text:
    Ex Parte Howard B. STICKNEY.
    No. 34220.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1961.
    Bob Looney, Brooks N. Holman and Charles Burton, Austin, for appellant.
    Frank Briscoe, Dist. Atty., Sam H. Robertson, Jr., and Neil McKay, Asst. Dist.

      Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

This is a habeas corpus proceeding in behalf of Howard B. Stickney, under sentence of death pronounced in Harris County and affirmed by this Court. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133, certiorari denied, 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151.

The writ was issued by Hon. E. D. Salinas, Judge of the 111th Judicial District •Court and made returnable before this Court. Judge Salinas heard the application in Webb County after he was requested to do so by Hon. Cullen W. Briggs, of Nueces County, whose eleventh hour order stayed the execution set for June 10, 1961.

Unlike previous applications and appeals in his behalf, the question here presented is not related to the guilt or innocence of the petitioner, or to any contention that he did not receive a fair and impartial trial, or to any claimed error in the trial.

Judge Salinas aptly states that the ground relied upon to stay the execution is “a legal technical ground”. It relates only to the fixing of the date for the execution of the death warrant.

Art. 798 Vernon’s Ann.C.C.P. provides that a sentence of death “shall be executed at any time before the hour of sunrise on the day set for the execution * *

Petitioner argues that by reason of this provision “execution day is over and past when the sun rises on the date set for an •execution.”

He contends that the Governor was deprived of authority to set a new date for the execution because of the stay granted by Judge Briggs and because no reprieve was recommended by the Board of Pardons and Paroles before sunrise on June 10, 1961; that a new date for the execution could be set only by the sentencing court, and that said court could not set a day less than 30 days from the day of such re-sentencing.

Petitioner’s contentions are without merit.

Art. 956 V.A.C.C.P. provides that the Governor may “reprieve and delay the execution of the penalty of death to any day fixed by him in the warrant to the proper officer, and such warrant shall he executed and returned to the proper court as if it had been issued from such court.”

Pursuant to said statute, and upon recommendation of the Board of Pardons required under the constitution, the Governor delayed the execution to June 10, 1961, and on that date by further reprieve fixed a new date.

We find no merit in the contention that the reprieve granted on June 10, 1961 was void because the Board of Pardons and Paroles did not recommend and the Governor did not grant said reprieve before sunrise, nor do we agree that the stay granted by Judge Briggs, on the application of petitioner, less than an hour before the day of execution began, deprived the Governor of authority to fix a new day for the execution of the death warrant.

The order of Judge Salinas staying the execution is set aside and the relief prayed for by petitioner is denied.

No motion for rehearing will he entertained.

The Clerk is directed to issue mandate forthwith.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Eloy SOLIZ, Appellant, v. STATE of Texas, Appellee.
    No. 33817.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    Werner A. Gohmert, Alice, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.

   McDonald, judge.

This is an appeal from an order revoking probation.

On April 1, 1959, upon his plea of guilty, appellant was convicted of the offense of burglary, and his punishment assessed at confinement in the penitentiary for a term of three years. The imposition of sentence was suspended and appellant was placed upon probation.

On February 15, 1961, the district attorney filed an application to revoke the probation, alleging that appellant had violated the terms of the probation order in committing the act of burglary and that he had also failed to contribute to the support of his minor child.

On March 6, 1961, the court ordered the probation revoked, and sentenced appellant to serve according to the original judgment.

The testimony reflects that the retail store of Fritz Vandiver was burglarized on January 13, 1961.

Guadalupe Limón, Jr., testified that he the appellant, and Juan Soliz went to the liquor store; that Juan Soliz and appellant broke down the door and the three of them took two cases of wine and one case of whisky from the store and “headed” for the railroad tracks and San Diego Creek, where they left the cases of liquor; that they walked on and some distance away the highway patrol stopped them for identification; that he (Limón) then started home, accompanied by his companions, when Officer Garcia stopped them.

The officer testified that the boys had been seen hanging around the liquor store that night; that when he saw them their trousers were wet from the knees down.

Appellant’s wife testified that she was divorced from him; that there was one child born of the marriage; that appellant contributed nothing to its support.

The judgment of divorce was introduced. A deputy district clerk testified that no support payments had been made into the registry of the court.

Appellant contends that the evidence is insufficient to support what he termed the implied finding of the court that he committed the offense of burglary.

The only evidence adduced before the court on the hearing for revocation of probation which connects appellant with the offense of burglary is the testimony of Guadalupe Limón, Jr., an accomplice or co-principal. There is no evidence corroborating his (Limon’s) testimony which tends to connect appellant with the act of breaking and entering the liquor store.

Appellant further contends that the evidence is insufficient to support “the implied finding of the court that [he] failed and refused to contribute to the support of his minor child.”

Appellant cites no authority to support his first contention as to the lack of corroborating testimony to support the evidence of the accomplice, Guadalupe Limón, Jr., but he relies, rather, upon Art. 718, CG.P.

While that article provides that “A conviction cannot be had upon the testimony of an accomplice unless corroborated * * *,” this statutory provision has no application to proof of the violation of a penal statute upon a review of probation hearing. 'The result of such hearing is not a “conviction” but a finding upon which the trial court may exercise his discretion by revoking or continuing the probation. Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589.

We held, in Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, that a proceeding to revoke probation is not a criminal trial.

On appeal, the review of proceedings in a probation hearing will be limited to a determination of whether or not the trial judge abused his discretion in revoking the probation. Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317.

We further find that the proof that appellant failed to make the child support payments is sufficient cause for revocation of probation.

The judgment is affirmed.


author: BARROW, Justice.

text:
    Josephine A. EHLERS et al., Appellants, v. DELHI-TAYLOR OIL CORPORATION et al., Appellees.
    No. 13826.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 25, 1961.

      Hall, Rawlins & Hall, Edinburg, Ewers, Toothaker, Ewers, Elick, Jones & Abbott, McAllen, for appellants.
    Turner, White, Atwood, Mecre & Francis, C. Sidney McClain, Dallas, Chas. E. Thompson, F. E. Butler, McAllen, for ap-pellees.
   BARROW, Justice.

This is a suit in trespass to try title originally brought by Delhi-Taylor Oil Corporation and Mayfair Minerals, Inc., against Josephine A. Ehlers and other persons named in plaintiffs’ petition, as heirs at law of Ed Koch, and also Jack Butler. The suit involved the title and possession of the oil,, gas and other minerals in and under a certain 3.36 acre tract of land hereinafter described. By amended petition L. W. Shaffer was made a party defendant. Plaintiffs-relied upon the record title in themselves from the stipulated common source of title. They also plead the three, five, ten and twenty-five year statutes of limitation. The defendants all filed pleas of not guilty, and the heirs of Koch and Jack Butler filed a cross-action wherein they claim title to .21 acres out of the west end of said 3.36 acre tract, the Koch heirs claiming as owners, and Jack Butler claiming the oil, gas and other minerals as lessee of said Koch heirs. It was agreed that H. J. Ashberger is the common source of title, being evidenced by warranty deed from said Ashberger to Ed Koch, dated February 9, 1925, and duly recorded. The trial was to the court without a jury. Judgment of the court was for the plaintiffs. No findings of fact or conclusions of law were requested or filed. A copy of a plat which shows the tract of land in controversy, introduced in evidence by defendants as their Exhibit 1, is hereto attached. The original recorded plat shows no line between the .21 acres claimed by defendants and the remainder of the tract.

Appellants predicate this appeal upon five points. By Point No. 1, they contend that there is no evidence to support the judgment because, as a matter of law, the deed from Ed Koch to C. W. Moehnke et ux., to Leigh W. Shaffer conveyed only the East 562 feet of the 3.36 acres involved and did not convey the West .21 acres of said 3.36 acres.

