author: DAVIS, Commissioner. MONTGOMERY, Judge

text:
    Simon LEBOW et al., Appellants, v. H. B. CAMERON et al., Appellees. Ruby E. ORVIS et al., Appellants, v. J. P. JOYCE, Administrator, et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    As Modified on Denial of Rehearing Nov. 12, 1965.

      William G. Craig, Sandidge, Holbrook, Craig & Hager, Owensboro, Robert Matthews, Matthews & Matthews, Shelbyville, for appellants.
    Thomas E. Sandidge, Sandidge & San-didge, Owensboro, for appellees.
   DAVIS, Commissioner.

These consolidated appeals present a third episode in the litigation which has been treated in two prior opinions of this court. See, Cameron v. Lebow, Ky., 366 S.W.2d 164 (1962), and Cameron v. Lebow, Ky., 338 S.W.2d 399 (1960). The background facts are stated in the two opinions just cited, but we briefly recapitulate them here for convenient reference.

An oil and gas lease covering 160 acres in Daviess County was executed in 1938. In 1939 the appellees (to whom we shall refer as Cameron) became lessees as to 55 acres of the original leasehold. That same year Cameron drilled a “dry hole” on the 55 acres, but took no further steps looking toward exploitation of the oil and gas. Meanwhile, producing wells had been brought in by others on the remaining 105 acres of the original 160 acres of the lease; the only significance of that fact is that the production on the 105 acres absolved Cameron from pursuing production on the 55 acres until notice and demand for production should be given.

In 1956 the appellants (to whom we shall refer as Lebow) took a lease (designated as a “top” lease because of its being subsequent to and on “top” of the Cameron lease) on the same 55 acres. Lebow caused title examination to be made by legal counsel, and was advised by the attorney of the existence of the Cameron lease. However, the title examiner advised that in his opinion the Cameron lease had been “completely forfeited.” In another reference, the title lawyer referred to the Cameron lease as having been “abandoned.” The title attorney obtained an affidavit and a lease from E. W. Richmond, who had been an owner of the lessor interest. Richmond’s affidavit recited that no production activity had been performed by Cameron since 1939; the lease taken from Richmond was precautionary and in the nature of a quitclaim.

Lebow drilled a dry hole on the 55 acres between the 13th and 17th of September, 1956. On September 28, 1956, Cameron first learned of Lebow’s activities, and this knowledge was acquired from H. W. (Warren) Hartsough under these circumstances, as related by Cameron:

“Q. 47. And how did you learn that at that time?
A. 47. I learned it from Warren Hartsal. (sic)
Q. 48. Under what circumstances ?
A. 48. Warren came to take me to the airport.
My wife was dying.
Q. 49. Where was your wife?
A. 49. She was in Cleveland.
Q. 50. Had your wife been sick for sometime ?
A. 50. Yes, she had, pretty near two years and I had been paying attention to her and no attention to things down here like I should have, I presume, but Mr. Richmond never told me or notified me or anything that there was anything going on over there. I knew Warren was drilling over in that section, but I thought he was clear over to the other side of the woods. I didn’t have any idea that he was as close as that, and he said to me, I was packing and wasn’t quite ready when he came to take me to the airport. I want to tell you that he was very nice to me and he said to me, ‘we are drilling a well on the Davis.’
Q. 51. Was that while you were on the way to the airport or before you left home?
A. 51. That was right in my house and I said to him, ‘the Davis,’ and he said, ‘yes,’ and I said, ‘that is our lease, Warren,’ and he said, ‘the lawyers down town say it is not,’ and that is all the conversation there was about it at that time.
******
Q. 55. What did you say to Warren when he told you that they were drilling a well on the Davis?
A. 55. Didn’t say a word except I told him that it was our lease. Warren has been a very nice friend of mine, I will say that.”

Cameron consulted with attorneys with a view to suing Lebow, and was so discouraged as to the prospect of success he “had decided to abandon it,” but ultimately did file the suit on August 19, 1957. The present appeal and the two former appeals heretofore mentioned arose from that suit.

Meanwhile, on October 15, 1956, Lebow began drilling a second well; it was an oil producer, and was completed and put on pump on November 2, 1956. Shortly after the suit was filed Lebow drilled and completed a third well, which also was commercially productive of oil. This well was completed between August 25 and 30, 1957, (just a few days after the suit was filed on August 19, 1957).

The circuit court dismissed Cameron’s complaint, but this court reversed that judgment and remanded the cause to the circuit court for a trial on the merits to determine whether the Cameron lease had been abandoned. Cameron v. Lebow, Ky., 338 S.W.2d 399. When the matter was tried on its merits the circuit court found that the Cameron lease had been abandoned and that Lebow had acquired the “top” lease as bona fide purchasers. We reversed in Cameron v. Lebow, Ky., 366 S.W.2d 164, holding that the Cameron lease had not been abandoned.

When the case came before the circuit court following the opinion in 366 S.W.2d 164, the issues were limited to (1) accounting for the proceeds of the oil taken from the property by Lebow, and (2) whether Lebow should have credit for actual expenses incident to the oil production, as “innocent trespassers.”

No evidence was heard by the circuit court on the questions. The gross receipts for oil were agreed upon; Lebow filed claim for expenses, to which Cameron filed exceptions, but the circuit court concluded that it was bound, as the “law of the case,” to conclude that Lebow was not an “innocent trespasser” and consequently did not reach the question as to the propriety of the various expense items claimed by Lebow.

Thereupon the trial court entered judgment against Lebow (actually a judgment was entered against numerous holders of various shares in Lebow, some of which were below the jurisdictional amount for an appeal as a matter of right, hence the motion for appeal as to some). The judgment provided for interest at 6% from the date of entry of judgment; Cameron challenges this by cross-appeal, asserting interest should be awarded from the respective dates on which the oil was taken.

We have concluded that the trial court erred in holding that Lebow was a wilful trespasser. We also hold that the trial court correctly fixed the date from beginning interest computation as the date of judgment. We shall outline our reasons for these views.

First, it must be understood that Cameron v. Lebow, Ky., 366 S.W.2d 164, did not adjudicate the question whether Lebow was a wilful or innocent trespasser. That question was not in issue, in view of the nature of the judgment appealed from, until after the question of abandonment had been finally adjudicated. The decision did hold that Cameron’s lease was legally effective and had not been abandoned. Thus, the trial court misconceived the opinion and incorrectly deemed that he was bound to conclude as “fact” that Lebow was a wilful trespasser. In view of that, we do not accord to the trial court’s findings the usual weight prescribed by CR 52.01.

The litigants agree that our law is well settled as to the definitive distinction between a wilful and innocent trespasser. A wilful trespasser knows he is wrong; an innocent trespasser believes he is right. Rudy v. Ellis, 314 Ky. 524, 236 S.W.2d 466, 468. Moreover, the litigants recognize that innocent trespassers are allowed credit for proper expenditures in extracting minerals from the lands of another, even though they may not have any of the profits. Rudy v. Ellis, 314 Ky. 524, 236 S.W.2d 466, 469.

Indeed, the litigants rely upon substantially the same authorities, but draw opposite conclusions from them as they are applied to the facts of the case at bar. The cases cited, in addition to the Rudy case, supra, are: Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037; Hughett v. Caldwell County, 313 Ky. 85, 230 S.W.2d 92, 21 A.L.R.2d 373; Strunks Lane & Jellico Mountain Coal & Coke Co. v. Anderson, 297 Ky. 578, 180 S.W.2d 385; Loeb v. Conley, 160 Ky. 91, 169 S.W. 575. Other authorities are presented as touching upon collateral, matters, but the principles ruling this coñtroversy are enunciated in the Kentucky cases just listed.

