author: COLLINGS, Justice.

text:
    HEUSINGER HARDWARE COMPANY, Appellant, v. FROST NATIONAL BANK OF SAN ANTONIO, Appellee.
    No. 3727.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 8, 1963.
    Rehearing Denied March 1, 1963.

      Bradford F. Miller, San Antonio, for appellant.
    Carl Wright Johnson and Alfred W. Offer, San Antonio, for appellee.
   COLLINGS, Justice.

Heusinger Hardware Company brought this suit against the Frost National Bank of San Antonio. Plaintiff alleged that its bookkeeper took a number of checks which were payable to plaintiff to Frost National Bank and without the knowledge, consent or authority of plaintiff cashed such checks and that the proceeds of said checks were never received by plaintiff; that as a result of these transactions the defendant bank became liable for the face amount of such checks, with interest. Plaintiff made request for admissions which were answered and moved for summary judgment, ■which motion was overruled. The court •sustained defendant’s exceptions to plaintiff’s pleadings. After announcement by plaintiff that it had alleged all the available facts and that no additional facts could be pleaded by further amendment, the suit was dismissed. Heusinger Hardware Company has appealed. The parties will be referred to as they appeared in the trial court.

Plaintiff, as appellant, presents points in ■which it is urged that the trial court erred (1) in sustaining defendant’s exceptions -to its petition; (2) in dismissing the cause .and (3) in overruling its motion for summary judgment. Plaintiff’s first four points • complain of the action of the court in sustaining exceptions in which the defendant moved that the matter excepted to be stricken.

It was alleged in plaintiff’s petition that ’“in the regular course of its business the Plaintiff receives checks from its customers in payment of their accounts with Plaintiff, . all of which checks are payable to Plaintiff, which Plaintiff collects by depositing and • collecting same in and through the bank where Plaintiff has its account; that Plaintiff has never had an account with Defend.ant, nor deposited or collected any checks •or negotiable instruments with or through the Defendant nor done any banking business with Defendant; that during the peri- • od covered by the checks hereinafter referred to there was a bookkeeper in the employ of Plaintiff named James F. Jolly, whose duties were to make and keep records of the business transactions of Plaintiff ■ on the usual and customary books and records of a mercantile business.” It was further alleged in substance that plaintiff’s bookkeeper Jolly was in the course of his •duties supposed to make entries in plaintiff’s books on all checks sent in by plaintiff’s customers; that without any authority from plaintiff and without its knowledge or consent Jolly cashed a large number of said checks, the proceeds of which were never received by plaintiff; that none of said checks were ever indorsed by plaintiff or by any officer, agent or employee authorized to do so; that during the period from about November 6, 1953, and continuing until on or about April 26, 1955, Jolly cashed such checks with the defendant bank and in exchange for each of said checks Jolly received from the bank the full amount of each check in cash.

Plaintiff further alleged in substance that Jolly, as its bookkeeper was instructed to prepare all checks received from customers for deposit in the National Bank of Commerce of San Antonio where plaintiff maintained its bank account, and to list all of said checks on a deposit slip each day for delivery to said National Bank of Commerce; that Jolly was instructed to place on the back of each check a rubber stamp reading “For Deposit Only, Payable to the Order of National Bank of Commerce of San Antonio, Texas, Heusinger Hardware Company”; that so far as plaintiff knew Jolly was performing his duties as bookkeeper as directed by plaintiff; that on April 26, 1955, plaintiff discharged Jolly from his employment and thereafter it was discovered that the books were out of balance and that Jolly had made false entries in plaintiff’s books and records; that plaintiff further discovered that the checks in question had not been deposited in plaintiff’s bank account in the National Bank of Commerce of San Antonio, but had been cashed by the said Jolly. Plaintiff further alleged in substance that each of said checks was found to bear the imprint of a rubber stamp on its back reading “Heusinger Hardware Company, 111 West Side Military Plaza, San Antonio, Texas,” which was a stamp plaintiff kept in its office for the purpose of marking packages, mailing tags and shipping documents; that each of said checks also bore the signature of Jolly on the back; that plaintiff never permitted Jolly to sign checks or indorse or cash checks or to place any rubber stamp on the back thereof except the one above described containing the words “for deposit only” for use in depositing them in plaintiff’s bank account, and until the recovery of said checks plaintiff had no knowledge that Jolly had done so. Plaintiff alleged that Jolly by such conduct converted said checks to his own use and benefit and embezzled same. Plaintiff sought to recover from the defendant bank the total amount of said checks alleged to be $3,017.71 and interest.

Defendant filed special exceptions to plaintiff’s pleadings. In paragraph 1 of its answer defendant specially excepted to that portion of plaintiff’s pleadings wherein it was alleged that “without any authority from the plaintiff to do so, and without its knowledge or consent, the said James F. Jolly cashed a large number of checks, and the proceeds of said checks were never received by plaintiff. None of said checks were ever endorsed by plaintiff, or by any officer, agent or employee authorized so to do.”

Defendant urged that such allegations should be stricken contending that no fact or facts were alleged in plaintiff’s pleadings showing any lack of authority on the part of Jolly to indorse checks on behalf of plaintiff; that on the contrary plaintiff’s pleadings showed on their face that plaintiff had expressly authorized Jolly to indorse customers’ checks by use of a rubber stamp furnished by plaintiff, and that plaintiff’s main complaint was that Jolly should have indorsed such checks and deposited them in the bank where plaintiff had its account rather than indorsing the checks for and on behalf of plaintiff and cashing same with the defendant; that plaintiff admits in its pleadings that Jolly was expressly authorized to'take possession of its checks; that each of such checks shows to have been indorsed by Jolly by placing the indorsement of.plaintiff on the back thereof as well as his own indorsement, showing that he was cashing each such checks as agent for and on behalf of plaintiff; that plaintiff’s allegations of lack of authority on the part of Jolly to indorse such checks are repugnant to and contradictory of plaintiff’s further allegations to the effect that plaintiff did expressly authorize Jolly to indorse its checks for deposit. Defendant further urged that plaintiff’s allegations to the effect • that “Jolly cashed a large number of said checks, and the proceeds of said checks were never received by plaintiff” is an erroneous legal opinion and conclusion of plaintiff because in truth and in fact the payment of the amount of the checks to Jolly was a payment to plaintiff itself because plaintiff is a corporation and could only act through agents, and Jolly was its agent; that plaintiff admits Jolly was authorized to receive funds and checks from customers and he was therefore authorized to receive for and on behalf of plaintiff the cash proceeds represented by the checks in question. Defendant further urged that plaintiff’s allegation to the effect that none of said checks were ever indorsed by plaintiff or by any agent or employee authorized to do so is irrelevant and immaterial and could' show no liability on the part of defendant because the funds from each of said checks; was paid to Jolly allegedly an agent of plaintiff authorized to receive its funds, and that any embezzlement from the plaintiff of such funds by Jolly would be a matter between plaintiff and Jolly and could not create any cause of action against the defendant.

In other exceptions urged by the defendant bank and sustained by the court it was. contended that plaintiff’s pleadings concerning the duties and authority of the bookkeeper Jolly showed no more than secret mental reservation on the part of plaintiff’ and that the alleged false entries made by-Jolly to conceal his actions were irrelevant- and immaterial; that the checks in question show on their face to be properly indorsed by plaintiff as payee and were negotiable-bills of exchange in the hands of plaintiff’s, agent Jolly and since there was no allega-; tion that defendant had “any actual knowledge of such facts that their action in taking such instruments amounted to bad faith”; that defendant became a holder of such checks in due course, and that plaintiff therefor alleged no cause of action against the defendant.

In our opinion appellants first four points are well taken. Briefly stated, plaintiff’s allegations were, in effect, that its bookkeeper Jolly had authority to receive checks made payable to plaintiff, to make entries in plaintiff’s books showing the receipt of all such checks sent in by plaintiff’s customers, to prepare all such checks for deposit in the National Bank of Commerce of San Antonio, where plaintiff maintained its bank account, to indorse such checks with a rubber stamp reading “For Deposit Only, Payable to the Order of National Bank of Commerce of San Antonio, Texas, Heus-inger Hardware Company”, and to deposit any such checks in the National Bank of Commerce. Plaintiff alleged that the above allegations showed the extent of Jolly’s authority and that he had no authority to cash such checks and receive money thereon, but without any authority from plaintiff and without its knowledge and consent did cash said checks which were never indorsed by plaintiff or any agent or employee of plaintiff authorized to do so.

It is held that a general agency does not imply authority in an agent to indorse checks payable to his principal; that an agent’s authority with respect to negotiable instruments is limited to a power to act in a manner and under circumstances specified in the power, in the absence of circumstances showing a broader apparent authority. Independence Indemnity Co. v. Republic National Bank & Trust Company, Tex.Civ.App., 114 S.W.2d 1223. Thus, an agent who has authority to indorse in form for deposit has no implied authority to indorse generally, and a general indorsement by such an agent passes no title. It is also held that a collecting bank which cashes a check on such an indorsement, holds the proceeds of the check for the payee and that the payee is entitled to maintain an action against the bank for the amount of the check. 9 C.J.S. Banks and Banking § 357, pp. 764, 765. Fidelity & Deposit Company of Maryland v. Fort Worth National Bank (Tex.Com.App.), 65 S.W.2d 276; Morris Plan Bank of Fort Worth v. Continental National Bank of Fort Worth, Tex.Civ.App., 155 S.W.2d 407.

The facts alleged by plaintiff, as substantially set out above, show a lack of authority on the part of plaintiff’s bookkeeper, Jolly, to indorse the checks as he did, and to cash and to receive the proceeds thereof. The fact that the bank acted in good faith and paid value is, under the circumstances, not material. Plaintiff’s allegations, therefore, state a cause of action against the defendant with clarity and detail sufficient to give defendant fair notice of plaintiff’s alleged cause of action. The allegations are not as appellee contends repugnant and contradictory. The fact that Jolly had authority to indorse checks by a stamp showing it was “for deposit only” does not indicate authority to indorse for general purposes. The fact that Jolly was paid money for these checks under the circumstances alleged does not as contended by appellee in law constitute “a payment to plaintiff.”

