied warranty is clearly grounded in tort. This is apparent from the language of the Decker case. So the ultimate question here is whether or not the defense of contributory negligence is available in the products liability case which is based on breach of implied warranty.

There was evidence to support the jury findings that the plaintiff’s wife was contributorily negligent in using the wave lotion on her bleached hair; and her failure to use ordinary care in applying the lotion. This evidence establishes the misuse of the product which brought about the personal injury complained of. To permit a recovery here would be allowing recovery for a loss that could have been averted by the exercise of ordinary care. The evidence supports the jury finding that this degree of care was not exercised by appellee’s wife. We are therefore of the opinion we are constrained to follow the above cited authorities and hold the finding of contributory negligence of Mrs. McKisson and its proximate cause of her damages results in a bar to her recovery for such damages.

Our disposition' of the points of error discussed makes a discussion and determinations of other points unnecessary.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.

NORTHCUTT, Justice

(concurring).

I concur in the result reached in the above opinion but I do not understand that the holding in the case of Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 applies only to food cases. I construe the case to hold it applies to articles that are injurious to human health or life. In considering the rule of implied warranty or liability without fault the court stated: “Liability in such case is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of the public policy to protect human health and life.” As I construe the holding of that case is that the implied warranty, so called, reaching from the manufacturer of articles to the ultimate purchaser for immediate use is in the nature of a representation that the highest degree of care has been exercised and is fit for the use for which it is sold, and if used as directed, it will not harm human health or life. For example, I am unable to distinguish the difference in effect of human suffering when a person uses an eye-wash solution that caused blindness and from sickness caused by eating improper food.


author: BELL, Chief Justice.

text:
    MINNESOTA MUTUAL LIFE INSURANCE COMPANY, Appellant, v. Richard H. WEEKS et al., Appellees.
    No. 14829.
    Court of Civil Appeals of Texas. Houston.
    Nov. 3, 1966.

      Vinson, Elkins, Weems & Searls, James Greenwood, III, Houston, for appellant.
    John J. Dobler, Bellaire, for appellees.
   BELL, Chief Justice.

While we used the term “Appellees” in the style of the case, actually the only appel-lee is Richard H. Weeks individually. Suit was against him individually and in his assumed name of Richard H. Weeks and Associates. We will hereafter use the singular term “appellee”.

Suit was filed against appellee by American Capitol Insurance Company to recover the balance due under a lease dated Septem-her 1, 1962. The lease was for a three year term. Rental was paid through October, 1963. Suit was to recover rental provided in the lease for the balance of the term, less the amount that the lessor had obtained through rental from a subsequently obtained tenant.

Appellee in his answer pled he did not execute the lease individually and was not personally liable thereon. He pleads that in signing the lease he was acting as agent for appellant. He also filed a cross-action against appellant, alleging the lease sued on was executed for and on behalf of appellant, and prayed that if there was any recovery against him he recover against appellant.

American Capitol, after trial to the court without a jury, recovered judgment against appellee for unpaid rent in the amount of $2,180.00, together with $250.00 attorney’s fees. Appellee was given judgment over against appellant. No complaint is here made by appellee of the judgment against him in favor of American Capitol.

The trial court found that appellee and appellant on July 24, 1962, executed a “General Agent’s Contract” which was to be effective August 1, 1962. It also found that on August 1, 1962, appellee, acting as general agent for appellant, executed a lease commitment and that W. J. Hadlick, regional superintendent for appellant, was present at the execution of the lease commitment and authorized the act of appellee. It further found that the lease sued upon by American Capitol was executed by Richard H. Weeks by his signing “Richard H. Weeks and Associates by Richard H. Weeks, General Agent”. W. J. Hadlick was present at the execution of the lease and signed the same as a witness. It found Richard H. Weeks and Associates was a general agency exclusively for appellant. Appellant continued to occupy the leased premises after appellee terminated his relationship with appellant. Finally it was found that W. J. Hadlick advised appellee it was customary for appellant to have its local agent take leases in his own name.

Appellee’s theory of recovery, as shown by his pleading, is that the lease sued on by the lessor was in fact executed by appellee as the authorized agent for appellant and he is entitled to be reimbursed for expenses incurred by him in performance of an obligation of his principal. On appeal, while he cites cases which hold that he is, under such circumstances, entitled to reimbursement, he also seems to rely on estoppel that would be available to a third party dealing with an agent who had no actual authority but who was clothed by the principal with apparent authority. We must decide the case on the theory on which it was pled and tried below and that is whether appellee executed the lease on behalf of appellant and if so whether he had authority to do so.