In proving their record title, appellees offered in evidence the deed from H. J. Ashberger to Ed Koch, dated February 9, 1925; the deed from Ed Koch to C. W. Moehnke, dated December 9,1925; the deed from C. W. Moehnke et ux. to Leigh W. .Shaffer, dated December 24, 1927; and the oil, gas and mineral lease from L. W. Shaffer et ux. to Coastal Refineries, Inc., and Mayfair Minerals, Inc. It was stipulated that appellees now own such minerals. The deed from Ashberger to Koch described the property conveyed, as follows:

“First Tract: All of that portion of Lot No. Seven (7), Block No. Eleven (11), of the subdivision of Porciones 71 and 72 lying north of Lateral ‘E’, containing 3.36 acres of land, more or less.
“Second Tract: 16.70 acres of land, more or less, being the East 562 feet of Lot No. (6) in Block No. Eleven (11), and the East 562 feet of Lot No. Seven (7) in Block No. Eleven (11) lying north of the canal, all of said land being out of the subdivision of Por-ciones 71 and 72 in Hidalgo County, Texas, according to the map or plat of such subdivision as the same appears of record in the office of the County Clerk of Hidalgo County, Texas;
“Second Tract above described being the same conveyed to H. J. Ashburger by John Closner and William F. Sprague by deed dated the 9th day of December, 1911, recorded in the Deed Records of Hidalgo County, Texas, in Volume ‘29’ on pages 137-139 thereof.”

The deed from Koch to Moehnke described the property as follows :

“Twenty and 06/100 (20.06) acres of land, more or less, being that portion lying North of Latteral E, containing approximately Three and 36/100 (3.36) acres of land in lot Number Seven (7) in Block Number Eleven (11) of a certain survey and certain resubdivision of certain lands embraced in Porcion 71, Narciso Cavasas original grantee and Porcion 72, Jose Maria Balli, original grantee, in said County of Hidalgo, State of Texas, as shown by the map or plat of such subdivision as the same appears of record in the office of the County Clerk of Plidalgo County, Texas; and Sixteen and 70/100 (16.70) acres of land, more or less, being the East Five Hundred Sixty-two (562)
feet of Lot Six (6) in Block Eleven (11) and also the East Five Hundred' Sixty-two (562) feet of Lot Seven (7) in Block Eleven (11) lying north of the Latteral out of a certain survey and1 certain resubdivision of certain lands embraced in Porcion 71, Narciso Ca-vasas original grantee, and Porcion 71. Jose Maria Balli, original grantee, in said County of Hidalgo, State of Texas, containing Twenty and 06/100 (20.06) acres of land, more or less.”

The deed from Moehnke to Shaffer followed substantially the description in the deed from Koch to Moehnke. Appellees also introduced, for the limited purpose of explaining the descriptions in the above-mentioned deeds, the deed from John Clos-ner et al. to H. J. Ashberger, dated December 9, 1911; the deed from John Closner et al. to Ralph R. Langley, dated March 1, 1913, which deed stated that it was understood that the deed was to clear the description in the deed from Closner et al. to Ash-berger, executed on Dec. 9, 1911, and in the deed from Closner et al., to J. Thompson, executed on Jan. 20, 1912. The deed from Closner to Langley conveys the entire 3.36 acre tract. Appellees then introduced the deed from Ralph R. Langley to H. J. Ash-berger, which also conveyed the entire 3.36 acre tract. It is, therefore, obvious that in the conveyance from Ashberger to Koch the entire 3.36 acre tract is conveyed as the “First Tract” just as it is described in the deed from Langley. Then, as the “Second Tract” the description in the deed from Closner to Ashberger is copied, which conveys the tract of 16.70 acres out of Lot No. 6, and the East 562 feet of the 3.36 acre tract. This deed had the effect of conveying, first the whole of the 3.36 acre tract, and then the additional conveyance of only the East 562 feet thereof. We think it is clear that the subsequent conveyance of only a part of a tract which had already been conveyed as a whole may be regarded as mere surplusage. Appellants contend that the conveyance of the 562 feet off the east side of the tract is a more specific description of the tract conveyed and prevails over the first description. We do not so regard it. One of these descriptions is no more specific than the other. We think it is clear from the deed and the language used therein that the second description was not intended as a lessening or limitation of the land clearly conveyed in the first description. Again, we fail to see how appellants can contend that title to the entire 3.36 acre tract passed to Koch under the Ashberger ■ deed, and at the same time contend that title thereto did not pass from him to Moehnke, and in turn to Shaffer. A reading of the descriptions hereinabove set out do not indicate enough difference to justify that contention. We are of the opinion that good record title to the entire 3.36 acre tract was in L. W. Shaffer.

By Point No. 2, appellants contend that there is no evidence to support an implied holding that appellees have good title under the twenty-five year statute of limitations; by Point No. 3, they contend that there is no evidence to support an implied finding that appellees have good title under the ten-year statute of limitations; and by Point No. 4, that there is no evidence to support an implied finding that appellees have good title under the five-year statute of limitations. In passing upon these points we must consider only the evidence which supports the implied holdings and disregard all evidence to the contrary.

Appellees’ suit was filed July 6, 1960. On May 17, 1960, L. W. Shaffer and wife conveyed to appellants, Koch heirs, by quitclaim deed, a tract of .26 acres of land out of the west part of the 3.36 acre triangular tract, beginning 562 feet from the northeast corner thereof. On April 19, 1960, said appellants, Koch heirs, executed an oil, gas and mineral lease to appellant Jack Butler, leasing to him the .26 acre tract.

Appellant L. W. Shaffer testified as a witness for appellants. His testimony shows that in the year 1927, shortly after he purchased the land, he moved on the tract and continued to live thereon until about two years before the trial. He testified that as early as the year 1929 he planted fruit trees on the most westerly end of the tract, being the .21 acres claimed by appellants; that he gathered and used all the fruit from these trees during all the years he lived there, and received all the benefit therefrom; that no other person gathered or received any of such fruit; that he cultivated, used and enjoyed the entire 3.36 acre tract during all those years. He further testified that he paid taxes on the entire 3.36 acre tract. He did testify that he thought he bought only the east 562 feet of the 3.36 acre triangle, but admitted that he claimed all his deed called for. The record shows that he paid the taxes as they accrued on the entire 3.36 acre tract, continuously from 1930 to 1960, both inclusive. The oil, gas and mineral lease from Shaffer and wife under which appellees claim is dated January 10, 1949. Since that date ap-pellees have paid all taxes due against the mineral estate, and have paid such taxes as they accrued, for more than five years after actual production began, prior to any adverse claim by appellants. Appellees’ lease was filed for record February 5, 1949. L. W. Shaffer’s deed was filed for record January 28, 1929. Thus it is apparent that there is evidence to support the trial court’s implied finding of title in appellees and those under whom they claim, under the five, ten and twenty-five year statutes of limitation. See articles 5509 et seq., Vernon’s Tex.Civ.Stats.

By Point No. 5, appellants contend that the description of the land in the lease from L. W. Shaffer and wife to Coastal Refineries, Inc., and Mayfair Minerals, Inc., is ambiguous and so indefinite as to be void. We overrule that contention. The description in said lease is as follows:

“ * ⅜ * the following described land in Hidalgo County, Texas, being a part of. the John Closner et al Subdivision of Porciones 71 and 72, as per map thereof recorded in the office of the County Clerk of Plidalgo County,
Texas, the tracts hereby leased described as follows:
“The East 16.83 acres of Lot Six (6) in Block Eleven (11) of said Subdivision, AND
3.26 acres more or less out of the north part of Lot Seven (7) in Block Eleven (11) of said Subdivision, said 3.26 acres lying north and east of Lateral ‘E’ in said Lot.
“For the purpose of calculating the payments and royalties hereinafter provided for, said land is estimated to comprise 20.09 acres, whether it actually comprises more or less.”

It is clear from the language of the lease as a whole that the 20.09 acres covered is made up of the 3.36 acre tract, out of Lot No. 7 and lying north of Lateral “E”, and the 16.83 acres out of Lot No. 6, all known as Shaffers’ home place. The record shows that the 3.36 acre triangle is the only land in Lot 7 which lies north and east of Lateral “E”. These facts were in existence at the time the lease was made. The lessee paid annual rentals on the entire leased acreage. Shaffer, by instrument duly executed and recorded, recognized, adopted, ratified and confirmed the lease of such acreage in a change of depository for rentals. Likewise, in a division order asserting his ownership of royalties on the 20.09 acres of land, Shaffer again so recognized and confirmed the acreage leased, and designated said acreage as his “home place.”