Although plaintiff alleged that none of the checks in question were ever indorsed by plaintiff or by any agent or employee authorized to do so and that said checks were cashed by Jolly without any authority from plaintiff, plaintiff did not make a sworn denial of the genuineness of the indorsements on said checks as required by Rule 93, Vernon’s Ann.Rules of Civil Procedure. Appellee Frost National Bank urged numerous exceptions to plaintiff’s pleadings but no exception was made because of plaintiff’s failure to deny under oath the authenticity of the indorsements on said checks. In appellee’s 8th counter point this matter is raised for the first time, and appellee contends that by reason of Rule 93, the indorsements of said checks are required to be held as fully approved, and that appellant Heusinger Hardware Company is not entitled to urge any contention to the contrary before this court. In our opinion appellee’s contention in this respect is not well taken.

It is generally held that the absence of a required verification is a defect which may be waived, although the requirement for verification of a plea of non est factum is not waived by the mere failure to except to the lack of verification. In such cases an objection to testimony tending to show the lack of authority of an agent would be well taken. As stated in Volume 2 McDonald, Tex.Civil Practice, pages 657, 658, “Where the defective plea is in the nature of a denial, and if effective would impose on the pleader’s opponent an additional onus of proof the opponent is not required to except specially. The defective plea is insufficient to require him to make proof and he avoids a waiver of the pleading defect by objecting to any evidence tendered by the pleader or any questions on cross-examination, tending to raise the issue.”

From the above it is apparent that plaintiff’s failure to verify under oath its allegation denying the execution by itself or by its authority of the indorsement on the checks is not such a defect that could not be waived upon a trial of the case. The unverified plea was ineffective to place upon appellee Frost National Bank the burden of proving the indorsement of said checks by Heusinger Hardware Company even though the bank did not except to the plea or move to strike it. An exception by appellee complaining of the defective plea of denial of authority to indorse would have been well taken. It would not, however, be proper to uphold the action of the court in sustaining the exceptions to plaintiff’s pleadings on other grounds which were not well taken because of another and different defect in the pleading which was subject to exception if it had been made. To sustain appellee’s contention in this respect would, in effect, be the equivalent of sustaining a general demurrer, or of holding that it would be fundamental error under any circumstances to enter a judgment based upon a pleading which was not verified according to the requirements of Rule 93, supra. Appellant’s counter point 8 is not well taken. In Standard Underground Cable Co. v. Southern Independent Telephone Co., Tex.Civ.App., 134 S.W. 429 (Writ Ref.), it is-stated that the effect of a defective plea of non est factum when not objected to is that it “merely shifts the burden of proof of the-contract to the defendant.”

We find no merit in appellee’s contention that its exceptions to the allegations-in plaintiff’s petition are good particularly in view of facts and admissions shown in depositions which appellant contends are-detrimental to plaintiff’s position. Generally the facts alleged in plaintiff’s petition are taken as true in passing upon exceptions thereto. State v. Clark, 161 Tex. 10, 336 S.W.2d 612; Thomas v. Texas Osage Co-op Royalty Pool, Tex.Civ.App., 248 S.W.2d 201 (Ref. N.R.E.). In any event we find no-testimony or admissions presented at the pretrial proceeding which constitute a bar to plaintiff’s right to recover. Provident Life & Accident Ins. Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805. The court erred in-sustaining appellant’s exceptions to plaintiff’s petition and erred in dismissing plaintiff’s suit.

We overrule plaintiff’s 6th point-in which it is contended that the court erred' in overruling its motion for summary judgment. As heretofore noted plaintiff did not deny under oath the genuineness of the in-dorsements on the checks in question upon-which this suit is brought. It has been held! proper for a trial court to refuse to submit issues under a defendant’s unverified plea denying individual liability on a contract sued upon even though evidence thereon was heard without objection. Thomason v. Berry (Tex.Com.App.), 276 S.W. 185. In any event appellant Heusinger Hardware Company by reason of its failure to verify-its plea of lack of authority on the part of its agent Jolly to indorse the checks had the burden of showing such lack of authority. To show such lack of authority appellant relies upon the deposition testimony of its own officers Heusinger and O’Brien. Since Heusinger was an interested party the testimony of its officers, even though not contradicted is not under the circumstances conclusive, but presents only a question of fact to be determined upon a trial of the case. James T. Taylor, etc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371. Plaintiff Heusinger Hardware Company did not clearly prove its right to a summary judgment and the court did not err in refusing same.

We have carefully considered, but cannot agree with, appellee’s counter points and other contentions in support of the judgment. Por the reasons stated the judgment is reversed and the cause is remanded for trial.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    Leonard DENTON et al., Appellants, v. L. D. BENNETT et al., Appellees.
    No. 16400.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 25, 1963.
    Rehearing Denied March 1, 1963.
    Fannin & Fannin, and Oliver W. Fannin, Jr., and H. J. Loe, Fort Worth, for appellants.
    W. J. Durham, Dallas, and L. Clifford Davis, Fort Worth, for appellees.
   RENFRO, Justice.

Appellant Denton and some other members of Baker Chapel African Methodist Episcopal Church of Fort Worth brought suit against the trustees of said Church to have declared invalid a vendor’s lien note and deed of trust theretofore executed by the trustees in connection with the purchase of a parsonage for the Church. The appellants also sought a permanent injunction against the holder of the note prohibiting her from attempting to collect such note.

It was alleged that the purchase of the parsonage and creation of the indebtedness was without authority of the congregation and in violation of both civil law and the controlling law of the Church as expressed in its A. M. E. Discipline.

After a. lengthy trial before the court without a jury, all relief asked by appellants was denied.

On appeal, appellants contend the court erred in holding that the action of the trustees of the Baker Chapel A. M. E. Church in purchasing the parsonage, executing a note and deed of trust was within the scope of their authority.

The court was not requested to make findings of fact and conclusions of law.

The judgment, however, recited that “the general church, African Methodist Episcopal Church, adopted written rules and regulations governing the affairs of the general church, and the Baker Chapel African Methodist E’piscopal Church, known and designated as the ‘I960 Edition Book of Discipline of the African Methodist Episcopal Church’ and that said Book of Discipline * * * provides: ‘Duties of Trustees 1. The trustees shall manage all the temporal concerns of the Church not otherwise provided for, and shall have a treasurer of the Board elected by the Board. 4. They shall procure by purchase or hire a house for the preacher’s family and also comfortably furnish it for them and pay the expense of moving thereto.’ That each of the above and foregoing provisions of said Book of Discipline were valid, binding and subsisting rules and regulations of the general church and the Baker Chapel African Methodist Episcopal Church at all times material to this suit”; that the trustees involved were the duly elected, qualified and acting trustees of the local Church as of the date of the execution of the note and deed of trust; “that the church membership of Baker Chapel AME Church at a church conference held in accordance with the discipline on October 2, 1958, empowered the trustees to look out for and enter negotiations to purchase a parsonage; that the church membership of Baker Chapel AME Church, at a church conference held in accordance with the discipline on July 18, 1960, empowered the trustees to continue to look out for and make purchase of a parsonage; that at a quarterly conference held at Baker Chapel AME Church, in accordance with the discipline on December 12, 1960, said quarterly conference endorsed the authority given the trustees of Baker Chapel Church by the church conferences to purchase a parsonage; that said action of the church membership of Baker Chapel AME Church at the church conferences and the quarterly conference authorized the trustees to purchase a parsonage; that said trustees, acting under authority granted by the church membership'of Baker Chapel AME Church and endorsed by the quarterly conference of Baker Chapel AME Church, did look out for, enter negotiation for, and purchased on January 5, 1962, a parsonage for the minister of said Baker Chapel AME Church; * * * that the action of the trustees of Baker Chapel AME Church in purchasing a parsonage at 1037 Morning-side Drive, Fort Worth, Texas, for the minister, and purchasing furniture for said parsonage, was within the scope of their authority and duty, and was in accordance with the discipline of the Baker Chapel AME Church and of the African Methodist Episcopal Church.”

The court, as trier of the facts, was, of course, the sole judge of the credibility of the witnesses and the weight to be given their testimony.

Much of the evidence was uncontradict-ed; some was contradicted. Some of the testimony was confusing and indefinite.

The court was not bound by testimony of any one witness but could accept 'all, part., or none thereof, or he could accept part of the testimony of one witness and part of another, or draw his own deductions from all the evidence.

An appellate court will not disturb the findings of the trial court if there is some evidence of probative value to support same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him. Googins v. E. W. Hable & Sons, Tex.Civ.App., 237 S.W.2d 705.

Viewing the evidence in the light most favorable to the judgment, there was evidence of probative value to uphold the finding and conclusion that the trustees acted within the scope of their authority.

Judgment affirmed.


author: LANGDON, Justice.

text:
    The TRAVELERS INSURANCE COMPANY et al., Appellants, v. Linda Louise FOX et vir, Appellees.
    No. 16401.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 1, 1963.
    Rehearing Denied March 1, 1963.

      Baker, Botts, Shepherd & Coates, and Walter E. Workman, Houston, for appellant The Travelers Ins. Co.
    Raymond L. McDermott, Houston, for appellant Judy Lewis.
    L. J. Able and Nick C. Nichols, Houston, and J. M. Donald, Jacksboro, for appellees.
   LANGDON, Justice.