It is settled law that if an agent is authorized to perform an act for a principal and it is intended under the employment agreement that the agent will be reimbursed by the principal for expenses incurred by the agent in carrying out the duties of his employment, this principal must reimburse the agent. Oats v. Dublin National Bank, 127 Tex. 2, 90 S.W.2d 824 (Com.App.); John Maynard Lumber Co. v. Brazell, 28 S.W.2d 877 (CCA), writ dism.; Morgan v. Rose, 62 S.W.2d 1022 (CCA), writ dism.; Butler v. Continental Oil Co., 182 S.W.2d 843 (CCA), no writ hist.

Our problem is to determine whether the evidence will support the trial court’s findings that the lease that was signed by appellee was in fact signed by him on behalf of appellant and whether he had authority to sign such lease for appellant.

On July 24, 1962, appellant entered into a contract with Richard H. Weeks, who was there designated “General Agent”. The contract was to be effective August 1, 1962. The first section defined the scope of the agency. It provided that appellant appointed Weeks its “General Agent to procure, personally and through agents, applications for policies on the lives of persons satisfactory to the Company, and to collect premiums on such policies and remit same to the Company; all subject to the provisions hereof.”

Section One (c) provides for termination of the agency at any time upon thirty days’ written notice by either party.

Section Eight (a) provides: “The authority of the General Agent to act for the Company is expressly limited by the provisions of Section One (a), and no extension thereof shall be implied from any grant or denial of authority herein contained. * * ”

There is a provision in the contract for an office allowance reading as follows:

“During the continuance of your agency, but not for more than 24 full calendar months, the Company will make you a Monthly Office Allowance as specified below. This allowance is based upon the stated paid-business requirements as determined by Home Office records — Quota Club basis. It may be reduced or discontinued by the Company at any time * * * ”

There follows a schedule showing the amount of the office allowance based on the amount of paid-business. For instance, the allowance per month from August 1, 1962 to January 1, 1963, a five months’ period, would be $375.00, based on paid-business of $525,000.00. The monthly allowance from January 1 to July 31, 1963, would be $300.00 based on paid-business of $975,000.00. The monthly allowance from July 31, 1963 to January 1, 1964, was $225.00 based on $1,500.00 paid-business, and the monthly allowance to July 31, 1964 was $150.00.

There were various instruments introduced as exhibits, but they all, taken together, constitute the contract of employment. We only notice that they deal with a “supervisory allowance, persistency fees, new organization and quota allowances, and office allowance.”

On September 1, 1962, the lease was executed. It was for a period of three years at a rental of $218.00 per month. The American Capitol Insurance Company is called “Lessor” and Richard H. Weeks and Associates are called “Lessee”. It is signed by the Lessor. Appellee signed the lease in this manner:

By: Richard H. Weeks_
Richard H. Weeks, Tenant
General Agent”

Signing the lease as a witness was W. J. Hadlick, who was Regional Manager for appellant.

On August 1, 1962, a letter, which was a commitment for a lease, was addressed to American Capitol Insurance Company. It read in the part that is material to our inquiry as follows:

“The undersigned, Richard H. Weeks, General Agent, Minnesota Mutual Life Insurance Company of St. Paul, Minnesota, desires to lease not less than 500 square feet * * * of the new building addition * * * at 3130 Southwest Freeway; accordingly, it is hereby agreed between both of the undersigned parties that the above-mentioned space for which a building plat has been prepared will be leased * *

The lease was to be executed September 1. The letter commitment was signed by American Capitol Insurance Company as Lessor and in the following manner by the appellee:

By:_Richard H. Weeks
Lessee
_General Agent
Title

There was no witness signing the lease commitment, but Mr. Weeks testified Mr. Hadlick of the Minnesota Mutual Life Insurance Company was present when it was signed.