The designation of the acreage in the 3.36 acre triangle has been stated in various ways in the chains, of title. In various conveyances the entire triangle is described as containing 3.36 acres, and in the same deeds the whole tract, including the triangle and the 16.70 acres in Lot No. 6, is described as containing 20.06 acres, the same acreage called for in the lease, except that the part in Lot No. 6 is designated as containing 16.83 acres rather than 16.70 acres. In the quitclaim deed from Shaffer to Koch heirs, the portion claimed by appellants is described as containing .26 acres, and in the lease from Koch heirs to Jack Butler it is also so described, whereas, in their pleadings appellants claim a strip containing only .21 acres. Moreover, the acreage called for has been unitized with other lands, and appellees have been regularly paying the royalty, and Shaffer has been receiving his proportion thereof, upon the 20.09 acres out of the home place. We think, under all the facts in evidence, it is apparent that the entire 3.36 acre tract was leased, and the statement therein calling for 3.26 acres, more or less, is not fatal to the description so as to make the conveyance void.

The rules of construction of such conveyances have been stated in Miller v. Hodges, Tex.Com.App., 260 S.W. 168, 170, wherein the Court said:

“In 8 R.C.L. p. 1074, it is said:
“ ‘The sole purpose of a description of land, as contained in a deed of conveyance, being to identify the subject-matter of the grant, a deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey.’
“This general rule has been many times stated by our courts. The extrinsic evidence which is admissible must not be for the purpose of adding to or modifying the description contained in the deed, but is for the purpose of explaining the calls in the deed and applying them to the subject-matter, and thus give effect to the deed. The general rule may be stated in this way: The description in a deed or contract, while it need not in itself fully and definitely identify the property conveyed, must contain sufficient particulars to afford or point out the means whereby identification may be completed by parol evidence.
“In 18 C.J. 277, this rule is announced :
“ ‘The intent of the parties, as manifested by the language of the deed, will, as a general rule, control in determining the property conveyed, and in case of ambiguity or uncertainty the language of the description will be liberally construed in order to effectuate, if possible, such intention.’
“In ascertaining this intention, in cases of doubt, the court will consider all of the facts and circumstances existing at the time the parties contracted, and will as nearly as possible assume their position, so as to interpret their language in the light of the circumstances as they were when the transaction was made. The following quotation has been adopted by the courts for many years;
“ ‘The rule is that where the writing within itself, or by reference to other writings, contains sufficient data so that by the aid of parol evidence no question as to the intention of the parties can arise, it is sufficient. The most specific and precise description of the property requires some parol proof to complete the identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and their relations to each other and the property, as they were when the negotiations took place and the writing made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement.’
“It is also a well-established principle that, if the words used in the description of a deed are uncertain, resort may be had to the construction given them by the parties themselves; and, where they have given same a practical construction and made them applicable to certain property, this will be a strong circumstance in ascertaining their intention. See 18 C.J. 279, and authorities cited.”

These rules have been followed in similar situations in the following cases: Chapman v. Crichet, 127 Tex. 590, 95 S.W. 2d 360, 96 S.W.2d 64; Gramm v. Coffield, Tex.Civ.App., 116 S.W.2d 1089; Thompson v. Kansas City Life Ins. Co., Tex.Civ.App., 102 S.W.2d 285; Rhoden v. Bergman, Tex. Civ.App., 75 S.W.2d 993; Callahan v. Walsh, Tex.Civ.App., 49 S.W.2d 945. Moreover, the rule in Texas is that a deed is not void for uncertainty of description unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land. Where the deed affords some data susceptible of being connected, by parol testimony, with some definite land, the description is in law sufficient. 14 Tex. Jur. 998, Deeds, § 201.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Frank R. GOELZ et al., Appellants, v. J. K. & SUSIE L. WADLEY RESEARCH INSTITUTE & BLOOD BANK, Appellee.
    No. 15871.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1961.
    Rehearing Denied Oct. 27, 1961.

      Fred Harless, Henry Smith, and Rosen-field, Berwald & Mittenthal, Dallas, for appellants.
    Burford, Ryburn & Ford, Bruce Graham and Clarence A. Guittard, Dallas, for ap-pellee.
   DIXON, Chief Justice.

Appellants Frank R. Goelz, individually and as next friend of his minor child Frank R. Goelz, Jr., and C. W. Turner, Guardian of Carol Ann Goelz, brought this suit against appellee J. K. & Susie L. Wadley Research Institute and Blood Bank, hereinafter called Blood Bank, for damages in the amount of $451,000 because of the death of Mary Lou Goelz, wife of Frank R. Goelz and mother of the two minor children.

Appellants allege that following an operation for a spinal fusion, Mary Lou Goelz was administered a blood transfusion; that due to an error on the part of an agent and employee of the Blood Bank blood of a type “A1B” instead of Type “O”, her blood type, was administered to Mary Lou Goelz; and that as a proximate result of said error Mary Lou Goelz died.

Appellee Blood Bank defended on the grounds that it is a charitable organization and is therefore immune from liability for the negligence of its servants, agents and employees.

At the conclusion of the testimony the court sustained appellee’s motion for instructed verdict and judgment was accordingly entered in favor of appellee that appellants take nothing by their suit.

The material facts are undisputed. The Blood Bank is a charitable corporation organized in 1951. Its charter recites that it is a non-profit corporation without capital stock with $5,000 on hand at the time of organization, and with the expectation that additional monies and properties will be acquired to further the purposes for which it was formed.

The charter further recites that the corporation was formed for charitable, scientific and educational purposes to achieve which the corporation is authorized (a) to provide a clinic and facilities for patients suffering from diseases or conditions which are the subject of research by the foundation ; (b) to promote, provide for and assist in the establishment, support, maintenance and operation of facilities for the manufacture of serums, blood products or other products developed in the conduct of medical research; (c) to provide for the establishment, maintenance and operation of a blood center; (d) to make sales or donations of serums, blood, blood products or other products manufactured or acquired by said corporation; (e) to apply for and secure patents necessary in the corporation’s research operations and to sell or assign same; (f) to provide for or assist in establishment, maintenance and support of a teaching program for technicians in the field of medical science; (g) to make awards, grant scholarships and publish papers, etc., connected with research operations ; (h) to assist other institutions in the accomplishment of purposes for which.the corporation was formed; (i) to solicit, accept and receive by gift, transfer, subscription, donation or bequest money and property, and (j) to acquire and own real and personal property.

The uncontradicted testimony is that the activities of the corporation have expanded until at the time of trial it had about 100 employees. Except for salaries paid to these employees, no one receives any money personally from the operation of the Blood Bank. All funds received by the corporation are used for operation of the Blood Bank, for teaching, and for scientific work.

The Blood Bank supplies blood to persons estimated to number between 20,000 and 30,000 each year. It is also engaged in an extensive research program on problems related to blood transfusions, blood coagulation, and other fields related to blood and diseases thereof. The corporation receives donations of blood and of money. Some of its researches are financed by grants from various agencies and foundations, including the United States Department of Public Health

It is the custom of the Blood Bank to charge $30 per pint for blood furnished unless a relative, friend or some other person donates blood to replace the blood used. In the latter event no charge is made for the blood used. The evidence shows that in several instances the Blood Bank has brought suit against blood users who failed to pay their accounts for blood used.

In the case now before us the personal physician of Mary Lou Goelz left an order for the Blood Bank to type and cross-match her blood and to have 500co of blood available for surgery the following morning. In compliance with said order an employee of the Blood Bank took a sample of the patient’s blood, labeled it with her name and room number and carried it to the Blood Bank center. Mary Lou Goelz’s blood was type “O”. Unfortunately a technician whose duty it was to type and cross-match the patient’s blood, filled in type “A1B” on Mrs. Goelz’s card. Accordingly, the latter type of blood was sent to the Hospital and was used in the transfusion. Mary Lou Goelz had an unfavorable reaction from the transfusion. Investigation disclosed that the Blood Bank’s employee had failed to use the correct sample of blood, that is, blood from the body of Mary Lou Goelz, when he ran his test and recorded the blood type on Mary Lou Goelz’s card. The consequences were fatal.

Opinion

In their first two points on appeal appellants allege that (1) where it is admitted that appellee was negligent in selling blood which proximately caused the death of Mary Lou Goelz and where it is admitted that one of the appellee’s corporate purposes was to sell blood, appellee is not entitled to immunity from liability as a charitable organization; and (2) where the great preponderance of the evidence showed that appellee was engaged in a commercial activity and while so engaged, its negligence, through one of its employees, proximately caused the death of Mary Lou Goelz, appellee is not entitled to immunity as a charitable corporation.