On September 20, 1960, Lester Bruce Lewis received fatal injuries while employed by Woods Home Improvements in Harris County, Texas. His death was reported to the Industrial Accident Board by the employer. The carrier, The Travelers Insurance Company, commenced payment of compensation benefits to Mrs. Judy Lewis,. the widow of the deceased, within the week. On October 21, 1960, the Board received notification of a claim for Mrs. Fox, appel-lee herein, alleging that she was the surviving minor daughter of the deceased by a prior marriage, and reciting further that the deceased refused to support said (former) wife and children.

■ On November 14, 1960, Travelers wrote-the Board, with copies designated for the attorneys for both Mrs. Lewis and Mrs. Fox. It acknowledged that there appeared, to be two claimants to the statutory benefits. Thereafter, Mrs. Lewis and Travelers entered into a lump sum payment agreement for one-half of the benefits, it being established and undisputed that the surviving widow, Mrs. Judy Lewis, was entitled to-one-half of the benefits. The lump sum. agreement was authorized and approved by order of the Board dated December 21, 1960. The agreement and the Board’s order approving same specifically provided that Mrs. Lewis reserved all of her rights and claims-to the remaining one-half of the benefits as-against all other claimants. In a letter to the Board on December 28, 1960, Mrs. Lewis reiterated her claim and requested setting and hearing at an early date.

On January 13, 1961, the Board wrote to the attorney for Mrs. Fox advising that that the insurance carrier had accepted liability ; that as soon as the beneficiaries had been established the carrier would commence compensation payments. The attorney was requested to submit necessary information at his earliest convenience for the Board’s consideration in a hearing to determine the legal beneficiaries.

The record clearly establishes that both Mrs. Lewis and Mrs. Fox were asserting claim to the remaining one-half of the compensation.

The Board set the claims for hearing on the merits on May 30, 1961. On that date Travelers submitted its statement and evidence as follows: “Carrier has accepted full liability on this case. The only reason for with holding the remaining one-half of fatal benefits under the Workmen’s Compensation Act is the establishment of the legally constituted beneficiaries.” On June 1, 1961, the Board made its award in which it denied the claim of Mrs. Lewis to the remaining one-half of the benefits and ordered Travelers to pay same to Mrs. Fox.

Mrs. Lewis gave her written notice of dissatisfaction with the award and intention to appeal therefrom, which was filed with the Board on June 5, 1961.

By copies of letter dated June 6, the Board advised Mrs. Fox and her attorney of this development. On June 17,1961, Mrs. Lewis filed a suit styled Mrs. Judy Lewis v. The Travelers Insurance Company, No. 573,433 in the 127th Judicial District Court of Harris County, Texas. Travelers was duly served and answered in said case. The suit in Harris County is still pending. Mrs. Fox was not made a party to the suit nor personally served therein.

On August 18, 1961, approximately 2 months after Mrs. Lewis had filed suit in Harris County to appeal the award, the attorneys for Mrs. Fox wrote Travelers requesting payment under the Board’s award. Travelers replied, expressing regrets at being unable to comply because of the Harris County Suit and furnished information concerning the suit instituted by Mrs. Judy Lewis.

On September 22, 1961, some three months after Mrs. Lewis filed suit in Harris County, this suit was instituted by Mrs. Fox, appellee herein, in the District Court of Jack County to (1) enforce the Board’s award, (2) collect statutory penalties and attorneys fees, and (3) to enjoin proceedings in the suit previously filed by Mrs. Judy Lewis in Harris County under Sec. 5, Art. 8307, Vernon’s Ann.Civ.St. in an appeal from the Board’s award.

The case filed by Mrs. Lewis in Harris County was set for June 4, 1962, and the case filed by Mrs. Fox in Jack County was set for May 14, 1962.

In answer to this suit in Jack County, Travelers filed a sworn plea to the jurisdiction, asserting that the award upon which the suit was based had been appealed from and was therefore vacated. Mrs. Lewis filed a plea of privilege and a plea in abatement, the latter based upon the same jurisdictional grounds as Travelers’ plea to the jurisdiction. The trial court overruled these pleas to which action appellants duly excepted.

The case proceeded to trial without a jury in the District Court of Jack County on May 24, 1962. On the same date the trial court entered judgment as prayed for by appellee enforcing the award of the Board, awarding statutory penalties and attorneys fees and enjoining further proceedings in the pending case filed by Mrs. Lewis in the 127th District Court of Harris County.

This appeal which seeks to set aside the judgment of the trial court is based primarily on the proposition that the District Court of Jack County did not have jurisdiction over the suit filed by Mrs. Fox to enforce the Board’s award because of the prior appeal from such award filed by Mrs. Lewis in Harris County.

It is well settled in this state that when an appeal is taken from the action of the Industrial Accident Board by proper suit in the District Court that the order of the Board becomes a nullity. The Travelers Insurance Company v. Molinar, Tex.Civ.App., 331 S.W.2d 503, ref. n. r. e.

Sec. 5, Art. 8307,. V.A.T.S. provides in substance that any interested party who is unwilling to abide the final ruling of the Board shall, within 20 days after such ruling file notice with the Board of such unwillingness. That within 20 days after such notice he shall bring suit in the county where the injury occurred to set aside said final ruling and said Board shall proceed no further toward the adjustment of such claim. That once such suit is filed the rights and liabilities of the parties thereto shall be determined by the provisions of this law, and the suit of persons suing on account of the death of such employee shall be against the association.

In our opinion Mrs. Lewis fully complied with all of the provisions of Sec. 5 and therefore under the holding of the Molinar case, supra, the appeal filed by her in Harris County was a “proper suit”.

The record clearly reflects that Mrs. Lewis is an interested party. It is without dispute that she filed timely notice (within the 20 day period) of her unwillingness to abide by the final ruling of the Board and that within the prescribed 20 day period after such notice she filed suit against the association, the Travelers Insurance Company in Harris County, where the injury occurred, to set aside the Board’s award. Travelers has been served in such suit and has filed an answer. The suit is still pending in Harris County.

It is our opinion under the settled law of this state that upon the filing of the suit by Mrs. Lewis in Harris County in compliance with the requirements of Sec. 5 that the final award, rulings, orders and decisions of the Industrial Accident Board were completely vacated, nullified, suspended and set aside as to all parties and issues involved. That the entire subject matter before the Board including all parties and issues were brought before the District Court of Harris County for a trial de novo.

It therefore follows that since the Board’s award has been vacated by the appeal perfected by Mrs. Lewis it could not be made the basis of a suit in Jack County to enforce it. Maryland Casualty Co. v. Baker et al., 277 S.W. 204 (Tex.Civ.App., Waco), 1925, writ refused.

The decision in the case of Maryland Casualty Co. v. Baker was expressly approved by the commission of appeals in Southern Casualty Co. v. Fulkerson, Tex.Com.App., 45 S.W.2d 152 (p. 155). In its opinion the Commission of appeals stated: “As further proof that it is the evident and plain purpose and intent of the statute to confer jurisdiction on the court to hear and determine the entire case, both as to issues and parties, when one interested party appeals from the board to the court it will be noted that the statute further provides:

“(a) ‘Said Board shall proceed no further toward the adjudgment of such claim.’

“(b) ‘Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this law.’

“(c) ‘The court shall in either event determine the issues in such cause instead of the board upon trial de novo.’ ”

Since the procedural steps contained in Sec. 5, Art. 8307 as prescribed by the legislature are both mandatory and jurisdictional, our courts have closely scrutinized the language and requirements thereof many times. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674; Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677.

According to the various cases interpreting it, the apparent purpose of the statute is to permit any interested party who is brought under the jurisdiction of the Board to appeal the entire case to the District Court and thereby vest such Court with jurisdiction to preside over the litigation involving the several parties who were before the Board and to try the case for every purpose and to the same extent as though it had been originally instituted in such court.

Under the act the jurisdiction of the district court is not invoked as at common law. It is established by the act itself as the next succeeding statutory agency for review, its jurisdiction to be invoked by timely notice and appeal as provided by the act.

The Supreme Court in Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692, stated that to try a case de novo “vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.” In Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, at 622, the Supreme Court said: “The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified. Examples of that type of trial are found in our statutes applicable to appeals from Justice Court judgments and from awards made by the Industrial Accident Board.”

When an appeal has been perfected under Sec. 5 this advanced stage of the proceeding is unlike a suit at common law, because the court cannot acquire or exercise jurisdiction over any new party or claim. The jurisdiction of the court involves only the parties or claims over which the jurisdiction of the Board was first invoked. The court in the county where the injury occurred is the only court vested by statute with the power to re-determine the matters over which the Board exercised or could properly have exercised its original jurisdiction. Associated Indemnity Corporation v. Peel, Tex.Civ.App., 157 S.W.2d 416; Maryland Casualty Co. v. Moore, Tex.Civ.App., 74 S.W.2d 769, affirmed 129 Tex. 174, 102 S.W.2d 1118; Texas Employers’ Ins. Ass’n v. Bradshaw, Tex.Civ.App., 27 S.W.2d 314.

In a case such as this where there is a party over whose claim the jurisdiction of the Board was properly invoked, but who is not made a party or named in the suit brought to set aside the award, the claim of such party is nonetheless before the court and such party has the privilege and perhaps the duty to pursue his claim by appropriate pleading in such court. Such pleading may be in the form of an intervention, cross-action or by way of counterclaim.

In their brief answering the appellants the appellees concede that if Mrs. Judy Lewis had a real interest in the award made in favor of Mrs. Fox against the Travelers Insurance Company and had notice of her unwillingness to abide by the award of the board and had filed suit naming all parties, especially appellant as defendant, then such an appeal would have removed finality of the award.