Mr. Weeks testified the General Agent’s Agreement was the only agreement he had with appellant. He stated he was hired as a full-time General Agent and representative and as such was expected to rent a space and they to provide the money to pay the rent. He stated appellant had rented the specific space for over ten years and he took it over, and he assumed it was permanent and nothing was said by appellant that led him to believe otherwise. There was no specific oral representation made that the lease would be executed in behalf of the appellant instead of his own behalf. He read the agency contract. Mr. Hadlick’s name was on the lease as a witness. Mr. Weeks pointed out to Mr. Hadlick before he signed the lease that it was in the name of Richard H. Weeks. Mr. Hadlick told him that was customary; that it was always the way it was done in the Houston agency. Mr. Hadlick went with him to look at the space and to sign the lease and approved the terms and conditions of the lease. Under the terms of the agency agreement he was to be paid an office allowance based on a percentage of the collections of the agency and the earnings. That was the only provision for the payment of rent. He could not afford to pay rent unless appellant furnished the money.

When examined specifically about Section Six of the Agency Contract, which we set out above, providing for a monthly office allowance, Mr. Weeks testified the amounts set out were not guaranteed sums but were based on the volume of paid-business. He said for the first twelve months there was a flat office allowance. He immediately then said the flat allowance under the agreement was for five months. After this short period when there was to be a flat office allowance anything paid was to be based on the production of the agency.

When Mr. Weeks was questioned about whether he had any explanation as to why the lease commitment was signed by him as General Agent for appellant but the lease was signed “Richard H. Weeks and Associates”, he stated he had no good explanation. He said he was aware when he signed the lease it provided Richard H. Weeks and Associates as Lessee. He also stated Mr. Hadlick was aware as to how the lease was signed. The sign on the office door carried the name of appellant, and beneath it was “Richard H. Weeks and Associates.” He, at the time, conducted business only for appellant.

Appellee voluntarily terminated his agency on October 11, 1963. Appellant occupied the premises for approximately a month thereafter. Appellee had paid the rent up to November 1. When appellant vacated the space, they closed the office. He had paid the rent out of the monthly allowance sent by appellant.

The $1,000.00 monthly advance, not the office allowance, was paid appellee for his being the full-time representative in Houston.

Mr. Weeks had given a deposition and parts of it were introduced in evidence. In this he testified he had no agreement or understanding other than contained in the written instruments (agency contract) introduced in evidence, dealing with an office allowance, expense or anything else. He stated he frankly assumed if anything came up that appellant would just have some kind of an agreement with the American Capitol Insurance Company about the rent. He assumed that until Mr. Hubbard of American Capitol called him. There was nothing in the lease or agency contract about any such arrangement. He stated it was his position that it was appropriate for appellant to pay off the lease whether there was any instrument obligating it to do so or not. He stated he didn’t contend appellant was supposed to pay on the basis of any written agreement. He further stated there was no oral representation one way or the other made by Mr. Hadlick or anybody else at the time of signing the agency contract or lease. He noticed the lease was drawn showing him to be the lessee and brought it up in front of Mr. Hadlick and Mr. Hadlick “said that was the way it should be, it was made up correctly.” This is as Mr. Weeks recalls it. He said he was aware it deviated from the lease commitment. He further stated that Mr. Els-ton, Vice-President and Director of Agencies, when they were discussing the agency contract, stated the office expense was to be paid from the funds provided for in the contract but nothing over and above what was provided for in the contract. The only thing he relied on was the contract.

Mr. Hubbard, representing the lessor, testified the lease was made out in the form in which it was signed at the request of Mr. Weeks, as he recalled, though the lease commitment was made in the form above noted. He could not recall any statement Mr. Hadlick made at the signing of the lease, though Mr. Hadlick was present.

We are of the view there is no evidence of probative force supporting the conclusion that the lease was executed for and on behalf of appellant or that even if it was intended to be so executed by Mr. Weeks, that he had any such authority.