In support of its assertion that appellee was engaged in a commercial activity, appellants rely on the charter provision designated as (d) earlier in this opinion, and on the fact that appellee charges $30 per pint for blood and has been known to sue users for failure to pay their accounts. In support of their contention that these facts render the Blood Bank liable for damages though it may be a charitable organization, appellants rely, among others, on these authorities : City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935; Coefficient Foundation v. Kennedy, Tex.Civ.App., 188 S.W.2d 694; City of Houston v. Scottish Rite Benevolent Ass’n, 111 Tex. 191, 230 S.W. 978; Armendarez v. Hotel Dieu, Tex.Civ.App., 145 S.W. 1030; and Hotel Dieu v. Armendariz, Tex.Civ.App., 167 S.W. 181, affirmed Tex.Com.App., 210 S.W. 518.

We see no merit in appellants’ contentions under their first and second points. The cases relied on by appellants are to be distinguished from the present case. For example, Coefficient Foundation v. Kennedy, supra, was a suit for damages for wrongful eviction from a rooming house. Though the defendant’s charter showed it was incorporated for charitable purposes the trial court found as a fact that defendant had never functioned according to the purposes set out in its charter. The Fort Worth Court of Civil Appeals said it was “not inclined to give the ‘Coefficient Foundation’ the benefits vouchsafed to charitable institutions when it has never engaged in charity or benevolences of any kind in so far as the record shows, * * * ” [188 S.W.2d 698],

In the Armendariz cases, also relied on by appellants, a servant, agent and employee of a charitable organization operating a laundry was injured while operating dangerous equipment. The sole ground of negligence relied on to sustain the judgment was that defendant failed to instruct the employee in the use of a mangle machine and warn her of the dangers incident to its operation. The charitable organization was held liable, but there is no analogy between the facts and holding in the Armendariz cases and the instant case.

The holding which must control our decision here is that of our Supreme Court in Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749, wherein it is said that sound public policy demands that charitable corporations be held immune from liability for the torts of their agents. See also Penaloza v. Baptist Memorial Hospital, Tex.Civ.App., 304 S.W.2d 203; Baptist Memorial Hospital v. McTighe, Tex.Civ.App., 303 S.W.2d 446; and Jones v. Baylor Hospital, Tex.Civ.App., 284 S.W.2d 929.

The fact that a charitable institution charges fees, or sells food or even tickets to sport spectacles, such as football games, does not brand such activities as commercial rather than charitable if, as in this case, the money so derived is devoted to the charitable purpose of the institution. Southern Methodist University v. Clayton, supra; Scott v. Wm. M. Rice Institute, Tex.Civ.App., 178 S.W.2d 156. In the latter case the particular operation, the playing of football, was actually conducted at a profit. See also 11 Restatement of Trusts, Secs. 368, 372.

In the instant case the furnishing of blood for transfusion was certainly in keeping with the main purposes for which the Blood Bank was organized. Under the circumstances of this case the instructed verdict was proper. Enell v. Baptist Hospital, Tex.Civ.App., 45 S.W.2d 395; Baylor University v. Boyd, Tex.Civ.App., 18 S.W. 2d 700; Barnes v. Providence Sanitarium, Tex.Civ.App., 229 S.W. 588.

Appellants contend that the rule of immunity should not apply in this case because Mary Lou Goelz was not a patient of the Blood Bank, but was a patient of Baylor Hospital. She was a stranger, so to speak, to the Blood Bank. This contention is rejected in the SMU case heretofore cited.

Appellants’ first two points on appeal are overruled.

In their third and fourth points appellants assert that in selling, delivering and furnishing blood pursuant to the order of Mary Lou Goelz’s physician, appellee was bound on broad principles of public policy by an implied warranty that such blood was compatible and fit to be transfused into the body of said Mary Lou Goelz.

We cannot agree with this contention for these reasons:

(1) The blood actually furnished by the Blood Bank was not shown to have been in any way unwholesome or defective as blood. The death of Mary Lou Goelz was the result of the negligence of the Blood Bank’s employee in filling in the wrong blood type number on her card.

(2) The common law did not permit actions for damages for wrongful death. The right to bring such an action is allowed only by our death statutes, Arts. 4671-4678, Vernon’s Ann.Civ.St., and is limited by said statutes. These statutes and death statutes in other jurisdictions are based on the English Statute known as Lord Campbell’s Act passed in 1846. It has been held that under such statutes recovery cannot be had for an implied warranty on the theory of breach of contract. Barley’s Adm’x v. Clover Splint Coal Co., 286 Ky. 218, 150 S.W.2d 670; Willey v. Alaska Packers’ Ass’n, D. C., 9 F.2d 937; Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So.2d 791; Howson v. Foster Beef Co., 87 N.H. 200, 177 A. 656; Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260.

(3) In another jurisdiction it 'has been held, and we think correctly, that the supplying of blood for a fee is in its essence the rendition of a service, not a commercial sale of property. Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792. See also Racklin-Fagin Const. Corp. v. Villar, 156 Misc. 220, 281 N.Y.S. 426; Babcock v. Nudelman, 367 Ill. 626, 12 N.E.2d 635; and Gile v. Kennewick Public Hospital District, 48 Wash.2d 774, 296 P.2d 662, 59 A.L.R.2d 761. So there could be no breach of warranty in such a case.

(4) It is true that a breach of contract may also constitute a tort, in which case a cause of action may ordinarily arise under our death statute on the grounds of tort, nor breach of contract as such. Eubanks v. Schwalbe, Tex.Civ.App., 55 S.W.2d 906, modified on other grounds, United States Fidelity & Guaranty Co. v. Eubanks, 126 Tex. 405, 87 S.W.2d 248. See also Thaggard v. Vafes, 218 Ala. 609, 119 So. 647; Greco v. S. S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557. However, it does not avail appellants to brand the alleged breach of contract as a tort in this case for as pointed out in our discussion of appellants’ first two points, appellee’s immunity as a charitable institution then applies. Appellants’ third and fourth points are overruled.

To summarize: the undisputed evidence in this case shows that the death of Mary Lou Goelz was caused by the negligent act of an employee of the Blood Bank. However, so far as the Blood Bank, a charitable institution, is concerned, the particular activity in which the Blood Bank was then engaged — the furnishing of blood for transfusion — was pursuant to the charitable purposes for which it was formed. Therefore, the Blood Bank is immune from liability for its employee’s negligence.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice. RENFRO, Justice

text:
    Edmund M. BISHOP, Jr., Appellant, v. Mary E. BISHOP, Appellee.
    No. 16245.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 29, 1961.
    Rehearing Denied Nov. 10, 1961.
    Wynne, McKenzie, Stroud, Jaffe & Tinsley, Morris I. Jaffe and Henry Baer, Dallas, for appellant.
    Cantey, Hanger, Johnson, Scarborough & Gooch, and J. A. Gooch, Fort Worth, for appellee.
   MASSEY, Chief Justice.

The appeal involves the propriety of the judgment of the trial court with respect to the property disposition incident to divorce. Involved was personal property only. From our analysis of the state of the record it appears undisputed by the parties that said property was originally a part of the separate estate of the husband, and that the trial court resolved the issue of whether or not there had been a gift thereof to the wife during coverture against the contentions of the husband.

The parties were married in December of 1957. They lived together in Dallas, Texas, until time of their first separation in April of 1958. The wife, appellee herein, moved to Fort Worth and moved such furniture as was her separate property before the marriage from Dallas to Fort Worth. Appellant remained in the Dallas home and either completed the furnishing begun, or completely refurnished the same at an expense approximating $30,000. Funds utilized in acquiring the furniture came from the appellant’s separate estate.

Although there seems to have been periodic occasions when the appellee returned to the home in Dallas for a few days at a time, the parties’ complete reconciliation did not occur until January of 1959. In early 1959 the furniture in the Dallas premises was moved to Fort Worth to a newly acquired house which was the appellee’s separate property. Thereafter, in August of 1959, the final separation occurred, appellant moving out of the Fort Worth home and leaving appellee in possession of said premises and the furniture therein. Appel-lee was also left in possession of a Cadillac automobile which appellant had purchased for her, with title in his own name, a few months after the parties were married. After the final separation the appellant ceased to support the appellee.