In Associated Indemnity Corporation v. Peel, Tex.Civ.App., 157 S.W.2d 416, the beneficiaries asserted their compensation death claim before the Board. Peel concurrently filed his assigned claim for the funeral expenses and apparently filed no evidence to support his claim. It therefore was not mentioned in the Board’s award. The insurer then brought suit against the beneficiaries only, to set aside the award. Although Peel was never made a party to this suit, the court nevertheless proceeded to judgment. Thereafter, Peel went back to the Board and by asserting his claim again, he secured the entry of a second award, which was appealed by the insurer. The insurer contended that neither the Board nor the Court had subject-matter jurisdiction over Peel’s claim, since his claim had been impliedly denied in the first award and Peel had then failed to further prosecute his claim by cross-action or intervention in the prior suit brought to set aside the first award. In the Court of Civil Appeals, the trial court’s judgment in Peel’s favor was reversed, the court holding as follows (157 S.W.2d at 417-418):

“When the Board adjudicated the claim of the beneficiaries without affirmatively disposing of appellee’s (Peel’s) incidental claim, the effect was a denial of that claim.

“When the insurance carrier appealed to the District Court from the award made by the Board on the principal claim, such appeal had the effect of depriving the Baard of all jurisdiction of the principal as well as incidental claims, and of transferring to the District Court appellee’s claim and all other matters which could have been adjudicated by the Board, whether affirmatively disposed of therein or not. * * *

“Appellee’s remedy in such case was to exercise his privilege to assert his claim by way of cross-action in appellant’s appeal in the District Court. * * *

“The Industrial Accident Board having denied appellee’s claim, by implication, its jurisdiction thereover was exhausted, and appellee having failed to prosecute his claim in the District Court, while it had jurisdiction thereover on appeal, appellee was thereby cut off from renewing his claim before the Board, whose jurisdiction thereover had been previously invoked by him and exhausted.

“The Board being without jurisdiction to revive the claim, the County Court was likewise without jurisdiction to entertain an appeal from the Board’s award thereon, and the County Court being without jurisdiction, this Court has none.

“The judgment of the County Court is accordingly .reversed and the cause, including appellee’s cross-action in the County Court, is dismissed, at appellee’s cost.”

Under the holding in the Peel case the appeal to set aside the first award vested the district court with subject matter jurisdiction over Peel’s claim although the court did not acquire common law in personam jurisdiction as to Peel. The same conclusion was reached in Holveck v. Phoenix Indemnity Co., 101 F.Supp. 537 (N.D.Tex.1952) in a similar case.

The case of Industrial Accident Bd. v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 342 S.W.2d 213, ref. n. r. e., is very similar to this case. The court held in part as follows : “Appellee’s (TEIA) position is that the primary question is whether one party perfecting its appeal has the effect of bringing all issues and parties before the District Court where the case is filed, or whether the award becomes final as to a party which does not appeal, and (TEIA) say that an appeal by any party has the effect of bringing all issues and parties before the District Court and amounts to an annulment or suspension of the Board’s award.

* * * * * *

“We believe and conclude that the notice of appeal by the alleged claimants and the institution of the suit in the District Court of Andrews County, Texas, had the effect of bringing all issues and parties before that court, and amounted to an annulment or suspension of the Board’s award, * *

⅜ ⅜ ⅜ H? ⅜ ⅜

“The appeal having been timely made and a suit filed in the District Court of Andrews County, that Court acquired jurisdiction to determine whether or not the plaintiffs therein are in fact the legal beneficiaries and proper claimants of the- deceased employee.

“The judgment of the Trial Court (sustaining the insurer’s plea to the jurisdiction) is affirmed.”

For a similar conclusion and holding see Texas Employers Ins. Ass’n v. Nitcholas, Tex.Civ.App., 328 S.W.2d 338 in which it is stated: “We agree with appellant. In one action, No. R-11478, and one award on May 2, 1957 the Industrial Accident Board disposed of two .related claims and the two parties who filed them. The appeal of John W. Nitcholas from this award had the effect of setting aside the award in its entirety as to both claims and both parties. When Nitcholas perfected his appeal by filing his suit in District Court, the award of the Board was vacated as to both Nitcholas and Jackson Clinic. The effect of the appeal by Nitcholas was to give the District Court jurisdiction of all parties to the award. The burden was then on Jackson Clinic as well as Nitcholas to prosecute its claim to judgment in the District Court.”

Under the authorities it appears without question that even though the appellees were necessary parties to the suit filed by Mrs. Lewis that her failure to make them parties would not defeat the jurisdiction of the Harris County Court. Mrs. Fox may join or be joined in the suit in Harris County. Mrs. Lewis had and still has the right to join appellees by amendment of her pleadings and the District Court of Harris County is under a duty to permit this action. Jago v. Indemnity Ins. Co. of North America, 120 Tex. 204, 36 S.W.2d 980.

It is unnecessary to consider other assignments of error in view of the disposition which we have concluded must be made in this case. All of the points raised by the appellants challenging the right of the District Court of Jack County to entertain jurisdiction of the subject matter of this suit are sustained.

The case is reversed and remanded and the trial court is instructed to dismiss same for lack of jurisdiction. Costs in the court below and on this appeal are assessed against appellee.

Reversed and remanded.


author: ARCHER, Chief Justice.

text:
    Harold W. ADAMS, Appellant, v. Kermit K. KLOEPPER, Appellee.
    No. 11042.
    Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1963.
    Schleyer, Bartram, Reagan & Burrus, New Braunfels, for appellant.

      Mark V. Fuchs, New- Braunfels, for ap-pellee.
   ARCHER, Chief Justice.

This suit was filed by appellant against appellee as the sole heir of Richard E. Kloepper, deceased, for the recovery of a partnership interest in certain shares of stock in Mission Valley Mills, Inc. and dividends paid thereon.

Harold Adams, appellant, and Richard E. Kloepper were friends and long time associates in business. They were both officials in banks in New Braunfels, Texas, and on and prior to 1931, partners in an insurance agency, and purchased and sold various stocks. In 1931 one share in the New Braunfels Textile Mills was purchased for $50.00 and the certificate was issued to Richard E. Kloepper. Other stock purchases were in the joint name- of the partners. All such certificates were given to Mr. Adams for safekeeping. The one share, subject of this litigation, was placed in Adams’ custody, who, according to his testimony, put the initials “K and A” on the certificate.

From time to time sales of stock were made by the partnership and the amounts deposited in a joint account. No dividends were paid on the share in the mills until 1942 when a cash dividend of $2.50 was paid. In 1945 a stock dividend was declared on a ratio of eight shares for one in 1949, the stock was split five to one, and in 1957 a split of three for one was made, so that the one share is now represented by 120 shares, and dividends aggregating $2,223.60 had been paid as of trial date.

•In 1946 Richard E. Kloepper made an affidavit that the original certificate had been lost and requested and was issued a new certificate.

In January 1960 Mr. Adams asked Kermit Kloepper for a meeting so the partnership assets could be settled and learned of the affidavit and the issuance of the new certificate, arid failing in a settlement, filed this suit.

The appeal is based on two points directed to the error of the court in excluding testimony concerning transactions with the deceased, and in failing to establish an express or resulting trust.

At the beginning of the trial the court did sustain objections to certain testimony offered by plaintiff as coming under the prohibition of Article 3716, Vernon’s Ann.Civ. St., concerning transactions with the deceased. The testimony was claimed by appellant to be admissible because the appellee had taken the depositions of Adams and Herbert Seibert, and cited Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801.

Subsequently the court made the following ruling:

“THE COURT: All right. The Court is now going to change its ruling and let the whole thing in. Overrule your obj ection.”

We therefore do not believe the first point to be of further merit.

Point No. 2 is that the overwhelming preponderance of the evidence showed that either an express trust had been created or that a resulting trust occurred.

Appellee takes the position that the evidence of appellant did not meet the requirements of the law to establish a trust, as such was not clear, satisfactory and convincing.

The testimony on which appellant relies does not establish part ownership in the stock by clear, definite and convincing evidence in our opinion, and the court being the trier of the facts and the judge of the sufficiency of the evidence, and having resolved such in favor of the appellee, we would not be justified in disturbing the judgment, unless it was so against the overwhelming preponderance of the evidence as to be clearly wrong and unjust.

The appellant is a capable business man and at all times was in a position to have the certificate changed to that of joint ownership had he had an interest therein, but did not.

The appellant testified as to his association with Mr. Richard E. Kloepper as fellow officers in hanks, and of the joint ownership of an insurance agency until such was dissolved in 1932, at which time Kloep-per took such business. The witness detailed the purchases of various stocks and shares, and that all such purchases were from partnership funds, all such stocks were issued in the name of both Adams and Kloepper except the one share which was, as stated, issued in the name of Kloepper only, and that the initials “K and A” were written on the certificate by the witness. He further detailed circumstances and conditions existing at the time of the purchase and that in 1960 in a discussion with Kermit Kloep-per he told Kloepper that he owned a half-interest in the stock.

The witness testified that he had forgotten all about the stock, but that it was purchased by both Kloepper and Adams from their insurance account, but that he did not have any proof.

The following is taken from the statement of facts:

“THE COURT: The objection to the statement, T certainly wouldn’t have had that one if it didn’t belong to the partnership,’ and also, ‘There was no reason at all why he would have given me that certificate, other than that it belong to both of us,’ objection to that is sustained.
“MR. SCHLEYER: May it please the Court, we urge the fact that it is admissible, first of all because the testimony is elicited by Kermit Kloepper’s counsel on cross examination, and it was responsive to the question that was asked, and we offer it on the bill.
“Would your read it, please?
“THE COURT: All right. The Court is now going to change its ruling and let the whole thing in. Overrule your objection.
“MR. FUCHS: Note iny exception, for the reasons I have stated.
“THE COURT: All right.
“‘A. No proof. No, I have no proof. No proof other than I was taking care of the other stock certificates, and I certainly wouldn’t have had that one if it didn’t belong to the partnership. Mr. Kloepper was certainly able to take care of his own affairs. He didn’t have to trust me. I didn’t have to be custodian of anything that belonged to him. I never have. All the time we were in the bank together, he had a little black box he kept in the vault, it was locked, where he had all his certificates, whatever he owned, deeds and everything, he had in that box sitting in the main vault on the shelf. So there was no reason at all why he would have given me that certificate, other than that it belonged to both of us.’ ”

By deposition on cross- examination Mr. Adams testified that he assisted Mr. Kloep-per from time to time in his insurance business and after Richard E. Kloepper’s death he accepted from Kermit Kloepper deposits in the years 1951 and 1952, some of which were from New Braunfels Textile Mill, and might have commented on such dividends as being good.