The lease on its face designates “Richard H. Weeks and Associates”, the assumed business name of Mr. Weeks, as the Lessee. It is signed in the same name by Richard H. Weeks. Just below the signature in the assumed name was the designation of the capacity in which Richard H. Weeks and Associates was a party to the lease by the use of the term “Tenant”. Underneath this signature appears the signature “Richard H. Weeks, General Agent.” Nowhere in the lease is there any indication that the lease was executed on behalf of some undisclosed principal. The earlier lease commitment read in the body: “The undersigned, Richard H. Weeks, General Agent, Minnesota Mutual Life Insurance Company * * * desires to lease * * * ” This denotes that Mr. Weeks, individually, desired the lease. It is true the commitment is signed in the name of the appellant by Mr. Weeks, General Agent. It is also true that there is testimony that Mr. Hadlick was present, but there is absolutely no evidence he saw or otherwise knew its terms or had any authority to authorize any commitment. Then when the later lease was signed, Mr. Weeks called attention to the lease being made for him to sign and Mr. Hadlick stated that was the way it was to be. When Mr. Hadlick signed the lease it was purely as a witness. Too, in Mr. Weeks’ testimony he in effect stated his only authority was as contained in the agency contract. It nowhere confers, expressly or by implication, any authority for Mr. Weeks to bind appellant to any lease. In fact, under the terms of the agency contract, and Mr. Weeks’ understanding of it as testified to by him, there was nothing with regard to rental payable by the company except as we have above stated. It was not for a fixed amount except for five months, but was to be based on paid-business of the agency. It was fixed for the first five months because it could not be known what the paid-business would be. While rental is not mentioned, appellee makes no contention it was other than a part of the office allowance. Too, it was cancellable at any time. Too, Mr. Weeks testified he just assumed appellant would have some arrangement to take care of the lease. No written or oral statement to that effect was made to him.

The trial court seems to have attached importance to the fact that under Mr. Weeks’ signature on the lease was the term “General Agent”. This term is merely descriptio personae and does not necessarily make it the contract of an undisclosed principal. Dorsey v. Rankin, 43 Ga. App. 12, 157 S.E. 876. Of course, parol evidence may be introduced to show it was in fact executed for the undisclosed principal. Here, however, there was no evidence to show this was the agent’s intent.

The term “General Agent” does not imply any general authority. As stated in the Restatement of The Law of Agency, Second: “A general agent is an agent authorized to conduct a series of transactions involving a continuity of service.” In the comment in Subdivision (e) there is stated: “The terms ‘general agent’ and ‘local agent’ have no fixed meaning in the business world. The general agent of an insurance company is ordinarily one who himself employs agents to carry out the business of the company * * * ” See also Missouri State Life Insurance Co. v. Boles, 288 S.W. 271 (CCA), writ dism.

Here Mr. Weeks was, under all evidence of probative force, not a general agent in the sense that his authority was unlimited. He was a general agent, under his agency contract, in the sense that he could employ other agents to take applications for life insurance, and he himself could. These would be submitted to the company for acceptance or rejection. His authority did not encompass creating an obligation on appellant to pay any rental except conditionally as above stated.

Reversed and rendered.


author: STEPHENSON, Justice.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Daniel A. McDANIEL, Appellee.
    No. 6855.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 22, 1966.
    Orgain, Bell & Tucker, Beaumont, for appellant.
    Lamson & Plessala, Port Arthur, for appellee.
   STEPHENSON, Justice.

Plaintiff’s motion for summary judgment was granted and plaintiff recovered judgment for exemplary as well as actual damages from defendant upon a statutory real estate broker’s license bond. The only question in this case is whether or not a surety can be held liable in exemplary damages upon such a bond because of actions of the principal, in which the surety did not participate.

The bond in this case is conditioned that the principal “shall pay any judgment recovered by any person in any suit for damages or injuries caused by violation of this act.” The amount of the judgment is within the limit of the surety bond. It is agreed that the surety did not participate in the action giving rise to the exemplary damages, other than the execution of the bond. The parties will be designated here as they were in the trial court.

We have been cited no Texas cases involving the precise point in question. Defendant urges this court to consider that there are no Texas cases where a surety on a bond has been held liable for exemplary damages, where the surety did not participate in the acts complained of other than executing the bond.

The cases, Faroux v. Cornwell, 40 Tex. Civ.App. 529, 90 S.W. 537; Hamilton v. Kilpatrick, Tex.Civ.App., 29 S.W. 819; and Mayer v. Duke, 72 Tex. 445, 10 S.W. 565, are cited as authority that a surety on an attachment bond required by Rule 592, Texas Rules of Civil Procedure, is not liable for exemplary damages. The cases, Morris v. Anderson, Tex.Civ.App., 152 S.W. 677 and McArthur v. Barnes, 10 Tex.Civ. App. 318, 31 S.W. 212, are cited as authority that a surety on a sequestration bond required by Rule 698, T.R.C.P., is not liable for exemplary damages.

The condition of the attachment bond under Rule 592, T.R.C.P., is that the principal will pay all such damages and costs as shall be adjudged against him for wrongfully suing out such attachment. The condition of the sequestration bond under Rule 698, T.R.C.P., is that the principal pay all damages and costs in such suit in case it shall be decided that such sequestration was wrongfully issued.