A suit was filed and decree of divorcement was granted in April of 1960, with jurisdiction retained to try the issue upon the division of property. Trial of this issue followed in August, 1960. Judgment entered thereupon awarded the automobile and the furniture to appellee, and appellant brought the questions involved before this court on appeal.

We believe it obvious from the circumstances of the case that the furniture and automobile remained the separate property and estate of the appellant. Although there were no findings of fact and conclusions of law requested or filed in this case, it is not to be doubted that the trial court deemed the testimony sufficient to establish that the appellant had made a gift of both the furniture and the automobile to the appellee at times prior to the final separation of the parties, and that, its award of same to appellee was based upon such an erroneous premise.

About the time of the last reconciliation of the parties in early 1959 and when the parties planned to move the furniture to the new home in Fort Worth, appellant stated to appellee that “When we move to Fort Worth and you get the house in Fort Worth * * * I am going to deed you this furniture.” No deed or other formal transfer of the furniture was ever effected. Appellee further testified that appellant, both before and after the time the furniture was purchased, was constantly saying that the furniture was hers, and that it belonged to her, etc. Further, that upon one occasion appellant stated, “Mama, now you have a whole beautiful houseful of furniture and this house, if we don’t — whatever happens between us.”

We do not consider evidence of this character sufficient to raise an issue of fact or support a finding that a gift had been effected. The whole of the evidence in the record relied upon by appellee to establish her title by gift consisted of the acts and declarations of the donor. Proof thereof, although admissible in evidence, is not in itself sufficient to establish the gift, and the requisite proof to establish such must be accompanied by other corroborative evidence showing a delivery of possession and an absolute parting with interest in the subject of the gift. 24 Am.Jur., p. 798 “Gifts” sec. 131 “(Evidence. — Weight and Sufficiency) — Declarations and Admissions”. It has been generally held that in the case of an alleged gift from husband to wife, there must be clear and convincing evidence of a delivery of the property by the husband with the intention of divesting himself of all dominion and control of it and of vesting it in the wife. 12 R.C.L., p. 973 “Gifts”, sec. 45 “Weight and Sufficiency of Evidence”. The es-sentiality of a delivery of possession to the validity of a parol gift has been long established. Chevallier v. Wilson, 1846, 1 Tex. 161. Where the thing is incapable of actual delivery, or where the situation of the parties or the circumstances of the case will not admit of it, delivery may be symbolical or constructive. Hillebrant v. Brewer, 1851, 6 Tex. 45; Harmon v. Schmitz, Tex.Com.App.1931, 39 S.W.2d 587.

In the instant case the circumstances and coverture of the parties inhibited any actual delivery from the husband to the wife of the household furniture and effects of the home, and there was never any symbolical or constructive delivery. That being true, said property remained a part of the separate estate of the appellant.

For the same reasons we must hold the Cadillac automobile purchased by appellant for appellee, while they were husband and wife, to have remained a part of the appellant’s separate estate.

The only other ground upon which the judgment of the trial court could be sustained would be that the award of property from appellant’s separate estate to ap-pellee constituted a proper exercise of the discretion vested in the trial court to divide the estate, pursuant to entry of decree of divorce, in such a way as by it was deemed just and right under all the circumstances. Vernon’s Ann.Tex.Civ.St., Art. 4638, “Division of property”. When it is observed from the record that there was no community property and no great disparity between the parties and that each possessed a size-able personal estate, that the marriage was of brief duration, that no children were born, that each party was apparently in sound mental and physical condition, etc., we are of the opinion that equitable considerations would not warrant an award to appellee of more than a few thousand dollars, or equivalent property, despite appellant’s culpability in the divorce action. See the discussion and cases cited by Morris Atlas in 29 Tex.Law Review, p. 3SS, et seq., entitled “Settlement of Marital Property Rights Upon Divorce.”

Furthermore, it appears that counsel and the court actually tried this case upon a wrong theory, i. e., the “gift” theory. The case was not fully developed upon the principles of equity which would govern the trial court in a division of property under authority of V.A.T.C.S. 4638. This supplies additional reason why the cause should be remanded for another trial.

Reversed and remanded.

On Motion for Rehearing

Rehearing denied.

RENFRO, Justice

(dissenting).

I would affirm the judgment of the trial court.


text:
    Ester Pena GONZALEZ, Guardian of the Estate of Maria Ester Pena, a Minor, Appellant, v. Agnes MEEK, Individually and as Independent Executrix of the Estate of C. Meek, Deceased, et al., Appellees.
    No. 13815.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 25, 1961.

      Pope & Pope, Rio Grande City, for appellant.
    Royce C. Johnston, Kingsville, for ap-pellees.
   BARROW, Justice.

This suit was brought by Ester Pena Gonzalez, Guardian of the Estate of Maria Ester Pena, a Minor, against Agnes Meek, Individually and as Independent Executrix of the Estate of C. Meek, Deceased, Homer Fergeson, named as trustee in a certain deed of trust executed by Antonio Pena, individually and as guardian of the estate of Maria Ester Pena, a minor, in favor of C. Meek as beneficiary to secure the payment of a certain note in the sum of $6,500, and Antonio Pena and wife, Rosenda Pena, to cancel, set aside and hold for naught the deed of trust and the trustee’s deed from Homer Fergeson to Agnes Meek. The suit was also against other defendants, including Antonio Pena, on other claims not involved in this appeal. The trial court severed the issue of the validity of the above-mentioned deed of trust, which was tried in this proceeding, from the remainder of the issues involved in the main suit. In the trial of this severed issue before the court, judgment was rendered holding said deed of trust to be a valid lien on the property described therein, and that plaintiff take nothing.

Appellant predicates this appeal upon three points, as follows:

“Point No. 1: Appellant moves that the Honorable Trial Court erred in finding that the testimony of the defendant, Antonio Pena, was within the provisions of Article 3716, R.C.T.S., commonly referred to as the ‘dead man’s statute’ and erroneously omitted the same from consideration, since the defendant, Antonio Pena is an ‘opposite party’ within the meaning and provisions of Article 3716.
“Point No. 2: That the Honorable Trial Court erred in holding that the Deed of Trust executed February 11, 1957, was a valid Deed of Trust when in truth and in fact the aforesaid instrument was executed without th? provisions of Article 329, Sub-section 5 of the Probate Court (obviously meaning Probate Code) of the State of Texas.
“Point No. 3: Appellant moves that the Honorable Trial Court in finding for the defendants, Agnes Meek and Homer Fergeson is contrary to the great weight and authority.”

It was stipulated by the parties that the property described in the. deed of trust: Lot One (1), in Block Six (6), of the McBryde Acres Addition to the town of 'Kingsville, Kleberg County, Texas, was community property of Antonio Pena and his first wife, Panfila Pena, and that the minor, Maria Ester Pena, is the child of that marriage; that after the death of his first wife, Antonio married Rosenda Pena, his present wife; that on June 19, 1950, .and July 31, 1950, respectively, he became the guardian of the estate of the minor, Maria Ester Pena; that on April 6, 1959, Antonio Pena was removed as such guardian, and on April 10, 1959, appellant became the guardian of said minor’s estate.

Appellant called Antonio Pena as a witness. He testified over the objection of appellees to the conversations and transactions with the deceased, C. Meek, regarding the loan by said deceased and the deed of trust to secure said loan. The testimony was objected to on the ground that it violated the provisions of Article 3716, Vernon’s Tex.Civ.Stats., commonly known as the “dead man’s statute.” The court pei-mitted the witness to testify and took the objection under advisement, and at the conclusion of the testimony sustained the objection and excluded the testimony. The trial court was correct in so ruling.

The appellant contends that the witness Antonio Pena was an adverse party, and that she should have been permitted to call him to testify as to such matters. We agree with appellant that if Pena was in fact an adverse party, her contention would be correct, but we do not agree that he was an adverse party under the record in this case. It is true that appellant, as plaintiff, made him a party defendant, and that he filed an answer pleading not guilty and a general denial, but the record shows that he appeared only in person and made no defense, nor attempted to do so. The record in this case, including his own testimony, shows that, although he is a nominal party defendant, his interest in the suit is in fact allied with that of his daughter, the real plaintiff. His real interest in this suit is to set aside the deed of trust and not to uphold it. He frankly so admitted. The rule is well settled that in applying the rule of the statute courts will consider the nature of the suit and the relative interest of the party whose testimony is offered, rather than the position he may occupy in the record. Where the interests of parties nominally arrayed on opposite sides are in fact identical or allied, neither party will be permitted to call the other to testify as to transactions with the decedent. Rascoe v. Walker-Smith Company, 98 Tex. 565, 86 S.W. 728; James v. James, 81 Tex. 373, 16 S.W. 1087; Leach v. Cassity’s Estate, Tex.Civ.App., 279 S.W.2d 630; Hall v. Collins, Tex.Civ.App., 151 S.W.2d 338.