The presumption is that title to’ the certificate was vested in Richard E. Kloep-per, being the only person named therein.

The appellant had knowledge of the manner in which the certificate was issued and is chargeable with the facts and should have made further inquiry and is not excused in failing to discover the fraud, if such there be. 28 Tex.Jur., Sec. 70, p. 159.

The Rule is stated in 3-B Tex.Jur., Sec. 892, p. 327. Couch v. Sparger et al., Tex.Civ.App., 252 S.W. 817, no. writ- history. -

Since we are affirming the judgment of the Trial Court in rendering judgment, it is not necessary to pass on the questions of laches or limitation.

The judgment of the Trial Court is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    Kenneth L. MUSGRAVE, Appellant, v. Busby CARROLL et ux., Appellees.
    No. 3773.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 8, 1963.
    Rehearing Denied March 1, 1963.
    Smith & Erwin, Abilene, for appellant.
    Eplen, Daniel, Hooper & Dickson, Abilene, for appellees.
   WALTER, Justice.

Kenneth L. Musgrave contracted with Busby Carroll and wife to build them a house. The Carrolls filed suit against Mus-grave and alleged that the defendant failed to substantially perform in that he failed to construct the house in a good and workmanlike manner and in accordance with the plans and specifications. The defendant pleaded that the major damages were caused by shifting soil.

The jury found that the defendant failed to complete the house in accordance with the plans and specifications; that the reasonable cash market value of the house would have been $20,000.00, if it had been so completed; that $14,000.00 was the reasonable cash market value of the house in its present condition; that the foundation had not shifted and that the defects in the house could not be remedied without impairing the building as a whole. Judgment was rendered for the plaintiff for $6,000.00. The defendant has appealed.

Appellant contends that the court erred in overruling his motion for a mistrial. The appellee, Busby Car.roll, was asked on direct examination if appellant and his attorneys had been given an opportunity to visit his house since suit was filed. He answered that they had. He was then asked “And would you tell the jury whether or not they have had the opportunity to bring people to look at your house with them?” and he answered “They have brought people. They brought building contractors, and they brought people, concrete people and so on and so forth; and I permitted them to come in there and test any portion of it they wanted to, and I would like to extend at this time to the jury and Judge and all to come out and visit my property.” Counsel for appellant asked for a mistrial which was denied. Counsel for appellant renewed his motion for a mistrial and the following proceedings occurred:

“MR. SMITH: I want to move now for a mistrial, because — because he offered to let the jury go out and look at the house and look at the premises.
“THE COURT: I won’t let them go.
“MR. SMITH: Sir?
“THE COURT: I won’t let them go.”

Appellant relies upon the case of Woodrum Truck Lines v. Bailey, 57 S.W.2d 92, (Tex.Com.App.), decided in 1933. Bailey had filed suit against Woodrum for damages alleged to have been sustained by him as a result of a collision. The jury found no negligence against Woodrum and that Bailey was not guilty of contributory negligence and that the collision was the result of an unavoidable accident. Judgment was rendered in favor of Woodrum. During the course of the trial defendant’s counsel requested the court to permit the jury to go to the place of the accident and there view the surroundings. Plaintiff asked for a mistrial. The Court of Civil Appeals held “Since the action taken was reasonably calculated to prejudice the right of plaintiff, such an injury will be presumed, in the absence of any showing in the record that it did not operate to plaintiff’s harm.” Bailey v. Woodrum Truck Lines, Tex.Civ.App., 36 S.W.2d 1090. The Commission of Appeals affirmed the judgment of the Court of Civil Appeals.

The court applied the doctrine of “presumed injury” in the Woodrum case. We recognize that Woodrum v. Bailey stands for the proposition that it is error for counsel to invite the jury to visit the scene of the accident, but the .rule of “presumed injury” has not prevailed in Texas since the adoption of Rule 434 of the Texas Rules of Civil Procedure. The Development of the Doctrine of Harmless Error in Texas, 31 Texas Law Review, Page 1; Walker v. Texas Employers Insurance Ass’n., 155 Tex. 617, 291 S.W.2d 298. The burden is upon the appellant to show that the error complained of “was reasonably calculated to cause, and probably did cause the rendi-tio’n of an improper judgment in the case”, before the appellate court is justified in reversing the judgment. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860. The appellant did not make a motion that the court instruct the. jury not to consider the voluntary statement o,f the witness. The •court, however, intervened and said “I won’t let them go.” This statement was repeated by the court when appellant’s counsel apparently did not understand him. The court of its own motion intervened and assumed the responsibility of refusing to let the jury visit Carroll’s property. Airline Motor Coaches, Inc. v. Fields, Tex.Civ.App., 159 S.W.2d 187; American National Insurance Company v. Hammond, Tex.Civ.App., 91 S.W.2d 432. Considering the entire record, we are not convinced that the unresponsive statement of the witness was reasonably calculated to cause, and probably did cause the rendition of an improper verdict.

Appellant contends the court erred in submitting special issue number 3. Special issues numbers 2 and 3 and the jury’s answers thereto are as follows:

“SPECIAL ISSUE NO. 2 — What do you find from a preponderance of the evidence to be the reasonable cash market value of the house, if such house had been constructed according to the plans and specifications?
“ANSWER: $20,000.00.
“SPECIAL ISSUE NO. 3 — What do you find from a preponderance of the evidence to be the reasonable cash market value of the Carroll house in its present condition? Answer in dollars and cents.
“ANSWER: $14,000.00.”

Appellant made no objection to special issue number 2. His objection to special issue number 3 was that “Said issue calls for the value of the house in its present condition instead of calling for the value of the house at the time .it was actually finished and before it had been lived in for a year and a half by the plaintiffs.”

The appellant contends in his brief that “ — the court should have taken into consideration in the charge to the jury the nine1teen (19) months of occupancy, the depreciation, plus the acts of the Appellees which deliberately permitted further damage and waste to occur. This the trial court refused to do.” The appellees contend that the appellant did not object to the issue on the ground that it failed to include depreciation and that appellees deliberately permitted waste and damage. Rule 274 of Texas Rules of Civil Procedure requires a party to distinctly point out the matter to which he objects and the grounds of his objection, Appellees’ contention is well taken. On appeal a party is confined to the objections made in the trial court to the court’s charge. Traders & General Insurance Company v. Davis, Tex.Civ.App., 209 S.W.2d 963.

Appellant pleaded “That thereafter the damages or major damages, herein complained of occurred due to the fact that soil in Radford Hills is shifting soil and that the shifting of the foundation caused the major trouble; that the Defendant, having completed the house as aforesaid, is not liable to Plaintiffs because of any damages resulting from the shifting of the foundation of said house.” The jury found against him on this issue.

The appellee Busby Carroll testified to approximately twenty defects he found in his house such as the wall between the hallway and the living room being completely raised from the foundation; the tile in the bathroom being broken loose; in one bedroom the foundation has pulled away from the wall; the paneling in the hall has slipped; there is a crack in the fireplace; the sink tile in the kitchen is loose; the tile has fallen off the edges of the bar; there is a crack in the living room from the ceiling to the floor. He further testified about cracks in the foundation and cracks in the brick on the outside of his house. After testifying about all these defects he was then asked, “Now, Mr. Carroll, these facts you testified to, the condition of your house you testified to, as evidenced by the pictures we have seen, when did this condition start taking place ?” and he answered “They started before Christmas. In other words, we moved in — I am not sure. Somewhere around December 11, 12, 13, or 14, somewhere in that neighborhood,” and then he was asked “Now, this is 1960, I believe?” and he answered “I am talking about 1960 after we moved in.” He further testified that when he moved into the house there were some items called for in the plans and specifications that had not been finished, namely, the moulding around the den had not been painted, tile in the den had not been finished and the shutters on the front windows had not been installed.

Appellant testified that the loan on the house was closed in December, 1960, and that the defects in the house began to develop six or seven months later. He was permitted to testify that none of the damage to the house was due to his “fault in building the house.” He was then asked “How would you remedy the situation as you now find it?” and he answered “Well, from the looks of the pictures and all there, it appears that the outside beams have raised, leaving the center of the foundation in exactly the same position that it was in, pulling the plate from the floor, the slab. The only way I would know you could fix it would be to go in there and put a hard oak shim under each one of your studs, which is every sixteen inches. Of course, you would have to take your base off first. And you would have to grout it with cement grout and' put your base back down. You would have to cut out where all your cracks are, and remud and tape and paint. You would have to reset your doors. Take your doors out and rehang them. There is one crack in the living room that looks mighty bad. You might have to put a whole new piece of sheet rock there. The brick on the outside, it looks like there is two places where it is cracked. You would need to replace some brick there. And you could ask twenty builders how to do it, and you. would get twenty different answers.” He further testified that after repairing the building in this manner it would be in good shape; that it would remain that way unless there was another shifting or movement in the soil.

A cement contractor testified he had examined the Carroll house and found that the floor seemed to be settling in the center of the house. He said if the sand which is placed under the slab is not thoroughly tamped and wet, the cement will eventually settle. When asked “And by your examination, have you formed an opinion as to the condition of that sand underneath the contract — underneath the concrete?” he answered “Well, they had some type of sand, it didn’t appear — it was a type of a red sand; but it didn’t seem to be — seem like might be some soil in that sand.” He further testified as follows: The reason for tamping the sand is to prevent the sand from settling. When it settles the concrete slab will go down with it. In his opinion the sand was not thoroughly tamped. He examined some of the core holes that had been drilled in the slab. He examined the one that was in a cross beam and found it to be 8 inches. The plans and specifications called for it to be 16 inches minimum. He measured another core hole in the hall and found it to be about 2i/£ inches. The plans and specifications called for it to be 4 inches.