It would unduly extend this opinion to undertake a detailed analysis of each of these authorities, and it is not necessary. Perhaps the best single treatment of the subject is in Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, wherein it is recognized that the burden is always upon the offender to establish his status of “innocence.” The intent of the trespasser is a key factor, but that is a subjective matter, generally, and the mere proclamation of an innocent intent will not suffice. The conditions and behavior are usually such as will enable the court to determine whether the trespass was wilful, or done “under a bona fide mistake, as where the circumstances were calculated to induce or justify the reasonably prudent man, acting with a proper sense of the rights of others, to go in and continue along the way.” Some of the factors to be weighed are: “There should be at least reasonable doubt of the other party’s exclusive or dominant right. The trespasser acted upon the advice of reputable counsel, to whom all the facts had been fairly submitted, upon questions of legal right concerning which a layman could hardly have knowledge, such as a disputed title, even though that advice proves bad.”

Using these guidelines, we look to the “conditions and behavior” revealed in the record at hand. Lebow did not ruthlessly or recklessly move in on Cameron’s rights. Lebow engaged counsel to examine the title, and learned of Cameron’s color of title; the counsel informed Lebow that Cameron’s claim was not “superior”; counsel directed certain curative steps, which were taken. Cameron learned from Lebow (through Hartsough) that Lebow was on the leasehold, and though Cameron then expressed the view that Cameron’s lease remained valid, there was certainly no definitive action then by Cameron. In fact, nearly a year elapsed before Cameron filed this suit, during which time Lebow had drilled the second well (the first producing well). Cameron’s own conviction of the justness of his claim suffered such misgivings as to lead him to decide to abandon it; the circuit court first ruled that Cameron’s claim was invalid; this court reversed that' judgment, but not by passing on the merits of the respective claims. When the merits were submitted to the circuit court that tribunal ruled that Lebow’s claim prevailed over Cameron’s. This court again reversed, by split decision of four to three. In face of all this, we think it is beyond question that Lebow acted “under a bona fide mistake * * * calculated to induce or justify the reasonably prudent man, acting with a proper sense of the rights of others, to go in and continue along the way.” We think it may not be challenged that there was a “reasonable doubt” as to the validity of Cameron’s claim, in face of the court decisions in this very lawsuit. We conclude, therefore, that Lebow was an innocent trespasser and should be required to account only for the net profit derived from the oil, rather than the gross profit.

The trial court has not adjudicated the propriety of the “expense” items asserted by Lebow; the record before us is inadequate to enable a decision of the factual and legal issues presented by the parties respecting the expense account. Thus it is necessary to remand the case for adjudication on the accounting.

Since we reverse the money judgments, the question as to the proper date for starting interest computation is no longer involved. However, we call attention to the identical situation as it was presented in Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, 1046. There this court approved the generally accepted premise that interest does not run on an unliquidated claim. Since there was no way to know (as there is yet no way to accurately know) what the ultimate judgments will equal, we are of the view that interest from the date of judgment will be proper.

The judgments are reversed on the original appeals in the consolidated cases; the judgment on the cross-appeal, for costs purposes, is treated as if affirmed on the cross-appeal.

MONTGOMERY and STEWART, JJ., dissenting.

MONTGOMERY, Judge

(dissenting).

In the second appeal in this litigation, Cameron v. Lebow, Ky., 366 S.W.2d 164, the following quotation therefrom presented the question for review:

“In the present appeal the trial court had found that the lessees, Cameron, et al., appellants and plaintiffs below, had abandoned their 1939 lease, and that Lebow, et al., appellees and defendants below, holders of a later (1956) lease on the same property, had acquired their lease as bona fide purchasers. It is the appellants’ contention that the trial court’s finding of facts and conclusions of law are clearly erroneous.”

In upholding the contentions of the appellants in that case, appellees here, the Court held that “ * * * the appellants’ lease is still good and that the evidence establishes that they did not abandon it.” The Court further condemned the claimed good faith of the appellants here in the following language:

“While it is true that the appellees had the title to the lease examined and Mr. Richmond was prevailed upon to give the top or later lease to the appel-lees because he was assured that the appellants had abandoned their lease in legal effect, the stark facts still were there which would have caused the appellees to alter their course had they not wanted to do otherwise. First, Mr. Richmond told appellees’ counsel of the appellants’ lease, and, second, the lease was in the chain of title. With the ubiquitous Mr. H. B. Cameron always available, it would have been quite simple for the appellees or their counsel to ascertain whether the appellants still claimed an interest in the property. Instead, it seems to us, they studiously avoided doing so, the type of conduct condemned in Walter v. Ashland Oil & Refining Company (1945), 300 Ky. 43, 197 S.W.2d 425.”

On the return of the case the trial court, with no further evidence presented, tried the case on the record and held that appellants were not innocent trespassers under authority of Loeb v. Conley, 160 Ky. 91, 169 S.W. 575, and further held that under the law of the case this Court had so determined.

I agree with the trial court and consequently disagree with the majority. Under the “law of the case” rule, parties may not re-litigate on a subsequent appeal matters affecting the subject of the litigation which could have been introduced in support of their contentions on a former appeal. Hutchings v. Louisville Trust Co., Ky., 276 S.W.2d 461. From the quotations taken from the opinion on the former appeal, the good faith of appellants was certainly considered by the trial court and this Court. In a similar case the Court held that where a contention was not made, if it could or should have been made on appeal, the doctrine of res judicata prevented re-litigation of the same contention in a subsequent appeal. E. F. Prichard Co. v. Heidelberg Brewing Co., 314 Ky. 100, 234 S.W.2d 486.

In my opinion for two reasons it is no answer to say that this Court did not decide the good faith issue: First, I think it did, and second, under the case last cited it was inherent in the appeal and, therefore, it could or should have been decided.

Further, I cannot agree with the concept of “innocent trespasser” or “bona fide purchaser” stated in the majority opinion. The early case of Loeb v. Conley, 160 Ky. 91, 169 S.W. 575, dealt with this problem fully. Cases covering analogous situations of one who improves the lands of another were considered. The rule there evolved is in substance that there can be no recovery for improvements made if they are made with actual notice of an adverse superior claim, and not in good faith, especially after the adverse claim had been asserted in a suit.

The rule was stated in Loeb v. Conley, thus:

“Whether a person acts in good faith, which involves an honest belief in the correctness of his position, depends on the circumstances surrounding the transaction. The mere personal belief of the person affected that he acted in good faith and honestly believed that he was right in the position assumed is not conclusive of the question, and will not of itself entitle him to the advantage of a person occupying a position of good faith. The court, in determining this question, will look into all the facts and circumstances surrounding the party, and decide from them whether he was acting in good faith and under an honest conviction that he was right in his assumption.”

In Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, Loeb v. Conley was approved, and it was further held that “The burden is always upon the offender to establish his status as an innocent or mistaken invader of another’s property.”

From the quotations in both cases the concept of an innocent trespasser is more that of the “innocent or mistaken” who inadvertently trespasses than it is that of good faith. In the instant case what appellants did was not innocently, mistakenly, or inadvertently done. Their conduct was deliberate, considered, and done without seeking to learn by inquiry the true facts from appellees. Under the guide so stated, I feel that appellants, as found by the trial court and as indicated in our former opinion, were not innocent trespassers.