Plaintiff argues that the present case is not similar to the sequestration and attachment cases because the present bond says “any judgment recovered”, while the attachment and sequestration bonds say “all damages and costs”.

We find no valid distinction between the coverage under the bond in the present case and the sequestration and attachment bonds, as to exemplary damages. We do not think the words “any judgment” were intended to define the coverage under the Real Estate Broker’s bond, but were intended to designate the condition of liability. That is, that a judgment must first be obtained against the principal before the surety becomes liable. The words “for damages or injuries caused by violation of this act” define the coverage. We find no more reason to hold a surety liable for exemplary damages under this bond than the sequestration and attachment bonds. We feel that we are compelled to follow the precedence set in those cases cited to us.

The judgment of the trial court is reformed to eliminate the recovery for exemplary damages, and as reformed, is affirmed.


author: MASSEY, Chief Justice.

text:
    Frank SCOTT, Appellant, v. Doyle SCOTT, Appellee.
    No. 16762.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 21, 1966.
    Rehearing Denied Nov. 18, 1966.

      Lattimore & Lattimore and Hal M. Latti-more, Fort Worth, for appellant.
    Elvin E. Tackett, Fort Worth, for ap-pellee.
   OPINION

MASSEY, Chief Justice.

The question posed is whether after its former divorce judgment becomes final a trial court may render judgment nunc pro tunc altering its provisions on the division of property wherein the former wife was “invested” with title to the cash surrender value of a policy of insurance upon the life of the former hubsand, granting instead a personal judgment in favor of the wife against the husband for the money equivalent of the surrender value.

Our holding is that the mistake, if any, could not be clerical, or within the classification of “clerical errors” subject to correction by a judgment nunc pro tunc, and that any attempt to do justice by procedure under such theory must be reversed.

After taking under advisement the matter of property division the trial court wrote the parties stating:

“Gentlemen:

“I am dividing the community property of the parties as follows:

“To Defendant, Doyle Scott, (1) the home and all furnishings located therein; * * * (9) cash surrender value of Mr. Scott’s N.S.G. life insurance policy. (10) six cemetery lots.

“All other property to Plaintiff, Frank Scott. * * *

“Very truly yours.”

Material portion of the judgment thereafter entered read:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following denominated real and personal property standing in the name of Frank Scott or Doyle Scott be, and the same is hereby, awarded to Doyle Scott for her sole and separate use and benefit and any and all interests ever possessed in said property by Frank Scott is hereby divested out of the said Frank Scott and full fee simple title is hereby vested and quieted in Doyle Scott, to wit:

"* * * (j) The cash surrender value in the amount of $4,672.00 of one N.S.G. life insurance policy on the life of Frank B. Scott in the face amount of $10,000.00.”

In the judgment nunc pro time the material portion of the recitals read:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the here-inabove enumerated sub-paragraph (j) in Judgment of the Court * * * be and the same is, hereby deleted and omitted from the said Judgment, and the following Order and Judgment shall be entered in lieu thereof:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant Mrs. Doyle Scott do have and recover of and from the Plaintiff Frank Scott, the sum of: FOUR THOUSAND FOUR HUNDRED SIXTY TWO AND 70/100 DOLLARS, ($4,462.70).”

From the foregoing it is apparent that the trial court first rendered its judgment in rem as applied to the cash surrender value in the policy in question. It is not a matter of dispute between the parties that it was subsequently discovered that under the judgment said surrender value of the policy could not readily be reached and made available to Mrs. Scott. Hence the change made whereby she was by order nunc pro tunc granted a judgment in per-sonam for its money equivalent.

Although it is evident that the trial court originally intended for Mrs. Scott to have an amount in money which would be the equivalent of the cash surrender value of the insurance policy, having gone so far as to “invest title” thereto in her (with such treated as a fund or property), it could not reasonably be found in the language of the judgment or anywhere in the original record that there was any intent to incorporate any recitation giving her a personal judgment.

In the condensed statement of facts it is stated: “Whereupon, the Court announced that it had been the Court’s intention in the original proceeding for divorce to award Doyle Scott a money judgment against Frank Scott in the amount of the cash surrender value. * * * ” However, for purposes of our decision of proper action on the instant appeal from the judgment nunc pro tunc the question is not determinable by the intention which the court might have had but failed to express, but the intention which by the judgment was expressed. There is no ambiguity warranting resort to rules of construction.