A real estate appraiser testified he had examined the Carroll house and found it badly damaged because the foundation had given away. He found the slab in the' middle of the living room floor was 1¾ inches below level and that certain parts of the foundation were not up to specifications. He stated that in his opinion this condition was occasioned by a poorly poured foundation.

In Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943, the court was considering the question of a proper rule for measuring the damages for breach of a contract to construct a house and the court said: "To summarize, we hold that the trial court’s judgment was based upon an incorrect measure of damages; that the true measure of damages is the difference in value between the building as it stood at the time of the trial, with allowance for Chambless’ failure, if any, to paint the doors and woodwork, and its value had it been constructed according to the contract; that the special issues submitting that measure of damages were improperly framed; and that the error in the manner of submitting them necessitates a reversal of the case.” The court submitted special issue number 3 in compliance with the rule announced in Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943. Appellant contends that what the court said about the correct measure of damages in that case was dicta. He contends that special issue number 3 should have been submitted under the rule announced in Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530 (no writ history). The rule there stated is as follows : “ * * * and, where the defects cannot be remedied without impairing the building, then the measure of damages is the difference between the value of the building as constructed and as such value would have been if constructed according to the plans and specifications.”

It will be noted that in the Totten case the court used the words “as constructed”. Appellant did not ask that this issue be submitted as set forth in the Totten case but in the place of the words "as constructed” he used the words “actually finished”. Carroll’s testimony was, in effect, that the house had never been actually finished and that the appellant informed him in February he was going to wash his hands of the whole deal. If the measure of damages as set forth in the Hutson case is dicta, we have, nevertheless, concluded that the appellant’s objection to special issue number 3 is without merit because if the issue had been submitted as suggested by appellant it would have assumed a disputed issue of fact, namely, that the house had actually been finished. 41-B Texas Jur., Trial, Civil Cases, Sec. 483, page 638, and cases there cited. Also, in view of the testimony of Busby Carroll that the defects in the house occurred soon after he moved in, we are not convinced that the appellant has shown from the record and the charge as a whole that the manner in which the court submitted special issue number 3 was reasonably calculated to cause and probably did cause the rendition of an improper verdict.

We have considered all the evidence and find that the verdict of the jury and the judgment of the court are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    I. G. (Cap) YATES, Appellant, v. Billie Yates JONES et vir, Appellees.
    No. 16402.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 1, 1963.
    Rehearing Denied March 1, 1963.

      E. B. O’Quinn, Marfa, for appellant.
    Ben Goodwin, Tyler, for appellees.
   MASSEY, Chief Justice.

Suit in trespass to try title to real estate was brought by Billie Yates Jones and her husband against her father, I. G. (Cap) Yates. Injunctive relief was sought in counts ancillary to the title issue. Judgment was entered for plaintiffs, decréeing title in Billie Yates Jones as against I. G. (Cap) Yates, who perfected an appeal therefrom and also from the injunction granted against him.

Judgment affirmed.

By conveyances from and under the admitted common source, appellee, Billie Yates Jones, established, without any dissent, title to the 3S40 acres of land in Jack and Wise Counties, which title was cast in issue under the pleadings. Stated another way: Mrs. Jones established a prima facie case for recovery, under a title emanating from the common source, and thus, it became incumbent upon the appellant to rebut the prima facie case so made by proving in himself title superior to the common source. 41A Tex.Jur., p. 676, “Trespass to Try Title”, § 141, “Defendant’s Burden”.

The title so proven was by a continuous chain of instruments. If there was any break in the “chain of title” such was not reflected by the instruments and evidence placed in the record by appellees. Appellant offered no evidence whatever. Therefore there was nothing which rebutted the prima facie case established in appellees’ behalf and they were entitled to the judgment decreeing title.

In his complaint of the judgment appellant says that a certain prior judgment entered against him in December, 1960, by the District Court of Jack County, purporting to decree title to the same premises in Billie Yates Jones, was wholly void.. Ergo, says he, it was reversible error to render judgment against the appellant in the instant case. Assuming arguendo that the judgment of December, 1960, was wholly void and ineffectual, yet appellees would be entitled to the same judgment obtained in the instant case on their independent proof •of “chain of title”. Indeed, appellees tried the instant case as though there had been no former trial. Thereafter they introduced the 1960 judgment for good measure. Their unchallenged evidence was complete without such judgment.

Although unnecessary to any disposition, we will state that the face of the record made in the trial court does not establish that the judgment of December, 1960, was void. Appellant’s pleadings raised the question of whether it should be set aside and avoided, but he did not attempt to discharge the burden of proof incumbent upon him to avoid it.

The judgment entered below ordered set aside and held for naught a certain trust- deed executed by appellant, as trustee for appellee Billie Yates Jones, to himself as grantee. The record thereof was also canceled and removed as a cloud on Mrs. Jones’ title. Appellant claims that judgment in these respects constitutes reversible error. Evidence in the statement of facts does not include the trust deed, but, in view of the state of the pleadings, evidence was not necessary. The pleadings established the necessary undisputed facts upon the existence and record of the trust deed. It is not to be doubted that it constituted a cloud on the title in Mrs. Jones. The trial court was entitled to order cancellation and removal although probably his action in such regard was not necessary in view of the decree vesting title in Mrs. Jones.

Finally, appellant complains because he was enjoined from further prosecuting certain designated suits pending on the docket of the court in Jack County, and from filing any further suits or proceedings, or from taking any action against appellees respecting the land and issues involved in the instant suit. Basis of complaint is founded in the “due process” clauses of the federal and state constitutions.

The evidence in the case is replete with the story of vexation and harassing activities of the appellant in respect to Mrs. Jones’ right to and use of the land, title to which was resolved in the judgment entered in Trespass to Try Title. We believe that it is not to be doubted that the trial court, under these circumstances, has clear power to enjoin purely vexatious litigation filed and prosecuted in an obvious effort to relitigate that which has become res ad judicata under its orders, judgments and decrees. Meissner v. Fuchs, 1955 (Tex.Civ.App., Galveston), 290 S.W.2d 941, writ dism.; Renfroe v. Johnson, 1944, 142 Tex. 251, 177 S.W.2d 600.

Judgment is affirmed.


author: GRIFFIN, Justice.

text:
    Richard A. FARNSWORTH, Petitioner, v. Otis MASSEY et al., Respondents.
    No. A-8907.
    Supreme Court of Texas.
    Jan. 9, 1963.
    On Rehearing Feb. 20, 1963.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Houston (Austin C. Wilson and Howard Wolf, Houston, of firm) for Massey and others.
    Bell & Singleton (Otto A. Yelton, Jr., of firm) Hill, Brown, Kronzer & Abraham, Pat F. Timmons, Houston, for Farns-worth.
   GRIFFIN, Justice.

Petitioner, as plaintiff, filed a suit in a District Court of Harris County, Texas, against Respondent Massey and others, as defendants, seeking a recovery for damages by virtue of a conspiracy on the part of defendants to defraud plaintiff of the value of certain corporate stocks. Plaintiff, in the alternative, sought the fair value of his corporate shares, under the provisions of Arts. 5.10-5.12 of the Business Corporation Act, Vernon’s Texas Civil Statutes, hereinafter referred to as the “Act.” After a trial before a jury, the trial court rendered judgment for plaintiff for the fair value ($312,000.00) of plaintiff’s stock in the “Old Companies,” as found by the jury. Although the jury had answered the special issues submitted to them on plaintiff’s fraud and conspiracy count in favor of plaintiff, and found $54,000.00 as damages, the trial court refused to render judgment in favor of plaintiff for such damages.

The defendants appealed to the Court of Civil Appeals. That court held that the trial court had no jurisdiction of the cause of action for fair value of plaintiff’s stock, because plaintiff had not secured the appointment of an appraiser [Art. 5.12 (C and D) of the Act] and that plaintiff was bound to accept the value ($151,529.27) of his interest in the “Old Companies” as set by these Companies. The Court of Civil Appeals also held that plaintiff was entitled to recover on his cause of action for fraud and conspiracy and rendered judgment for the $54,000.00 damages as found by the jury. This made a total recovery awarded plaintiff by the Court of Civil Appeals of $205,-529.27, plus interest. 353 S.W.2d 262. All parties have filed applications for writ of error. '

The Court of Civil Appeals has set ouF a statement of the facts, and we will not repeat them, except as may be necessary for an understanding of our opinion. /

Plaintiff, as petitioner here, complains of the holding of the Court of Civil Appeals that the trial court had no jurisdiction to determine the fair value of plaintiff’s shares of stock in “Old Companies” because plaintiff did not secure the appointment of an appraiser to fix this value. Plaintiff was the only dissenting shareholder.

From an examination of the pertinent provisions of the Act, we find in Paragraphs A and B there are certain preliminary things to be done, prior to the appointment by the court of the appraiser. All these preliminary steps had been taken by plaintiff, and he had filed his petition in the district court, as required by Paragraph B, Art. 5.12. The filing of the petition gave jurisdiction to the district court to proceed with the determination of the fair value of the plaintiff’s corporate interest.

Paragraph C, after providing for the appointment of the appraiser, sets out his powers and duties in determining the fair value of plaintiff’s shares, and ends: “The appraiser also shall have such power and authority as may be conferred on Masters in Chancery by the Rules of Civil Procedure or by the order of his appointment.”