For these reasons I respectfully dissent.

STEWART, J., concurs.


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    A. H. TARVER et al., Petitioners, v. Arline S. TARVER, Respondent.
    No. A-10224.
    Supreme Court of Texas.
    Oct. 6, 1965.
    Rehearing Denied Nov. 10, 1965.

      Smead & Harbour, Longview, for A. H. Tarver.
    L. F. Burke, Longview, R. Dean Moor-head, Austin, for Jack H. Tarver and others.
    Kenley, Ritter & Boyland, Jack N. Price, with above firm, Longview, Graves, Dough-erty, Gee & Hearon, Austin, for respondent.
   CALVERT, Chief Justice.

Arline S. Tarver sued her former husband, A. H. Tarver, for partition of their community estate acquired during nearly forty years of marriage and for an accounting from the date of their divorce on May 19, 1960. The fair market value of all property in the possession of A. H. Tarver and Arline Tarver on that date was $340,545.58. Two children of a former marriage of A. H. Tarver and two children of a deceased son of that marriage, the only heirs at law of the first wife who died intestate, intervened in the case. The in-tervenors sought, primarily, to recover one-half of the property in the possession of A. H. and Arline Tarver on the theory that the one-half was held by Tarver as trustee for them as heirs of his first wife.

The case was tried to a jury. In response to the only special issue submitted, the jury found that 70% of the property was community of the second marriage. All parties filed motions for judgment notwithstanding the verdict. The trial judge set aside the jury verdict as having no support in the evidence and rendered judgment as follows: (1) Two and one-fourth acres of land in Hardin County, Texas, acquired by A. H. Tarver before his first marriage and having a value of $1,200.00, was found to be his separate property and title thereto was awarded to him. (2) Certain oil royalty and other real and personal property, acquired during the first marriage and having a value of $19,850.00, was found to be community property of that marriage and was awarded one-half to A. H. Tarver and one-half to intervenors. (3) Certain oil royalty, stocks and bonds, real and personal property and cash, acquired during the second marriage and having a value of $308,212.-99, was found to be community property of that marriage and was awarded one-half to Arline Tarver, one-fourth to A. H. Tarver and one-fourth to intervenors. (4) Adjustments were ordered to be made in cash for properties not susceptible to partition in kind. (5) A. H. Tarver was ordered to pay to Arline Tarver $20,579.04 found by the court to be one-half of the net income from their community properties from the date of their divorce on May 19, 1960, to the date of the judgment on May 31, 1963, less certain payments theretofore made. (6) Arline Tarver was ordered to account to intervenors for one-half of the value of a diamond ring found by the court to be community property of the first marriage but to have been a gift from A. H. Tarver to Arline. (7) All obligations of the judgment were directed to bear interest at the rate of 6% from the date of the judgment until discharged. (8) All costs were assessed one-half to Arline Tarver, one-fourth to A. H. Tarver and one-fourth to intervenors. Findings of fact in support of the judgment are set out in the opinion of the Court of Civil Appeals and need not be repeated here.

A. H. Tarver and intervenors perfected a general appeal from the trial court’s judgment. Arline Tarver appealed from the judgment only in so far as it (1) taxed one-half of the costs against her, (2) required her to account for one-half of the value of the diamond ring, and (3) denied her a recovery of interest on her one-half of the income from the community of the second marriage after the date of the divorce and before judgment. The Court of Civil Appeals affirmed the trial court’s judgment. 378 S.W.2d 381. We affirm.

Arline Tarver did not file an application for writ of error. She seeks by cross-assignments in her answer to the applications of A. H. Tarver and intervenors to challenge those parts of the trial court’s judgment from which she appealed to the Court of Civil Appeals. Inasmuch as the Court of Civil Appeals denied her the relief she sought, she has lost her right to complain of these matters in this Court because of her failure to apply for writ of error. Sears, Roebuck & Company v. Robinson, 154 Tex. 336, 280 S.W.2d 238 (1955).

While A. H. Tarver and intervenors have prosecuted separate appeals, there is no antagonism between them and neither seeks relief from those parts of the trial court’s judgment in favor of the other. They join in a common effort to overturn the judgments of the courts below only in so far as they favor Arline Tarver. They complain primarily of the trial court’s conclusion, approved by the Court of Civil Appeals, that all property acquired during the marriage of A. H. and Arline Tarver was community property of that marriage and of the finding of fact on which the conclusion is based. The finding of fact is as follows: “Intervenors failed to trace any fund, income or assets of the first community estate into any of the property acquired during the second marriage and held as of May 19, 1960.” They assert that the law does not impose on them a burden of tracing the first community funds, income or assets into the property on hand on May 19, 1960, in order to establish their one-half interest therein; that they made all proof required by law to entitle them to recover one-half of the properties; and that they should have been awarded one-half of such properties and the other one-half should have been divided equally between A. H. Tarver and Arline Tarver. The paramount question in this case, therefore, is whether intervenors had the burden of tracing. If the burden was on intervenors to trace funds, income or assets of the first community estate into the properties on hand which were acquired during the second marriage, and if they failed to discharge the burden, the judgments of the courts below should be affirmed. We hold that they did have the burden of tracing and that they failed to discharge it. The problem and our holding will be better understood if put in proper factual context.

A. H. Tarver and Minnie Ora Peeler were married in 1903. Minnie died November 30, 1918, intestate, leaving three children surviving her: Edward A. Tarver, thirteen years of age, Kathleen Tarver, now Mrs. Kathleen Pfannkuche, ten years of age, and Jack H. Tarver, two years of age. Edward A. Tarver died in 1953, leaving two children, Kathleen Tarver and Edward A. Tar-ver, Jr., surviving him. The community estate of A. H. and Minnie Tarver at the time of her death consisted of cash, accounts and notes receivable, stocks and bonds, interests in partnerships and joint ventures, oil royalty and real and personal property valued at $348,785.62. The estate had a net worth of $335,942.84. No administration was had on the estate of Minnie Tarver and no guardian of the estates of the children was appointed. A. H. Tarver simply continued to control and deal with the property as though it were his own, recognizing, however, that one-half belonged to his children.

A. H. Tarver and Arline Self were married July 18,1921. The marriage was terminated by divorce on May 19, I960-. At the time of the marriage, the community property of the first marriage still in the possession of A. H. Tarver had a fair market value of $282,650.41, and the community estate a net worth of $276,670.41. There was a continuing diminution in the value of assets in the possession or control of Tarver until 1931, at which time all properties on hand had a value of $134,174.49 and the combined estates a net worth of $48,688.70. From 1931 to 1960 there was a gradual increase in both book value of assets on hand and net worth of the combined estates. On the date of the divorce, the assets of the combined estates had a book value of $236,473.87 and, on that basis, the estates had a net worth of $205,887.87. When converted to fair market value, the assets of the combined estates had a value of $340,454.58 and the estates a net worth of $309,959.58. Arline Tarver was awarded a one-half interest in all property on hand on the date of the divorce except that which was identified as having been acquired before her marriage.