A proceeding under a motion for judgment nunc pro tunc has as its only purpose to have the judgment entry speak truly the judgment as rendered, and neither asserts nor seeks the enforcement of any new right. It presents no issue between the parties except in respect to the accuracy of the record, and otherwise involves the adjudication of nothing between them. It is powerless to reopen the controversy as closed and sealed by the judgment, and makes no such attempt. The inquiry is not what judgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). Under such rules of law we believe any right to change the judgment in the respect here attempted would be foreclosed.

It is to be noticed from what has been said that the correct cash surrender value of the insurance policy was $4,462.70 rather than the $4,672.00 recited in the original judgment. That fact is conceded by the parties to the appeal and was made part of the record in the trial court on the motion for judgment nunc pro tunc. This was a clerical error and a proper matter for correction by such a judgment. However, it was not corrected.

Reversed and rendered.


author: HIGHTOWER, Chief Justice.

text:
    Clarence A. DORMAN, Appellant, v. Frank J. MALLOY, Appellee.
    No. 6859.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 20, 1966.
    Rehearing Denied Nov. 9, 1966.
    John L. Fulbright, Beaumont, for appellant.
    DeLange, Hudspeth, Pitman & Katz, Houston, Louis Dugas, Jr., Orange, for ap-pellee.
   HIGHTOWER, Chief Justice.

Appellee, Frank J. Malloy, brought this action against the appellant, Clarence A. Dorman, for an injunction enjoining him from removing a fence situated on a portion of the property in controversy. Appellant counterclaimed for partition alleging that the parties hereto were co-tenants in the property. The appellee answered such cross-action by a general denial, a plea of “not guilty”, and by setting up the various statutes of limitation, claiming to be sole owner of the property described in such answer and cross-action. Appellee filed motion for summary judgment setting up his claim under the ten year statute which motion was supported by affidavits of himself and his predecessor in title, as well as excerpts from the deposition of appellant. Appellant filed answers aforesaid and his affidavit along the lines suggested by his answer in denying appellee’s claims.

Was there a fact issue as to adverse possession raised by the instruments above mentioned? We hold that there was and that the judgment in favor of appellee must be reversed. Appellee’s sworn motion for judgment and attached affidavits set out all the necessary requirements of Articles 5510, 5514 and 5515, Vernon’s Ann.Civ.St., to establish a claim of peaceable adverse possession under the ten year statute. In reply, appellant’s affidavit alleged, among other things, that he was owner of an undivided interest in the property in controversy and that neither appellee nor his predecessor in title had ever claimed any of the property adversely to him or his predecessor in title until recently, thus raising a fact issue which was not the province of the trial court to decide under motion for summary judgment.

Although the excerpts from appellant’s deposition can be construed as indicating that he had received notice of the nature of appellee’s adverse claim and a repudiation of his alleged co-tenancy, if any, at a time well in excess of ten years prior to the institution of this action, such deposition was not binding upon him. It could be repudiated or contradicted on trial of the case, as it was properly contradicted in his affidavit aforesaid. As stated by Chief Justice W. O. Murray of the San Antonio Court in City of Corpus Christi v. McCarver, Tex.Civ.App., 253 S.W.2d 456:

“ * * * Ordinarily parties are entitled to cross-examine witnesses and test their opportunity to know what they profess to know, * * * It was never the intention of the summary judgment provition, Rule 166-A, T.R.C.P., to permit a party to establish his case by ex parte affidavits and thus permit his witnesses to escape cross-examination. Neither was it intended that a summary judgment hearing should become a battle of affidavits. It is only where it is shown that no genuine issue of fact exists in a case, that a summary judgment is proper.”

Appellant’s affidavit alone raised an issuable question of fact as to appellee’s claim. It was not the trial judge’s prerogative to determine the credibility of his statements in his deposition or his affidavit.

“Resort to the remedy of summary judgment where there is any doubt is futile because of the abundance of authority to the effect that all doubts must be resolved against the moving party, the practice must be exercised with great caution, and litigants must be accorded the right to final trial if there is the slightest doubt as to the existence of a fact issue. Rule 166-A can be made to fulfill its purpose if it is invoked only in appropriate cases, and these are just not very numerous. Penn v. Garabed Gulbenkian, Tex.Civ.App., 243 S.W.2d 220, 223. (Affirmed, Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.)” Osborne v. Dean, Tex.Civ.App., 359 S.W.2d 550.

Judgment reversed and remanded.