Paragraph D provides for the filing by the appraiser of his report with the clerk of the court and for notice to be given to the parties in interest, and that exceptions are “to be heard before the court both upon the law and the facts.” The next proviso is: “The court shall by its judgment determine the fair value of the shares of the shareholders entitled to payment therefor and shall direct the payment of such value by the existing, surviving, or new corporation, together with interest thereon, to the date of such judgment, to the shareholders entitled thereto.”

From a reading of the statutes, it is clearly shown that the court in which the suit is filed retains jurisdiction of the case until final disposition, subject to appellate review.

Art. 5.12 in Paragraph A(l) provides: “ * * * Any shareholder failing to make demand within the ten-day period shall be bound by such corporate action” (authorizing the sale of the assets of the existing corporation and the terms of such sale).

Art. 5.12 B in the last sentence provides: “All shareholders thus notified and the corporation shall thereafter be bound by the final judgment of the court.”

Art. 5.12 D provides: “Unless the dissenting shareholder shall file such petition within the time herein limited, such shareholder and persons claiming under him shall be bound by the corporate action to which he seeks to dissent.” The petition referred to is the one described in Paragraph B, Art. 5.12.

While the Legislature was careful to set out only three instances where a dereliction on the part of the shareholder will result in his being bound by the corporate action, we find no such provision with regard to the appointment of an appraiser. The court (not the shareholder) is charged with the responsibility of appointing an appraiser.

From all the statutory provisions we hold that the appraiser called for is only an aid to the court in determining the fair value of the shares. There is no provision that the report of the appraiser shall be binding on the parties or the court. Objections and exceptions are provided for and these are to be determined by the court, not by the appraiser. The final determination of the fair value of the shares shall be by judgment of the court, not by the appraiser’s report. (Emphasis added).

The appointment of the appraiser is not jurisdictional, but only a preliminary procedural step for the help and assistance of the court in determining the fair value of the shares of plaintiff. Northwest Greyhound Lines, Inc. v. McCornack (Wash.1952) 251 P.2d 607(1).

It has been held that where an insurance policy provides for an examination of the premises or property claimed to be damaged before a suit may be brought, and the insured fails or refuses to comply with such provision, that such failure cannot be taken advantage of by a plea in bar, but must be reached by a plea in abatement. Humphrey v. National Fire Ins. Co. (1921, Comm. of Appeals) 231 S.W. 750; Phila. Underwriters’ Agency, etc. v. Driggers (1922) 111 Tex. 392, 238 S.W. 633.

Also, it has been held that a failure to file a plea in abatement before proceeding to trial constitutes a waiver thereof. Safeway Stores, Inc. v. Rutherford (1938) 130 Tex. 465, 111 S.W.2d 688; 1 Tex.Jur.2d 95-96, Abatement & Revival, Sec. 82, pp. 95, 96, idem, Sec. 3, pp. 19-20.

It is admitted that no plea in abatement was filed in this cause and that the parties proceeded to a trial on the merits. The question of fair value of plaintiff’s shares was tried to a jury, and the jury found such value as $312,000.00, the amount of the trial court’s judgment.

By failure to file a plea in abatement, the defendants waived the right tO' insist that an appraiser be appointed. Had such a plea been filed, as required by Rules of Civil Procedure, we are sure the trial court would have sustained it and appointed an appraiser and followed the procedure set out in Art. 5.12.

The Court of Civil Appeals erred in holding that the failure to have an appraiser appointed was jurisdictional.

The plaintiff brought a common law action for damages in the sum of $300,000.00 based upon the theory that defendants had, in effect, wrongfully converted his corporate stock in the “Old Companies.” He also sought special damages in the additional sum of $100,000.00 because of the alleged wrongful acts of the defendants. In the alternative, plaintiff pleaded for a recovery of the fair value of his stock to be determined by the procedure set forth in the Business Corporation Act.

While the plaintiff here contends that the jury’s finding in answer to Special Issue No. 41 whereby the fair value of plaintiff’s stock in the “Old Companies” was $312,000.00 may be properly referable to his common law theory of recovery, he likewise contends that such finding is properly sustainable as a finding of “fair value” under the Business Corporation Act, despite the failure of the Court to appoint an appraiser.

In our opinion, 'the jury’s finding in answer to Special Issue No. 41 clearly relates to the statutory method of ascertaining the value of a dissenting shareholder’s interest and is sustainable as such. Plaintiff is before this Court insisting that this finding be sustained. This brings us to a consideration of tire special damage item represented by the jury’s finding in answer to Special Issue No. 14 whereby the jury found damages in the sum of $54,000.00. In so far as special damages are concerned, it probably makes little difference whether the $312,000.00 item (Special Issue No. 41) be considered a common law recovery or a recovery in accordance with the provisions of the Business Corporation Act. However, at this stage in the litigation, we are not concerned with the question of whether or not a litigant may initially elect to proceed at common law or under the statute, but rather with the question of whether a recovery of “fair value” under the statutory procedure precludes one from recovering special damages. We think that in a proper case such damages may be recovered. One may easily conceive of a factual situation wherein a recovery of an amount equal to the “fair value” of a dissenting shareholder’s interest as of a certain date would not fully compensate him for the actual loss which he had sustained. An example of a case which would give rise to special damages over and above the “fair value” of the dissenting shareholder’s interest would be one in which it was shown that for some period of time the majority interest in a corporation had through fraud and unfair deals succeeded in depressing the value of the corporation’s shares of stock so that when their value was measured at a date immediately prior to the sale of the corporation’s assets such value would not approximately reflect the extent of the dissenting shareholder’s loss. In such a case special damages above the statutory “fair value” could be recovered. Other factual situations which would give rise to special damages over and above the “fair value” measure may be imagined. There seems to be nothing in the Business Corporation Act which evinces an intention by the Legislature to forbid the recovery of special damages. In fact, it appears that the Legislature, by adopting Article 5.14 of the Act, attempted to make it abundantly clear that special damages of the nature here discussed were not precluded by the Act when an award of the “fair value” of a 'dissenting shareholder’s stock would not fully compensate him for the loss sustained by him.

However, in the case before us, the plaintiff’s claim to special damages fails because of a lack of pleading and proof. Acts which are expressly or impliedly authorized by law cannot be made the basis of a claim for damages. Under the Business Corporation Act a majority interest of four-fifths of the outstanding shares of the corporation may dispose of the corporation’s assets, Article 5.10, subject to the rights of dissenting shareholders as set out in Articles 5.11 and 5.12. The statutory procedure was carried out in this case and it follows that the plaintiff has neither pleaded nor proved a basis for the recovery of special damages. Plaintiff’s complaints of fraud relate to and are based upon the actions of the majority stockholders (representing more than 80% of the outstanding stock) of the “Old Companies” in selling the assets to the “New Companies” and preventing plaintiff from obtaining a stock interest in the “New Companies” which would correspond to his interest in the “Old Companies.” However, as above pointed out, this action characterized by the plaintiff as a “freeze out” is one which the law permits, providing such action is-authorized by four-fifths of the outstanding capital stock of the corporation which js selling, its assets.

We accordingly hold that under the pleadings and proof, the recovery of -.$54,-000.00 as special damages cannot be sustained.

We reversed the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

ON REHEARING

In our original opinion we did not hold that a dissenting stockholder is deprived by the Business Corporation Act of his common law remedies and under proper facts c.Duld not originally proceed other than by the statutory “fair value” remedy.

Under the facts of this case, it was not necessary for us to decide this question, which was reserved for future decision in a proper case.


author: McDonald, judge. WOODLEY, Presiding Judge.

text:
    Charles William GUYTON, Appellant, v. The STATE of Texas, Appellee.
    No. 35182.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    Rehearing Denied Feb. 20, 1963.
    M. L. Miller and James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is pandering; the punishment, five years in the penitentiary.

The state’s evidence, adduced from testimony of B. F. Rodgers, reflects that he was a police officer for the city of Dallas; that he was working in plainclothes in the vicinity of the Greyhound Bus station in Dallas, with Officer J. R. Helm, when appellant pulled over, sounded his horn, and motioned with his head when Rodgers looked toward him; that Rodgers started over to the car but other cars to the rear of appellant’s car started sounding their horns and appellant told Rodgers that he would go around the street and come back; that appellant told Rodgers to wait for him and that appellant returned and parked and asked Rodgers what he was doing. Rodgers responded that he was waiting for a bus. Appellant then asked Rodgers if he would like to rent a car and when Rodgers stated that he had no use for a car, appellant pointed out that if he had a car he could find a girl. As a result of their conversation, a deal was made for appellant to drive Rodgers around town and find him a girl with whom to have sexual intercourse. Rodgers’ testimony reflects that upon appellant’s failure to locate a white girl Rodgers told appellant it did not matter to him whether it was a white or colored girl. Appellant then stated that he knew where there were plenty of them within ten blocks. The evidence reflects that appellant was wearing an Humble Service station uniform on the night in question and that he then drove to Hall and Thomas streets, where he stopped and asked a fellow if he had seen a tall, red-skinned girl; that he received a negative response and that he then stated: “* * * if you see her, tell her I’m looking for her.” Appellant then drove on and parked in front of the San Jose Hotel on Thomas street and said that he was going upstairs and that he would be back in a few minutes; that after about three or four minutes a colored girl came down the stairway to the car and said to Rodgers: “Are you for business ?,” and Rodgers answered affirmatively. She then asked if he had $10 and Rodgers said that he did but he was already with another fellow that had gone upstairs. The girl then asked: “Are you with the man in the Humble uniform?” Rodgers testified that the girl was Marjorie Riggs; that she was rather red-skinned; that when he indicated that he was with the man in the Humble uniform she said: “Well, he sent me down here.” Rodgers then related that he asked her to get in the car but she said she was going upstairs for a minute; that when she did so she met appellant on the first step and she conversed with him out of hearing of Rodgers. Appellant and Marjorie Riggs then came out together; appellant got in the car and said they would pick up the girl a couple of blocks away and they did so; a conversation about the money ensued, whereupon Rodgers reached in his pocket as if reaching for money but instead produced his police identification and arrested both appellant and Marjorie Riggs. The state established that the girl was a female person obtained by appellant for Rodgers for an act of illicit sexual intercourse for hire. Rodgers identified the appellant in court as the man who got the woman for him. Although appellant testified that he did not know Marjorie Riggs, Officer Rodgers testified on recall that she stated that this was about the third or fourth “trick” brought by appellant.