Tarver never made an accounting to or settlement with the children of his first wife and none was demanded by them until they intervened in this suit. The youngest of the children reached his majority in 1938. All of the children consented to and acquiesced in their father’s use of their interests in the properties of the first community for more than twenty-five years after reaching their majority and they knew that assets of the first community would be, and actually were, sold, depleted, depreciated and disposed of during the second marriage and that the proceeds were mixed and mingled with income of Tarver from all sources. Arline Tarver knew as early as 1924 that Tarver had not settled with the children of the first marriage, but she had no control over or active voice in the management of the business affairs of her marriage. From and after 1922, Tarver maintained one bank account in Shreveport, Louisiana, through which was channeled all income from all sources and from which virtually all disbursements for expenses and purchases were made over a period of some thirty-eight years. As long as they remained a part of the family group, the three children of the first marriage and two children of the second marriage were supported and educated, four to college degrees, with funds from the common bank account.

An evaluation of the legal rights of the parties must begin with that part of Article 4619, Sec. 1, Vernon’s Texas Civil Statutes, which provides: “ * * * all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved. * * * ” The plain wording of the statute creates a rebuttable presumption that all property possessed by a husband and wife when their marriage is dissolved is their community property and imposes the burden upon one asserting otherwise to prove the contrary by satisfactory evidence. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947); Chapman v. Allen, 15 Tex. 278, 283 (1855).

The general rule is that to discharge the burden imposed by the statute, a spouse, or one claiming through a spouse, must trace and clearly identify property claimed as separate property, Schmeltz v. Garey, 49 Tex. 49, 61 (1878); Chapman v. Allen, 15 Tex. 278, 283 (1855); Lindemood v. Evans, Tex.Civ.App., 166 S.W.2d 774 (1942), writ refused; and that when the evidence shows that separate and community property have been so commingled as to defy resegregation and identification, the burden is not discharged and the statutory presumption that the entire mass is community controls its disposition. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 907 (1955); Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494 (1932), writ refused. This general rule has been given controlling effect in at least two cases in which parties claiming through a deceased spouse of a first marriage sought to establish an interest in property acquired and commingled with theirs by the surviving spouse during a second marriage. See Cook v. Cook, Tex.Civ.App., 331 S.W.2d 77 (1960), no writ history; Mason v. Crump, Tex.Civ.App., 254 S.W.2d 831 (1953), writ refused, no reversible error. But it does not appear that the question presented here was raised and decided in either of the last cited cases.

Petitioners insist that the general rule referred to is not applicable in cases of this kind; that the rights of the parties are controlled by the law of trusts. They correctly assert that when Minnie Tarver died the children of the first marriage and their father became the owners of the community property of the marriage in cotenancy; and they contend that when A. H. Tarver sold the common properties he became, in law, a constructive trustee of the proceeds and of any property acquired therewith to the extent of his children’s proportionate interest in the properties sold. They do not question the soundness of the proposition that ordinarily children in this situation have the burden of tracing the proceeds of their property into the particular property upon which they seek to impose the trust. See Bogert, Trusts and Trustees, 2nd Ed., § 921. To relieve in-tervenors of this burden, petitioners call our attention to the general rule that a trustee who wrongfully commingles trust funds and assets with his private funds and assets has the burden of tracing his private funds and assets and of separating them from the commingled mass, and that if he is unable or fails to do so the entire mass will be regarded as trust property. See Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493 (1943); Andrews v. Brown, Tex.Com.App., 10 S.W.2d 707, 709 (1928); Howard v. Howard, Tex.Civ.App., 48 S.W.2d 489 (1931), writ refused. They do not, however, rely on this general rule to establish the right of intervenors to a one-half interest in the property in the possession of A. H. and Arline Tarver at the time of their divorce, evidently because the rule runs head-on into the presumption created by Article 4619. Instead, they argue that they discharged their burden of tracing and established intervenors right, as a matter of law, to one-half of all property on hand at the time of the divorce, not clearly identified as belonging to the second community, when they proved (1) the amount, character and value of the first community estate at the time of their mother’s death; (2.) that Tarver used the entire estate in his business, selling the property and investing the proceeds as his own and mixing and mingling their interest with his; (3) that he acquired no property from any other source and had no other income; and (4) the amount, character and value of the property on hand at the time of the divorce. They cite Spencer v. Pettit, Tex.Civ.App., 17 S.W.2d 1102, 1106 (1929), affirmed, Spencer v. Pettit, Tex.Com.App., 34 S.W.2d 798 (1931), somewhat analogous on the facts, as expressly announcing the rule for which they contend. As further support for their position, they cite Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935) and Boettcher v. Means, Tex.Civ.App., 201 S.W.2d 255 (1947), no writ history.

Careful analysis of the four opinions in Spencer v. Pettit reflects that the case is not authority for the conclusion petitioners have drawn from it. In that case children of a first marriage who inherited a one-half interest in community property of the marriage when their mother died, sought to impose a constructive trust upon property sold by their father to third persons who had notice of the children’s claim. There, as here, the father remarried soon after the first wife’s death; and there, as here, the father continued to manage the property of the first community as though it were his own, using and investing and reinvesting the income and proceeds from sales, recognizing, however, his children’s interest in properties on hand. Also there, as here, the property upon which the court was asked to impose the trust was acquired by the father during his second marriage. On the first appeal, the Commission of Appeals commented that when the father disposed of properties belonging to the first community estate, the children had a choice of remedies in proceeding against the father for the value of the properties disposed of, with interest, or “for the recovery of other properties into which they could trace their own property or its proceeds.” The Court continued (2 S.W.2d 424):

“In either case the burden would be upon the children to allege and prove the facts entitling them to recover, which in the latter case would impose upon them the duty of tracing their funds or property 'into the acquisition of the specific property sought to he recovered.”

The Court noted that the property in controversy was acquired while the father was married to his second wife, and said (2 S.W.2d 425):

“Her property rights as a member of the second community could extend only to acquisitions by herself or her husband during that marriage. If for reasons of law or equity the husband’s purchases were in trust for his children by the former marriage, then he never acquired any separate property interest whatever, for which reason, of course, the wife as a member of the community never acquired any. The rights of the children and the duty and liability of the father in such a transaction would be precisely the same whether he had remarried or not.”

The case was remanded to the trial court for retrial. On the second trial a jury found, as one had done on the first trial, that the property in controversy had been acquired by the father by the use and investment of proceeds of property of the first marriage or the increase of such property. It was on appeal from the judgment in the second trial that the Court of Civil Appeals defined, as above set forth, the proof required of the children to discharge their burden of tracing. 17 S.W.2d 1106. This Court granted writ of error and the Commission of Appeals wrote in the case once again. 34 S.W.2d 798. Particular notice was taken of a complaint that the Court of Civil Appeals had held that the children “did not have to trace their property into the fund with which the land was purchased.” The Commission commented that it did not understand that the Court of Civil Appeals had so held, but stated that if it had done so the holding was immaterial inasmuch as the evidence adduced was legally sufficient to support the jury’s finding.

From the foregoing analysis of three of the four opinions in Spencer v. Pettit, it is obvious that it was not held that the children of the first marriage established their right to an interest in the property in controversy as a matter of law. Moreover, the statements in the first opinion of the Commission of Appeals respecting the rights of the second wife in property acquired during the second marriage were expressly related to a situation in which the husband’s purchases “were in trust for his children by the former marriage,” and presupposed discharge by the children of the first marriage of their burden of tracing. The most that can be said for Spencer v. Pettit is that it recognizes that the burden of tracing imposed on children- of a first marriage in cases of this type may be discharged by circumstantial evidence when it is legally sufficient and is strong enough to convince the trial judge or a jury of the existence of the ultimate fact to be proved. See Bogert, Trusts and Trustees, 2nd Ed., § 923, p. 324.