Coming to appellant’s second point, it is not disputed that the proceedings in the Probate Court were regular and conformed to the provisions and requirements of Section 329 of the Probate Code. Appellant’s complaint is that the statements in the application of the guardian, Antonio Pena, for authority to mortgage the property, that the property is not revenue producing and by constructing a five-room house thereon the property will become revenue producing, were false, as Antonio Pena had no intention of thereby making the property, revenue producing, but intended to build a home for himself and his wife to live in. This proceeding is not a direct appeal from the orders of the probate court authorizing the making of the lien, nor is it a direct certiorari proceeding to review such- orders, but constitutes a collateral attack upon the final orders and judgments of the Probate Court of Kleberg County, Texas. The Probate Court had the power, authority and jurisdiction to make the orders attacked in this suit. Section 329(5), Probate Code. A probate court acting within its constitutional statutory powers, is a court of general jurisdiction, and when so acting its judgments are immune from collateral attack. Dallas Joint Stock Land Bank v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046, 112 S.W.2d 173. Appellant’s second point is overruled.

Appellant’s third point is simply a reargument of the matters complained of under the second point, and is overruled for the reasons stated above.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    CITY OF DALLAS et al., Petitioners, v. Julien C. HYER, Judge of the 44th District Court and James D. O’Connor, Respondents.
    No. 7389.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 10, 1961.
    Rehearing Denied Oct. 31, 1961.
    H. P. Kucera, N. Alex Bickley, Dallas, for petitioners.
    James D. O’Connor, Dallas, for respondents.
   DAVIS, Justice.

This is an application for writ of prohibition and ancillary mandatory orders by the City of Dallas and Hon. Bill Decker, Sheriff of Dallas County, petitioners, against Hon. Julien C. Hyer, District Judge of the 44th Judicial District Court and James D. O’Con-nor, respondents. Prior to the institution of this proceedings, petitioner, the City of Dallas, sued James D. O’Connor for delinquent taxes on some property situated in Dallas County. The suit was filed in the 101st Judicial District Court. Upon completion of the trial, judgment was entered against respondent James D. O’Connor for the taxes due. An appeal was taken to the Fifth Court of Civil Appeals, and by order of the Supreme Court of Texas, the. case was transferred to the Sixth Court of Civil Appeals and was docketed in this court under the style of “James D. O’Connor v. The. City of Dallas”. This court affirmed the judgment of the trial court. The opinion appears in 337 S.W.2d 741. An application for writ of error was made to the Supreme Court, and the Supreme Court dismissed the application for writ of error. A mandate was issued by this court. The City of Dallas caused a writ of execution to issue. The execution was placed in the hands of Sheriff Bill Decker, and he levied upon the property and advertised the same for sale on August 1, 1961. On July 31, 1961, the respondent, James D. O’Connor, filed suit in the 44th Judicial District Court of Dallas County, styled “James D. O’Connor, as Independent Executor of the Estates of T. J. O’Connor and Ellen O’Connor, deceased, Plaintiff, v. Bill Decker and City of Dallas, Defendants,” and procured a restraining order preventing the property from being sold to satisfy the judgment.

The petitioners appeared before the Hon. Julien C. Hyer on the 3rd day of August, 1961, and requested a resetting of said hearing, which the Plon. Julien C. Hyer granted, and reset the case for hearing in his court on August 31, 1961 at 1:30 P.M., and continued the restraining order in effect.

The petitioners immediately filed their petition for a writ of prohibition and ancillary mandatory orders in this court. The judgment is the final judgment of this court. We have the authority to grant the writ of prohibition. Art. 1823, Vernon’s Ann.R.C. S.; City of Houston v. City of Palestine (Tex.Sup.Ct.) 114 Tex. 306, 267 S.W. 663; City of Palestine v. City of Houston (C.C. A.) 262 S.W. 215; Cattlemens Trust Company of Fort Worth v. Willis (C.C.A.) 179 S.W. 1115; Wright v. Wright (C.C.A.), 318 S.W.2d 788, err. dism.

When the Honorable Julien C. Hyer granted the restraining order, if he was going to do so, he should have made it returnable to the 101st Judicial District Court. On the face of the petition filed in the district court, he had no authority whatever to grant the restraining order. No cause was alleged why he should grant the same and make it returnable to his court, and this was error too. Art. 4656, V.A.T.C.S.; Glenn v. Green (C.C.A.), 65 S.W.2d 386; Railroad Commission et al. v. McDonald (C.C.A.), 100 S.W.2d 155.

The writ of prohibition is granted against Honorable Julien C. Hyer, District Judge of the 44th Judicial District Court of Dallas County, from doing anything further in the case, save and except to dissolve the temporary restraining order and dismiss the case that has been filed in his court by James D. O’Connor as Independent Executor of the Estates of T. J. O’Connor and Ellen O’Con-nor, deceased, plaintiff, v. Bill Decker and the City of Dallas, defendants. A writ of prohibition is granted against James D. O’Connor, individually, and as Independent Executor of the Estates of T. J. O’Connor and Ellen O’Connor, deceased, and his attorneys, agents and representatives, from taking any further action to prevent the sale of the property that was involved in the case of O’Connor v. City of Dallas (C.C.A.), 337 S.W.2d 741, writ dismissed.


author: CHADICK, Chief Justice.

text:
    FRABEN OIL CORPORATION, Appellant, v. Richard J. POTTER, Appellee.
    No. 7333.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 10, 1961.

      Harry M. Whittington, Austin, for appellant.
    W. A. Pritchard, Bradford & Pritchard, Dallas, for appellee.
   CHADICK, Chief Justice.

This is an action by a landlord to collect rent from a tenant in accordance with the terms of a written lease contract. The trial court awarded the plaintiff judgment for rent in the sum of $2,500, attorney’s fee of $500, costs, etc. The judgment is. affirmed. , 1

The appellant’s first point of error is' directed to the trial judge’s finding of fact that the appellee, Richard J. Potter, as landlord, complied with his lease obligation to furnish automobile parking space to the tenant, the appellant, Fraben Oil Corporation, as being against the great weight and preponderance of the evidence. The second point puts in issue of the trial judge’s failure to find that Potter agreed to furnish continuous available parking space to the oil company’s three employees; the third relies upon the evidence as a matter of law to prove that Potter was unable to comply with the lease obligation to furnish parking space.

The written lease signed by the parties made use of a printed form copyrighted by the Dallas Real Estate Board for use in leasing city property. A description of the property, the term of the lease, and the monthly rental was inserted in blanks preceding a series of fourteen stipulations referred to as conditions and covenants. Following the printed stipulations the parties typed in three additional paragraphs numbered fifteen, sixteen and seventeen. The fifteenth was this: “Lessor agrees to furnish heating, air conditioning and janitor service, as well as parking space in an offstreet lot within the same city block.”

The trial judge’s findings of fact presuppose that he tried the case on the theory that a violation of the lessor’s obligation to furnish parking space would justify the oil company in terminating the lease, vacating the premises and refusing to pay rent. The appellee apparently did not oppose this theory in the trial court and has not cross-assigned error in this respect, but does: now urge in support the judgment rendered that the oil company was limited to an action for damages accruing from a breach of the obligation. That is to say, that the agreement to furnish parking space is an independent covenant for which the tenant might have had relief by way of damages. It is not necessary to pursue the appellee’s contention in this regard. See Appeal and Error — Civil, 3 T.J. (2) 634, Sec. 374. The evidence, however, appears to be sufficient to sustain the court’s judgment upon the trial theory.