State’s witness, Officer James R. Helm, testified to substantially the same facts as did Officer Rodgers with reference to appellant driving up to the bus station and picking up Rodgers.

Appellant testified in his own behalf and related his employment at a Humble station and that he received disability payments resulting from a medical discharge from the service in World War II. He admitted meeting Officer Rodgers but denied any proposals on his part and stated that the entire transaction was Rodgers’ idea and that Rodgers instructed him where to drive and that Rodgers made the proposal to the girl.

Appellant contends that the indictment should have been quashed for the reason that it is defective in that it fails to set out the means of procuring the female. We observe that the indictment contains the allegation that appellant procured Marjorie Riggs to engage in prostitution, to wit, an act of illicit sexual intercourse, for hire, with B. F. Rodgers, a male person, in the city of Dallas.

We are not so much concerned with the form of the indictment as we are with the proof adduced by the state to substantiate it.

Appellant insists that the evidence is insufficient to sustain the conviction, it being his theory that a “panderer” must get part of the proceeds or earnings of the prostitute. While appellant’s theory might be tenable in some instances, we do not agree with him in this case, but we do agree that the evidence is insufficient to sustain the conviction for the offense of “pandering.” We have labored diligently to distinguish the offenses of “procuring,” Art. 525, P.C., and “pandering,” Art. 519, P.C. We observe that the offense of “procuring,” in simple language, means that whoever shall procure any female for the purpose of meeting and having unlawful sexual intercourse with any male person, etc., shall be, fined, etc. It is to be noted that the “procuring” statute does not mention the word “prostitution.” The “pandering” statute penalizes those offenders who use various means to procure women to engage in prostitution or to become or remain a prostitute. Wyatt v. State, 169 Tex.Cr.App. 499, 335 S.W.2d 386, 387.

Our construction of the above statutes is that the procurement of a female to be at a certain place for a single or isolated act of unlawful sexual intercourse constitutes the misdemeanor offense of procuring, punishable under Art. 525, Vernon’s Ann.p.C., while procurement of a female ■¾0) fake up the practice or profession of prostitution or to become or remain a common prostitute, without regard to where she is to ply her trade, constitutes the felony offense of pandering, under Art. 519, Vernon’s ’Ann.P.C.

It. is evident that the state failed to show that appellant procured a female to engage in .prostitution. The facts show that she was already, engaged in prostitution, was a prostitute, and- needed no one to urge her to enter the business or to remain a prostitute, . We do not think that the evidence is sjiffrcieht to sustain the jury’s verdict.

: .The jüdgmtent is reversed and the cause is remanded.

ON STATE’S MOTION FOR ' REHEARING

WOODLEY, Presiding Judge.

..The state questions our conclusion that the facts show the misdemeanor offense of •procuring rather than the felony offense of pandering, for .which he was tried and found guilty.'

To illustrate the correctness of our holding, we direct attention to the court’s charge herein defining the offense for which the appellant was on trial in the following words:

“I instruct you that the statutes of the State of Texas provide that whoever shall invite, solicit, procure, allure or use any means in alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, shall be punished by confinement in the penitentiary for any term of years not less than two.”

Except for the punishment, the court’s definition is in the language of Art. 525 P.C. which defines the misdemeanor offense of procuring and reads, in part:

“Whoever shall invite, solicit, procure, allure or use any means in alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, * ⅜ * shall be fined not less than fifty nor more than two hundred dollars and be confined in jail not less than one nor more than six months.”

We remain convinced that the evidence, though sufficient to show the misdemeanor offense of procuring, is not sufficient to sustain this conviction for the felony offense of pandering. Any other conclusion would require a holding that there is no longer a misdemeanor offense of procuring a female for unlawful sexual intercourse, and that such act once punishable under Art. 525 P.C. now constitutes pandering under Art. 519 V.A.P.C. as amended. We cannot reach such conclusion, nor can we find a more accurate construction of the two statutes than that stated in our original opinion herein.

The state’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Ex Parte Roy MOTEN
    No. 35349.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Ohio.

The executive warrant of the Acting Governer of Texas which appears regular on its face, the requisition and the accompanying and supporting documents, which are duly authenticated, were introduced in evidence. They made out a prima facie case that the accused is a fugitive from justice and subject to extradition.' .

The appellant did not testify or .raise any issue by the evidence introduced on the hearing. No brief has been filed in behalf of the appellant.

The evidence was sufficient to authorize the trial court to conclude as lie 'did and remand appellant for extradition/ Ex parte Kaufman, 168 Tex.Cr.R. 55, 323 S.W.2d 48.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    John McCRAY, Appellant, v. The STATE of Texas, Appellee.
    No. 35148.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.

      Otis Scruggs, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carle E. F. Dally and Frank Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder without malice, under Art. 802c Vernon’s Ann.P.C.; the punishment, 5 years.

The evidence shows that the body of an adult Latin American man was found near the place where appellant’s car was driven over the curb and landed against a telephone pole. The accident occurred about 2 o’clock A.M. and the body was found several hours later, some 13 feet from the curb line. The autopsy performed about noon revealed that the cause of death was a broken neck, fractured pelvis and broken back, and there were fractures of the legs. The injuries were described by the medical examiner as “pedestrian-auto type of injury caused by the bumper of an automobile.” The estimated time of death was fixed as 2 o’clock A.M.

No witness testified who had known the dead man during his lifetime. The indictment alleged the murder of A. F. Valenzuela. The state introduced in evidence a certificate of baptism certifying the baptism of Aquiler Fausto, child of José Simas and Rosa Valenzuela, born in Tecate, California on September 8, 1925.

The state also introduced in evidence the pathological diagnosis on the body found, which shows the name of the dead man as Aquilla Fausto Simas, alias Aquilar Fausto Valenzuela.

The death certificate signed by Dr. Jach-imezyk shows the name of Aquillas Fausto Simas; Father, Jose Luis Simas; Mother, Rosa Valenzuela, and shows the informant to be Oscar Simas, brother.

The witnesses who referred to the dead man as A. F. Valenzuela gave the funeral director as the source of their information as to his name. The death certificate signed by Dr. Jachimczyk also bears the signature of Mr. Morales, the funeral director.

The state offered testimony to the effect that, though it was the usual custom in Mexico for children to use the surname of the father, and that the baptismal name would be the father’s surname, “ * * * if they wished to add the mother’s last name to distinguish him from someone else, they will do so. It doesn’t have to be.”

We express grave doubt as to the sufficiency of the evidence to show that the deceased used or was known by the name alleged in the indictment.

As a part of the state’s evidence to show that it was the automobile the appellant was driving that struck the person whose dead body was found some hours after the accident, Floyd McDonald, chemist and toxicologist for the City of Houston, was permitted to testify from the records of the crime laboratory that the red and white paint on the clothing of the deceased was identical to the red and white paint from the ’57 Ford. The evidence shows that a chemist examined appellant’s car and took hair from the bumper, but we find no testimony showing that the sample of paint compared with the paint on the clothing of the deceased came from the ’57 Ford which appellant was driving. It is apparent that this evidence could not be supplied by the records of the laboratory where the paint samples were compared.

The admission of this part of the records of the laboratory was prejudicial and calls' for reversal.

There is also presented the interesting question of whether Mr. McDonald should have been permitted to testify as to the opinion or conclusion reached by his assistant, a qualified chemist, that hairs he took from the bumper of the Ford automobile had the same characteristics and probably came from the same person as hair he had taken from the body of the deceased.

As we understand the record the hairs were in Mr. McDonald’s possession at the time of the trial, but he had made no comparison of them. While he testified that the tests were performed under his supervision, he was unable to say that he was present or had any part therein. :

Leonard v. State, 161 Tex.Cr.R. 470, 278 S.W.2d 313; Trujillo v. State, 166 Tex.Cr.R. 405, 313 S.W.2d 871; and Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499, are cited by the state. Had Mr. McDonald expressed his opinion as an expert, on the characteristics of the hairs, it would seem to have been admissible under these authorities, though his assistant had a part in conducting the test.

We would not extend the rule stated in the cited cases so as to allow proof by the records of opinions or conclusions of an assistant chemist, who is not called as a witness, based upon his comparison of objects or materials especially where, as here, such objects or materials are available for comparison by the chemist in charge of the laboratory who is called to give such testimony from the records.

Under the cases cited, the court did not err in permitting Mr. McDonald to testify from the records of the laboratory as to the results of the analysis of the sample of appellant’s blood, and to testify as to the effect of such an amount of alcohol in the blood. The distinction lies in the fact that the opinion as to the effect of the alcohol was that of the witness McDonald, whereas the opinion that the hairs probably came from the same person was the opinion of a witness who was not available for cross-examination.

The testimony as to the paint sample differs from both the hair and the blood in that there was no testimony showing that the sample of paint compared in the laboratory was taken from the automobile of appellant,, whereas the hairs and the blood were properly traced.

Dr. Jachimczyk having testified, the state also offered in evidence his written Pathological Diagnoses on the body. In addition to showing the name used in the indictment as an alias, the document admitted over appellant’s objection contained the statement that the decedent came to his death as a result of injuries sustained “when struck by motor vehicle. Hit and run accident.”

■We are aw:are of no rule of evidence under which the document would be admissible in evidence.

The judgment is reversed and the cause remanded.