In this case intervenors did not discharge their burden of tracing to the satisfaction of the trial judge by either direct or circumstantial evidence. The finding of the trial judge was that intervenors had failed to trace any fund, assets or income of the first community estate into the properties acquired during the second marriage and on hand at the time the marriage was dissolved. He could have made no other finding on the record before us. This brings us to a consideration of the Magrill and Free leasehold interests, the most valuable and highest income producing property on hand at the time of the divorce and, as well, throughout the last twenty-eight years of the second marriage. Petitioners contend that they discharged their burden of proving that these interests were a part of the first community estate although acquired during the second marriage.

Both leasehold interests were acquired by Tarver in substantially the same manner in 1931. For many years he had been engaged in business as a drilling contractor and an oil producer. During his first marriage he acquired drilling rigs and all necessary equipment for drilling for and producing oil. His custom was to take an interest in a lease in return for drilling a well and then to sell a part of his interest for enough money to pay all of his out of pocket costs and provide him with a profit. He acquired the Magrill and Free leasehold interests in this manner. In each instance he negotiated an agreement with the owner of the lease under the terms of which he drilled one well thereon in consideration for the conveyance to him of a one-half interest in the leasehold estate. In each instance he sold a fractional interest in his one-half interest for enough cash to pay all of his drilling expense and provide some surplus. In neither instance did he expend first community funds in the drilling operation. The fractional interests he sold in 1931 were repurchased in 1959. There were two producing wells on the Magrill lease and four producing wells on the Free lease at the time of the divorce.

Petitioners’ contention that the Magrill and Free leasehold interests are a part of the first community estate is based entirely on the fact that the rigs and equipment used in drilling the first wells on the leases were owned by that estate. The contention is foreclosed against petitioners by our decision in Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953). In that case a husband claimed as separate property certain leasehold interests acquired during marriage under “farmout agreements.” The leasehold interests were conveyed to a partnership of which the husband was a member in consideration of the drilling of gas wells. The funds of the partnership used to finance the drilling of the wells were separate property of the husband. We recognized that the husband’s separate estate was entitled to reimbursement of separate funds so expended, but held that the leasehold interests were community property of the husband and wife inasmuch as the contractual right to obtain the interests as well as the interests themselves were acquired during the marriage by the talent, skill and toil of one of the marriage partners. In the instant case, the testimony of Tarver clearly establishes that the contractual rights to the leasehold interests as well as the interests themselves were acquired by him because of his peculiar talent, skill and toil. Under the rule of Norris v. Vaughan, the first community may have been entitled, under proper circumstances, to recover the rental value of the drilling rigs and equipment, but it did not become the owner of the Magrill and Free leasehold interests. These interests are a part of the second community estate as a matter of law.

In support of their contentions petitioners quote a statement from Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 627, as follows: “The community rights of a spouse growing out of a marriage can only affect the individual interest of the other spouse growing out of a preceding marriage. The rights of children by the preceding marriage cannot be affected by the rights of either party arising out of the. second marriage.” That statement is much too broad, as our holding in this case indicates, and should be related to the question which the Court was deciding. The Court of Civil Appeals’ description of the trial court’s judgment in Boettcher v. Means, Tex.Civ.App., 201 S.W.2d 255, and its holding with respect thereto are so lacking in clarity as to be useless as a precedent.

For purposes of this opinion we have assumed that A. H. Tarver acted wrongfully in his management and disposition of the income and properties of the first community estate and that the rights of the parties are therefore governed by the rules relating to constructive trusts rather than those relating to resulting trusts.

There are other points of error in the applications. They present no error requiring reversal of the judgment of the Court of Civil Appeals. Accordingly, the judgment of the Court of Civil Appeals is affirmed.

      . The judgment made no specific award of diamond rings and jewelry shown by an official audit to be community of the first marriage and having a value of $8,625.00, but no complaint is made of this omission.

      . There is a slight variance between the value of the property on hand and the total value of the properties awarded, but the variance is of no consequence.

      . On former appeal, see 268 S.W. 779; 2 S.W.2d 422.

      . Emphasis ours throughout unless otherwise indicated.


author: WALKER, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Charles D. BROWN, Jr., Respondent.
    No. A-10585.
    Supreme Court of Texas.
    Oct. 6, 1965.
    Rehearing Denied Nov. 10, 1965.
    Roberts & Smith, Longview, for petitioner.
    Bean, Francis, Ford & Francis, Dallas, Jones, Brian, Jones & Baldwin, Marshall, for respondent.
   WALKER, Justice.

The question to be decided in this workmen’s compensation case is whether certain findings of the jury are in fatal conflict. Judgment on the verdict was rendered by the trial court in plaintiff’s favor for nine weeks’ temporary total incapacity, and 300 weeks’ permanent partial incapacity, at the rate of $35.00 per week, and the Court of Civil Appeals affirmed. 385 S.W.2d 489.

The material issues and the answers of the jury thereto are quoted in the opinion of the Court of Civil Appeals and will not be set out in full here. It is sufficient for our purposes to note that the jury found: (1, 2) that plaintiff sustained an accidental injury on or about December 3, 1962, while in the course of his employment for Blue Buckle Overall Company; (3,4, 5, 6, 7) that the injury was the producing cause of temporary total disability for nine weeks beginning on December 3, 1962; (8, 9, 10, 11) that the injury was also the producing cause of permanent partial disability beginning on February 5, 1963; and (13) that plaintiff’s average weekly wage earning capacity during the existence of such partial incapacity is “None.” Defendant contends that the answer to Special Issue No. 13 is in fatal conflict with the finding that the duration of plaintiff’s total incapacity was nine weeks.

Defendant directs our attention to Texas Employers Ins. Ass’n v. Phelan, Tex.Civ.App., 103 S.W.2d 863 (no writ), and Texas General Indemnity Co. v. Villa, Tex.Civ.App., 297 S.W.2d 231 (wr.ref.n.r.e.). Each of these cases involved findings that the claimant suffered permanent total disability and also sustained permanent partial disability of 100 per cent. In Phelan judgment was rendered on the verdict for total and permanent incapacity, and it was held that the answers of the jury were in fatal conflict. In Villa judgment was rendered for 60 per cent of the average weekly wage for the maximum of 300 weeks allowed by statute for permanent partial incapacity, and it was held that there was no fatal conflict destructive of the findings in so far as partial incapacity was concerned. The latter holding was based primarily on Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955, where it was reasoned that findings of total and partial disability during the same period of time are not in conflict as to the partial disability. These decisions are of little assistance here, because our problem is somewhat different. We are concerned with an asserted conflict between findings that plaintiff suffered total disability for only a short time but would thereafter have no wage earning capacity whatsoever.

The following definitions and instructions were given as part of the charge in the present case:

“(2) The term ‘TOTAL INCAPACITY’, as that term is used in this charge, does not imply an absolute inability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is regarded as totally incapacitated.
“(3) The term ‘PARTIAL INCAPACITY’, as that term is used herein, means that a person is suffering from a disability to the extent that he is only able to perform a part of the usual tasks of a workman, or is only able to perform labor of a less remunerative class than he did before the injury.
“(4) You are instructed that a person cannot be in law totally and partially incapacitated at the same time. If the plaintiff was totally and permanently incapacitated to labor, he could not be partially incapacitated to any extent for any period of time; stating it another way (meaning the same thing), if the plaintiff was partially incapacitated to any extent for any period of time, he cannot be totally incapacitated for such period of time.”