The trial judge’s findings of fact are entitled to the same weight and conclusiveness on appeal that the verdict of a jury is given on special issues. Appeal and Error- — -Civil, 4 T.J. (2) 398, Sec. 839, and authorities cited in Note 7. When the -judge’s finding is attacked as here under point of error No. 1, the rule is that the Court of Civil Appeals will consider all of the evidence and determine the fact question of its weight and preponderance. See In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Penix et al. vs. First Nat. Bank of Paris, Tex.Civ.App., 260 S.W.2d 63, writ refused. The appropriate test of the proof for point 3 is whether reasonable minds might differ on the effect to be given the evidence. See Humble Oil & Refining Company vs. Patton et al., Tex.Civ.App., 344 S.W.2d 234, wr.ref., n. r. e., and authorities cited in headnote 2.

The appellee, Potter, provided the tenants of his office building with a paved parking lot in the same block with the building. Besides the oil company, offices were maintained in the Potter building by the Home Life Insurance Company, Hunt and Joiner, and Farmers Insurance Company. Employees of the oil company testified that all of the parking space on the lot would be filled when they came to work between 8:00 and 8:30 in the morning, and they were forced to park their automobiles elsewhere. From this same source there is evidence that the insurance company held sales meetings every morning, at which time a number of salemen came in, and these salesmen, the employees of other tenants, and perhaps some unauthorized persons, occupied the parking lot, and that it was usually in the afternoon before the oil company’s employees could find space on the lot. Complaint was made to Potter, and he tendered some additional parking space near an alley, which the oil company found unsatisfactory.

In his own behalf Potter testified that there was ample parking space on the lot for the oil company’s employees at all times, that the insurance company’s salesmen did not park on the building’s parking lot, but in front of the building in a two-hour parking zone; that when he arrived each morning between 9:00 to 9:30 the lot was nearly vacant and was always nearly vacant. He also testified that he had employees watch to prevent unauthorized persons from using the lot. The great weight and preponderance is not against the fact finding.

In support of the third point of error the appellant directs attention to the testimony that the lot Potter provided for parking was of such dimension that only eighteen or twenty cars could occupy it, and that the tenants in the building and their employees exceeded that number; which is to say, that at the time the lease was made there were more persons authorized to park on the lot than the lot would accommodate, and the appellee could not as a matter of law perform the obligation he undertook to furnish the oil company’s employees with parking space. However, there is other testimony that only six employees of other tenants used the lot regularly, as well as the testimony that the lot had ample space at all times. A distinct issue of fact was made.

In the state of the record the appellant’s first and third points must be overruled.

Motion has been made to strike appellant’s second point of error because the transcript shows no request made for the finding desired by the appellant, or that the trial judge’s failure to make the finding desired was called to his attention in accordance with the provision of Rule 298, Texas Rules of Civil Procedure. The motion is sustained.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    ALICE MEDICAL AND SURGICAL CLINIC et al., Appellants, v. Mrs. C. A. BARKER, Jr., et vir, Appellees.
    No. 13818.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 25, 1961.
    House, Mercer, House & Brock, San Antonio, for appellants.
    Raymond L. McDermott, Houston, Arthur Klein, Harlingen, for appellees.
   MURRAY, Chief Justice.

This is a plea of privilege case. It was instituted by Mrs. C. A. Barker, Jr., and her husband, C. A. Barker, Jr., in the District Court of Calhoun County, Texas, against the Alice Medical and Surgical Clinic, Inc., a corporation with its office and place of business in Jim Wells County, Texas, hereinafter referred to as Clinic, Inc., Dr. P. S.. Joseph and J. A. Schubert, both residents of Jim Wells County, and Austin F. Drexler, a contractor and resident of Calhoun County, for damages growing out of the death of their nine-year-old son, David Arthur Barker. The boy’s death was alleged to have occurred as a result of burns received by him while playing with a can of solvent or other liquid of a highly inflammable nature, in or about a pile of rubbish located on property owned by Clinic, Inc., in Jim Wells County, which can of solvent or other liquid had theretofore been thrown out by one or more of the employees of Austin F. Drexler during the process of the construction of the clinic upon its said property.

All of the defendants except Drexler filed pleas of privilege to be sued in Jim Wells County, which, after a hearing, were overruled, and these three defendants have prosecuted this appeal.

Appellants contend that appellees failed to prove a cause of action against Drexler, the only defendant residing in Calhoun County. Appellees were attempting to hold venue in Calhoun County under Subdivision 4 of Art. 1995, Vernon’s Tex. Civ.Stats. Under this subdivision it is necessary to1 allege and prove a cause of action against the resident defendant, and to allege a joint cause of action against the nonresident defendants or one against the resident defendant so intimately connected with the cause of action against the nonresident defendants that they are properly joinable. Proof of the latter is supplied by the allegations of the petition. Mizell v. Longhorn Supply Company, Tex.Civ.App., 279 S.W.2d 167. It is not necessary to prove a cause of action against the nonresident defendants. Le Blanc, Inc. v. First National Bank of Bay City, Tex.Civ. App., 320 S.W.2d 886.

The trial court having overruled appellants’ pleas of privilege, in the absence of findings of fact, we must presume that all fact issues which the pleadings and the evidence will support, were resolved in favor of the judgment rendered. York v. Wells, Tex.Civ.App., 299 S.W.2d 716. In reviewing the evidence, we will disregard all adverse evidence and give credit to all evidence that is favorable to appellees. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. Appellants here have raised only the contention that there is “no evidence” to support the judgment.

We conclude that there is “some evidence”, as that term is understood in law, to make out a case against Drexler, the resident defendant. The evidence shows that Drexler was the general contractor who built the clinic building in Alice, Jim Wells County. He entered into the contract on March 8, 1958. On October 28, 1958, Clinic, Inc., acting through its officers, signed an acceptance agreement with Drexler, only for the purpose of letting him receive his final payment, to pay his sub-contractors and employees. He obligated himself to finish all of the terms of the contract that remained unfinished. The contract provided, in effect, that Drexler would clean up the premises. The evidence would justify a finding that he agreed, at the time he received the balance due him, that he would come back and clean up the premises. The fact that the written acceptance was signed under the circumstances did not relieve Drexler from his duties under the contract, or the promises he made in order to get the acceptance signed. Russell Brown Company v. Christiansen, Tex.Civ.App., 230 S.W. 744.

The evidence would justify a further finding that either Drexler or his employees put the trash, including the cans containing the inflammable liquid, in the trash pile at the rear edge of the clinic property, and, under the circumstances, it was Drexler’s duty to come back and clean up this trash, which he negligently failed to do. David Barker discovered these cans containing the inflammable fluid, opened them, spilled some of the fluid on his clothes, built a fire, and while pouring some of the fluid upon the fire his clothes caught on fire and he was severely burned. These burns ultimately caused his death. The evidence would further justify a finding that the trash pile was especially attractive to children, and that David Barker and his playmates were attracted to this trash pile; that Drexler, as well as Dr. Joseph and Schubert, had seen children playing in the vicinity of the trash pile and were therefore charged with knowledge that children were likely to be playing near this trash pile; that the trash pile could be seen from the street and was partly upon an alley-way that was back of the clinic property.

David Barker was nine years of age, and it was the duty of the trial court to determine whether he was of such tender years as not to realize the danger of setting fire to the inflammable liquid.

David Barker and his playmates were not trespassers when they were in the alley-way or on the property of the clinic near the trash pile, but whether they were trespassers or not is immaterial, because the appellants knew, or were charged with knowledge, that small children had been playing in the vicinity of the trash pile, and were likely to be there again; that the trash pile would be attractive to small children and was extremely dangerous to them; that such children, due to their tender years, would not realize this danger; that the trash pile was of no utility to the appellants, and the cost of removing it would be very small. Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587; Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231; Courtright v. Southern Compress & Warehouse Co., Tex.Civ.App., 299 S.W.2d 169.

It is true that Drexler did not own the premises on which the trash pile was located, but it was established that it was his duty to clean up the trash pile, and his failure to do so, under all the circumstances, constituted actionable negligence against him. Natatorium Laundry Co. v. Saylors, Tex.Civ.App., 131 S.W.2d 790; Johns v. Fort Worth Power & Light Co., Tex.Civ. App., 30 S.W.2d 549; Little v. James McCord Co., Tex.Civ.App., 151 S.W. 835.

The judgment of the trial court overruling the pleas of privilege is affirmed.


author: COLLINGS, Justice.

text:
    EXPRESS PUBLISHING COMPANY, Appellant, v. Enrique G. GONZALEZ, Appellee.
    No. 3640.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 13, 1961.
    Rehearing Denied Nov. 3, 1961.