Under the Workmen’s Compensation Act and under the definitions and instructions quoted above, a person who has no wage earning capacity is totally and not partially incapacitated. The answer that plaintiff suffered total disability for nine weeks is thus in conflict with the finding in response to Special Issue No. 13 that he had no wage earning capacity during a subsequent period of disability. There is also a conflict between the answer to Special Issue No. 13 and the finding that plaintiff’s disability on and after February 5, 1963, was partial.

Plaintiff argues that the conflict is not fatal under the test approved in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, because there is no combination of answers which would entitle the defendant to a more favorable judgment than that rendered by the trial court. The test referred to is useful and satisfactory in most cases for determining the materiality of the conflict, but it is not infallible. Its literal application would have led to an af-firmance of the trial court’s judgment in Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772. We held there that the judgment should be set aside if, when one of the conflicting answers is disregarded, no judgment could be rendered for either party on the remainder of the verdict. That is our situation here.

The applicable wage rate for measuring plaintiff’s earning capacity prior to the injury is $62.77 per week. If we disregard the finding that the period of plaintiff’s total incapacity was nine weeks, judgment could not be rendered for either party because there would be no determination of the duration of total disability and the findings of partial disability and no wage earning capacity during the existence of such partial disability are in conflict. If we disregard the finding of partial disability, judgment could not be rendered for either party because the finding of nine weeks’ total disability is in conflict with the finding of no earning capacity during a period of permanent disability. If we disregard the finding of no earning capacity, judgment could be rendered only for the nine weeks of total disability because there would be no way of computing the compensation to which plaintiff is entitled during the period of his partial disability. The jury’s answers are in fatal conflict under the test applied in Bradford v. Arhelger, supra, and the judgment of the trial court must be set aside.

There is no merit in defendant’s contention that the finding of the jury in response to Special Issue No. 13 is contrary to the undisputed evidence. The remaining points of error deal with matters considered by the Court of Civil Appeals and over which its jurisdiction is final, or present questions which are not likely to arise at the second trial.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.


author: PER CURIAM.

text:
    STEEPLE OIL AND GAS CORPORATION and Raymond A. Baur, Petitioners, v. J. D. AMEND, Respondent.
    No. A-10973.
    Supreme Court of Texas.
    Oct. 6, 1965.
    Henry Klepak and Roy J. True, Dallas, for petitioners.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for respondent.
   PER CURIAM.

Petitioners have attempted to appeal from a partial summary judgment without a severance of the other issues between the parties. Since the judgment is interlocutory and not appealable, under our holding in Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959), neither this Court nor the Court of Civil Appeals has power to review it. We accordingly reverse the judgment of the Court of Civil Appeals and dismiss the appeal. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).


text:
    Horton B. DOBSON et ux., Petitioners, v. DON JANUARY ROOFING CO., Inc., Respondent.
    No. A-10993.
    Supreme Court of Texas.
    Oct. 13, 1965.
    Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for petitioners.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 392 S.W.2d 153.

Horton B. Dobson and wife seek by their suit to recover damages from Don January Roofing Co., Inc. Their suit grows out of damage to their residence from a fire alleged to have been caused by the negligence of defendant’s employee in allowing hot ashes to fall from a cigarette he was smoking onto the roof of plaintiffs’ house which' he was repairing. Defendant filed a motion for summary judgment to which was attached an affidavit of the employee. The plaintiffs filed a reply to the motion for summary judgment to which they attached an affidavit made by Mrs. Dobson. The trial court also had before it the depositions of Mr. and Mrs. Dobson. Summary judgment was rendered for the defendant.

The Court of Civil Appeals affirmed the trial court’s judgment on the ground that plaintiffs’ petition did not state a cause of action. The stated basis for the holding was that the defendant could not be charged with liability for the negligence of its servant in the respect indicated since the smoking of the cigarette by the employee while working was not in the course of his employment.

We refuse writ of error, no reversible error. Rule 483, Texas Rules of Civil Procedure. It is our opinion that summary judgment was properly granted in favor of the defendant on the basis of the proofs made by the affidavits and depositions. Accordingly, our refusal of writ of error is not to be regarded as an approval of the holding made the basis of the Court of Civil Appeals’ judgment of affirmance.


text:
    NEWSOME TRUCK LINES, INC., Petitioner, v. BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, Respondent.
    No. A-10899.
    Supreme Court of Texas.
    Oct. 6, 1965.
    Rehearing Denied Nov. 3, 1965.
    Oldham & Lorance, Arthur Stamm, Jr., Houston, for petitioner.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Tom Connally, Houston, for respondent.
   PER CURIAM.

The decision of the Court of Civil Appeals at Houston in this case (390 S.W.2d 537) conflicts with the decision of the Eastland Court of Civil Appeals in the case of Continental Insurance Company v. Griffin, 218 S.W.2d 350 (1949).

We are in agreement with the decision of the Houston Court in the present case.

The application for writ of error herein is Refused, No Reversible Error. Rule 483 Texas Rules of Civil Procedure.


text:
    Robert L. SMITH et ux., Petitioners, v. PULLIAM, INC., Respondent.
    No. A-10773.
    Supreme Court of Texas.
    Oct. 13, 1965.
    Rehearing Denied Nov. 10, 1965.

      H. J. Loe, Fort Worth, for petitioners.
    Leo Ferris, Fort Worth, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals in this case is reported in 388 S.W.2d 329 (1965).

After reviewing the entire record in the light of the pleadings, the evidence, and the status of the points preserved for appeal, we are of the opinion that a correct result has been reached by the courts below, and that writ of error should not have been granted in this case. Accordingly, the order granting the writ of error is set aside; and the application for writ of error is refused, no reversible error. This action is not to be construed as approving in toto the discussion of the Court of Civil Appeals on the right to recover in quantum meruit.


author: POPE, Justice.

text:
    HUDIBURG CHEVROLET, INC., Petitioner, v. GLOBE INDEMNITY COMPANY, Respondent.
    No. A-10473.
    Supreme Court of Texas.
    Oct. 6, 1965.
    Rehearing Denied Nov. 3, 1965.

      Kerr, Day & Gandy, Fort Worth, for petitioner.
    Thompson, Knight, Wright & Simmons, Pinkney Grissom, David S. Kidder and George C. Chapman, Dallas, for respondent.
   POPE, Justice.

Hudiburg Chevrolet, Inc., the named insured in two policies issued by Globe Indemnity Company, sued Globe to recover for a loss caused by the theft of a Chevrolet truck tractor that Hudiburg held in storage under a contract with General Motors Acceptance Corporation. Comas Roark, the one from whom GMAC had repossessed the truck, took the truck from Hudiburg’s lot without permission. GMAC then demanded that Hudiburg pay its losses, which Hudiburg did by paying $2,428.83, the unpaid balance that Roark owed GMAC. Hudiburg then asserted one claim against Globe for the $2,428.83 it paid to GMAC and another for $688.35 for parts it furnished Roark to install on the truck while stored in Hudiburg’s shops. A jury found that (I) the taking of the truck by Roark was a theft, (2) the truck’s reasonable cash market value was $4,000.00, and (3) Hudi-burg paid GMAC the sum of $2,428.83. The trial court disregarded these answers and held there was no theft but gave Hudi-burg judgment for $688.35 for the parts. The Court of Civil Appeals held that the policies afforded Hudiburg no coverage for either the truck or the parts and denied all recovery. 383 S.W.2d 65. We affirm the Court of Civil Appeals’ denial of judgment for the parts, but reverse the judgments below which denied recovery for theft of the truck.

Hudiburg has preserved no point complaining of the intermediate court’s reversal of the trial court’s judgment for $688.35, so we are concerned only with Hudiburg’s right to recover for the truck. The basis for the trial court’s judgment notwithstanding the verdict was that there was no theft. The first argument advanced in support of that conclusion is that there can be no theft unless the vehicle was taken from the owner and Hudiburg was not the owner. The other argument is that, even if the taking from Hudiburg’s possession satisfied the ownership element, Roark, under all the evidence, took the truck under a bona fide claim of right. These are law questions.

Hudiburg Chevrolet, Inc., originally sold the truck to J. W. Parker in July of 1960. Parker paid some cash and owed $4,368.00 under a conditional sales contract. Hudi-burg assigned the contract and the legal title to General Motors Acceptance Corporation with recourse. Parker became delinquent in his payments, and GMAC then discovered that in March of 1961 Parker had sold his equity to Comas Roark. There has never been a transfer of the certificate of title from Parker to Roark. Roark made some payments which GMAC accepted, and in May of 1961 he wrecked the truck in Arkansas. Hudiburg learned of the wreck and sent one of its employees to haul the truck to its place of business in Grapevine, Texas. Since Roark was behind on his payments, GMAC and Hudiburg treated the transaction as a repossession. After the wreck, Roark’s insurer cancelled the policy covering the truck. GMAC instructed Hudiburg to hold the truck and on May 24, 1961, Hudiburg signed a “Receipt for Repossessed Car,” which showed that Hudi-burg was storing the truck for GMAC. Hudiburg agreed, as reflected by the receipt, that the truck, “will not be disposed of until the outstanding balance due General Motors Acceptance Corporation is paid.” There was evidence that Hudiburg was storing the truck for GMAC after repossession from Roark.

Roark began negotiations with Hudiburg and GMAC to obtain a release of the truck. He agreed to make the repairs to the truck in Hudiburg’s shop; Hudiburg agreed to furnish the parts to Roark at cost; and GMAC agreed to release the truck when Roark complied with certain conditions. The new arrangement between the three parties was evidenced by a letter written by GMAC on June 8 and received by Hudi-burg and Roark the next day. As of that date, Roark knew that GMAC had repossessed the truck and he had agreed upon the terms by which he could resume his payments and regain possession. Roark, as conditions to approval of a new contract and the resumption of possession, was required to (1) arrange for the transfer of title from Parker to himself, (2) furnish proof to GMAC that all taxes and transfer fees were paid, and (3) furnish a paid-up twelve-month policy on the vehicle. He also agreed to execute a six-months installment note and a mortgage to secure Hudi-burg for the parts furnished Roark at cost. Roark testified and acknowledged that he agreed upon these conditions and that he complied with none of them. On June 13, 1961, Roark took the truck from Hudiburg’s lot without the knowledge or consent of anyone. GMAC then made demand upon Hudiburg, its bailee and guarantor, for the unpaid balance of $2,428.83 owed by Roark. Hudiburg paid that amount to GMAC and made a claim against Globe, its insurer, for the theft of the truck by Roark.

The courts below have held that there is no evidence which supports the finding of theft of the truck. The first basis for this conclusion is, as expressed by the Court of Civil Appeals, “the vehicle was the property of Roark.” The argument is that Roark owned the truck and could not steal his own property or from himself. The record does not support the intermediate court’s conclusion that Roark owned the truck or had the right to its possession. Actually the facts admitted by Roark during the trial are to the contrary. As of June 8, 1961, Roark knew that GMAC had repossessed the truck because of the wreck, the delinquent payments, and the cancellation of his insurance. He knew and testified that before he could reinstate his contract and regain possession he had to meet certain conditions and that he did not meet them. Roark was not and knew that he was not entitled to the possession of the truck that was rightfully under the control of GMAC and stored with Hudiburg under a contract not to release it. Hudiburg had the additional claim to a constitutional lien for the parts furnished, and Roark had agreed to give a note and mortgage payable in six months to cover that obligation. He did not comply with that agreement.

Hudiburg was the named insurer on what has been termed “Policy B” in the course of this case. It is the only one that needs discussion. The trial court defined the term “theft” in connection with its issue inquiring about Roark’s theft and did so in these words of Article 1410 of the Penal Code:

“ * * * the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”

“Theft” when used in an insurance policy, as it was in Policy B, is given the same meaning it has under the criminal law. See Bomar v. Insurors Indemnity & Ins. Co., 150 Tex. 484, 242 S.W.2d 160 (1951); Indemnity Co. of America v. Slade, 4 S.W.2d 649 (Tex.Civ.App.1928, writ ref.). Even a true owner, who takes from one who is lawfully in possession of property, may he guilty of theft. Art. 1416, Vernon’s Ann. Penal Code. There was a theft when a mortgagor took possession of two horses he had placed in the possession of another as security for a debt, Haley v. State, 70 Tex.Cr.R. 30, 156 S.W. 637 (1913), and when the owner of a pistol took it from his pledgee. Lewis v. State, 50 Tex.Cr.R. 331, 97 S.W. 481 (1906). There was a theft when an owner of a watch fraudulently took it from the possession of the man holding it as security for repairs. State v. Stephens, 32 Tex. 155, 156 (1869). There may be a theft,, when, as here, the ownership is in one person, and the possession is in another. Arts. 1414, 1415, 1416, 1417, Vernon’s Ann. Penal Code; Winn v. State, 138 Tex.Cr.R. 202, 135 S.W.2d 118 (1940); 55 Tex.Jur.2d, Theft, § 22.

We must also reject the contention that the evidence shows, as a matter of law, that Roark took the truck under a hona fide claim of right. Proof of such a claim of right is a legal defense to the charge of theft, because it negates the element of a fraudulent taking. Burnaman v. State, 130 Tex.Cr.R. 355, 94 S.W.2d 751 (1936); 6 Cyc. of Automobile Law and Practice, § 3711; 5 Appleman, Insurance Law and Practice, § 3211.

Several specific events show that Roark’s taking was without a bona fide claim of right to the truck. On May 24, before the truck was repaired, Roark asked permission to remove it from Hudiburg’s premises and was refused. After the repairs were made, Hudiburg permitted Roark to test drive it away from the premises only in the company of one of its employees. Roark’s bona fide claim of right is based upon his own testimony that he believed he had complied with all of GMAC’s requirements because he had brought his payments up to date. On cross-examination, however, he was confronted with the letter GMAC had written to Hudiburg five days before he took the truck. He acknowledged that he was sitting across the desk when K. H. Hudiburg phoned GMAC concerning his, Roark’s, resumption of payments and right to regain possession of the truck, and also that he received a copy of the letter. He admitted that he understood the conditions to the new arrangement between him and GMAC and that he had not met those conditions. He testified that he was denied permission to take the truck because the insurance on it had been cancelled and that he knew of this requirement. The day before Roark took the truck, he was in Hudiburg’s office again seeking possession of the truck. He asked Hudiburg to call a Dallas insurance agent who would confirm the fact that he had made arrangements for the insurance. Hudiburg called the agent in the presence of Roark, but the agent told Hudiburg no arrangements had been made, that Roark owed him for other insurance, and that he would not cover the truck nor carry Roark.