      Denman, Franklin & Denman, San Antonio, Perkins, Floyd, Davis & Oden, Alice, for appellant.
    A. J. Vale, Rio Grande City, L. Hamilton Lowe, Austin, F. R. Nye, Jr., Rio Grande City, for appellee.
   COLLINGS, Justice.

Enrique G. Gonzalez brought suit against the Express Publishing Company, a corporation, seeking damages for libel. Plaintiff alleged that he was libeled by reason of an article appearing in the San Antonio Express on Sunday, December 20, 1957.

Plaintiff alleged and the evidence shows, that the article in question which appeared under a headline asserting, “Sisters Win Oil Land Suit”, stated: that the sisters, who were twins and were ninety-nine years of age had alleged in the District Court that their land was fraudulently taken from them by their nephew, Benigno Barrera, and plaintiff Enrique G. Gonzalez; that the sisters could neither read nor write; that they had signed a deed conveying their land when Barrera represented it as a document permitting him to erect a corral fence thereon; that the District Court had, about a year previously, held the sisters entitled to recover the land which had been in their family since a Spanish grant, and that the Court of Civil Appeals had now also ruled against Barrera and Gonzalez.

Gonzalez alleged that the portion of the newspaper article stating, in effect, that the courts had declared him guilty of taking land from the two sisters was false; that actually he had no connection whatever with the transaction, and that his name was not mentioned in the judgment or the plead-' ings upon which the judgment was based; that plaintiff was well known in Starr County and throughout a large part of south Texas and had many friends and business associates in that territory; that the newspaper operated and published by the defendant had a large circulation throughout the same territory and the article was read by thousands of people, including hundreds of his friends and business associates, and that he had been greatly damaged by reason of the false statements and implications in defendant’s newspaper.

The defendant, Express Publishing Company, excepted to plaintiff’s petition on the ground that the article was privileged under Article 5432, Vernon’s Ann.Texas Civ. St. Defendant entered a general denial and specially pleaded the defense of truth, good faith and privilege. Defendant also alleged that the newspaper article complained of had been corrected in a later edition of the paper with the same circulation.

The trial was before the court without a jury and judgment was rendered for Gonzalez in the sum of $12,500. The Express Publishing Company has appealed. A pri- or appeal of this case from an order overruling a plea of privilege is reported in 326 S.W.2d 544. That case is referred to for a detailed statement of the pleadings and evidence which, so far as they are applicable, are substantially the same as involved in this appeal.

The record shows that Gonzalez, originally a defendant in the case which was the subject matter of the newspaper article in question, filed a motion therein for summary judgment. The plaintiffs in that cause (the sisters who alleged the fraudulent taking of their land) thereupon dismissed the case as to Gonzalez. Thereafter judgment was entered in said cause cancelling the deed executed by the sisters to their nephew, Benigno Barrera, and Barrera appealed. Gonzalez signed Barrera’s appeal bond. The case was affirmed by the Fort Worth Court of Civil Appeals, Barrera v. Ruiz, 308 S.W.2d 578, and judgment was rendered affirming the trial court’s judgment. Judgment was also rendered against Gonzalez for costs because he had signed Barrera’s appeal bond.

In numerous points appellant contends that the court erred in entering judgment against it and for Enrique G. Gonzalez because, (1) the claim of libel is based upon the publication of an article which was a matter of public concern, was a true or substantially true account of a proceeding in a court of justice, and therefore, was privileged under Articles 5431 and 5432, V.A.T.C.S., (2) that although Gonzalez was dismissed from the suit in which the quoted allegations against him were contained, he thereafter signed the appeal bond of Barrera; and therefore made himself a party to the suit again; that because he again made himself a party to the suit he authorized a judgment of affirmance against him for costs; that by signing such cost bond he showed his interest in the litigation, and there was no basis for the finding that he was wrongfully embarrassed or that his reputation was damaged. Appellant further contends that the court erred in entering the judgment because, (3) appellant showed good faith by publishing an explanation or correction, making still more persuasive the contention that there was no basis for the finding that appellee was wrongfully embarrassed or that his reputation was damaged. Appellant also urges, (4) that the Court grossly abused its discretion in fixing the amount of damages at $12,500.

Article 5431, V.A.T.C.S., provides as follows :

“In any action for libel, in determining the extent and source of actual damage and in mitigation of exemplary or punitive damage, the defendant may give in evidence, if specially pleaded, all material facts and circumstances surrounding such claim of damage and the defense thereto, and also all facts and circumstances under which the libelous publication was made, and any public apology, correction or retraction made and published by him of the libel complained of, and may also give in evidence, if specially pleaded in mitigation of exemplary or punitive damage, the intention with which the libelous publication was made. The truth of the statement, or statements, in such publication shall be a defense to such action.”

Article 5432, V.A.T.C.S., provides in part as follows:

“The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
“1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication * * * ”.

Appellant correctly contends that the article in question was a report concerning a proceeding in a court of justice. If it was “fair, true and impartial” then it was privileged under Article 5432 and could not be the basis of a suit for libel. The article correctly stated that the sisters had charged Gonzalez with fraud. This allegation was made in their original petition. The article failed to state, however, that the sisters had later dismissed the case against Gonzalez, filed an amended petition in which the name of Gonzalez was not mentioned, and that the judgment restoring the land to the sisters was against Barrera alone. The literally true statement in the questioned article that the District Court had “returned the sisters * * * land” implied that the court had sustained the charge of fraud against Gonzalez. The implication was not true. Gonzalez was not even a party to the suit when the judgment was rendered. The further statement that “the appeals court had ruled against Barrera and Gonzalez” made the false implication still stronger. The article failed to state the true fact that the judgment against Gonzalez was solely as surety on the appeal bond for costs. The article was not “a fair, true and impartial account of the proceedings in a court of justice”. It was, therefore, not privileged at common law or under the provisions of Article 5432, Davila v. Caller Times Publishing Co., Tex. Civ.App., 311 S.W.2d 945 (Writ Ref.). Neither is appellant relieved from liability under the provisions of Article 5431. Although the truth of an alleged libel may be proven as a complete defense it is not a defense to show that a statement contained in a publication, if taken alone, is literally true, when other facts are omitted which plainly refute the false impression of the partial statement. A statement is not true or even substantially true if, by implication,, an entirely untrue impression is made by omission of part of the facts. Appellant’s points urging that the publication upon which appellee’s claim for libel is based was a true or substantially true account of a proceeding in a court of justice and, therefore excused, or privileged under Articles 5431 and 5432, supra, are overruled.

The signing of Barrera’s appeal bond by Gonzalez did not reinstate him as a party to the suit. If, under the circumstances, it was reprehensible or blameworthy or injurious to his reputation for Gonzalez to sign the appeal bond, it was, nevertheless, not the same thing as defrauding the two aged women of their land, which was the effect of the statement in the published article. The judgment against Gonzalez as surety on an appeal bond for costs was not substantially or even remotely the same thing as a judgment finding that he was. guilty of such fraud.

The fact that a correction was made by appellant was admissible and material only on the issue, and in mitigation, of damages. Article 5431, supra. Contrary to-appellant’s contention the court did not err in refusing to hold that the correction made by appellant in a later issue of its paper completely exonerated appellee in the eyes, of his friends, acquaintances and public generally and removed all damages resulting from the publication of the article complained of.

We overrule appellant’s point urging that the court abused its discretion in fixing the damages at $12,500. Appellant was under the pleadings and evidence entitled to recover damages for libel. The determination of the amount of damages in a libel case is within the sound discretion of the jury, or if there is no jury, the judge in the trial court. This discretion is subject to review in the appellate court but will not be disturbed unless an abuse- of discretion is shown. A man’s .reputation for honesty and integrity is a valuable possession which cannot be measured or compensated for in dollars and cents. Appellee was born in Starr County in 1894 and had lived there all his life. He had worked for the Magnolia Petroleum Company since 1918, and his business as a wholesale agent carried him all over the Rio Grande Valley. He is a rancher and dealer in cattle. He had served as school trustee in the community in which he lives and as chairman of the Democratic executive committee. We cannot say under the evidence that the court was guilty of an abuse of discretion in fixing the damages at $12,500.

The judgment is affirmed.