Hudiburg testified that Roark had threatened to take the truck and, for that reason, he had locked the truck after putting it on his lot that was fenced on three sides with the office building on the other side. He told his employees to guard the truck. While Hudiburg was away from his office for one hour, Roark, with the use of an extra set of keys, moved the truck from Hudiburg’s lot. Roark, when asked on cross-examination if he knew that he took the truck against Hudiburg’s consent, replied, “I suppose it was.” On the very morning of the day that Roark took the truck, Hudiburg again refused Roark’s request to permit him to have possession. Upon the basis of the repeated refusals to permit Roark to have possession, the several unfulfilled commitments both to GMAC and Hudiburg which Roark testified about and admitted, and the stealthy manner of taking the truck, it can not he held that Roark’s bona fide claim of right to the truck was established as a matter of law. The jury finding of theft should not have been disregarded.

We also sustain Hudiburg’s contention that it, as bailee, was covered by the terms of the policy designated as “Policy B” by the Court of Civil Appeals. Insurer Globe argues that the policy covered only the owner of the truck, that Hudiburg was not the owner, and that a bailee was covered only upon proof that it was legally liable. Globe contends that the policy covered Hu-diburg, the named insured, only by way of indemnity against its torts, such as its liability to GMAC for negligently permitting Roark to take the truck from the lot. The contention is not sound. The pertinent policy provisions are:

Original Policy
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.”
"Endorsement 50
“The company agrees to pay within the limits stated in paragraph 4, all sums which the insured shall become obligated to pay by reason of liability imposed by law for direct loss of or damage including loss of use by theft, hereinafter called loss, to automobiles which are the property of others and in the custody of the insured for storage, repair or safekeeping, sustained under those coverages, for which a specific premium is set opposite thereto.”
"Endorsement 50A
“In consideration of an additional premium of $14.00, this policy is extended to cover for direct loss of or damage including loss of use by theft, hereinafter called loss, to automobiles which are the property of others and in the custody of the insured for storage, repair or safekeeping, sustained under coverages described in Endorsement 50, garage keeper’s legal liability coverage endorsement, attached to this policy, for which a specific premium is set opposite thereto, regardless of the legal liability of the insured. This extension of coverage is to apply only when no specific insurance exists in the name of or for the account of the owner of any such automobile. Such insurance shall be provided in accordance with the terms and conditions of the policy and Endorsement 50 which are not inconsistent with the provisions of this endorsement. Where there is specific insurance in the name of or for the account of the owner, coverage under this policy shall attach only as provided by Endorsement 50, whether such specific insurance be valid or not.

Endorsement 50 insured Hudiburg for “all sums which the insured shall become obligated to pay by reason of liability imposed by law. * * * ” Endorsement 50A broadened the coverage to include “direct loss of or damage including loss of use by theft * * * to automobiles which are the property of others and in the custody of the insured for storage, repair or safekeeping, sustained under coverages described in Endorsement 50 * * * regardless of the legal liability of the insured.” Insurer Globe contends that its policy covered insured only in the event of the insured’s legal liability, but the policy expressly affords coverage “regardless of insured’s legal liability.” Policies which contained language not so clear as that used in Endorsement 50A, have been generally held to cover the property itself and not by way of indemnity only. The general rule is stated in 29 Am.Jur., Insurance, § 295.

“Policy provisions covering property contained in specified places and ‘for which the insured is liable’ have been held to insure against loss of the property and not to indemnify insured against his legal responsibility in tort or by contract to the owners of the property. * * * ”

The rule permits the insured bailee to sue for all the losses and then account to the owner. California Ins. Co. v. Union Compress Co., 133 U.S. 387, 10 S.Ct. 365, 33 L.Ed. 730 (1890); Home Insurance Co. v. Baltimore Warehouse Co., 93 U.S. 527, 23 L.Ed. 868 (1876); Globe & Rutgers Fire Ins. Co. v. United States, 202 F.2d 696 (5th Cir.1953); American Eagle Fire Ins. Co. v. Gayle, 108 F.2d 116 (6th Cir.1939); Hartford Fire Ins. Co. v. Evans, 255 S.W. 487 (Tex.Civ.App.1923, no writ); Southern Cold Storage & Produce Co. v. A. F. Dechman & Co., 73 S.W. 545 (Tex.Civ.App.1903, no writ); Germania Ins. Co. v. Anderson, 15 Tex.Civ.App. 551, 40 S.W. 200 (1897, no writ); Home Ins. Co. v. Favorite, 46 Ill. 263 (1867); Sanford Mfg. Co. v. Western Mutual Fire Ins. Co., 229 Iowa 283, 294 N.W. 406 (1940); Rouse v. Albany Insurance Co., 257 N.C. 267, 125 S.E.2d 424 (1962); Lucas v. Liverpool & London & Globe Ins. Co., 23 W.Va. 258 (1883); Johnston v. Charles Abresch Co., 123 Wis. 130, 101 N.W. 395, 68 L.R.A. 934 (1904); 67 A.L.R.2d 1241; 53 A.L.R. 1409; 11 Couch on Insurance 2d, §§ 42:321, 42:330-332.

The jury found that the reasonable market value of the truck was $4,000.00, which would be the sum Hudiburg would ordinarily be entitled to recover as bailee for GMAC. Reef v. Hamblen, 47 S.W.2d 375 (Tex.Civ.App.1932, writ ref.); Indemnity Co. of America v. Slade, 4 S.W.2d 649 (Tex.Civ.App.1928, writ ref.). However, Hudiburg satisfied GMAC by paying the lesser sum of $2,428.83 and does not pray for recovery of the market value.

We construe the opinion of the Court of Civil Appeals to hold that there was no evidence of a theft and also that the policies did not afford coverage to Hudiburg, the bailee, and it is our opinion that both rulings are in error. Since the Court of Civil Appeals applied the wrong principles of law with respect to the issues of theft and policy coverage, and since Globe preserved a cross-point in that court which urged that the jury finding of theft was against the great weight and preponderance of the evidence, the cause will be remanded to that court.

Hudiburg has waived its $688.35 claim for parts, and that portion of the cause is severed and the judgment of the Court of Civil Appeals denying recovery is affirmed. That part of the judgment of the Court of Civil Appeals which denied recovery to Hudiburg for theft of the truck is reversed and the cause is remanded to the Court of Civil Appeals. Costs are adjudged against Globe.


author: BELCHER, Commissioner. WOODLEY, Judge.

text:
    Ambrosio R. PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38182.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Rehearing Denied Oct. 20, 1965.

      Hope, Henderson & Hohman, by James E. Hope, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of heroin; the punishment, ten years.

Officer Scholl testified that while on the front porch of a house and about 2 or 3 steps from the door which was partly glass, he saw the appellant and Richard Rivera sitting on the floor in a room and Alicia Gonzales, a girl, was sitting on a couch; that the appellant had something three or four inches long in his hand and Rivera had a finger stall in his hand; and that he saw several objects on the glass portion of a picture frame which was on the floor and within reach of the appellant. At this time a dog began barking, and Rivera came out on the porch. When Rivera saw Scholl, he (Scholl) said “Police officers. We have a search warrant.” Then Rivera “hollered something in Spanish” and tried to get back into the room but Scholl shoved him toward Officer Duecker. As Scholl entered the room he saw the appellant drop an eye dropper and a needle and run toward the bathroom, into which Officers Ortiz and Duecker pursued him. Alicia Gonzales jumped from the couch and ran toward the picture on the floor as if she were going to get the objects on it, and Scholl grabbed her. Officer Scholl further testified:

A: “I picked up everything that was right there in the immediate vicinity, either around the picture or on the picture.”
Q: “All right. Now, what were those items, sir?”
A: “One was an eyedropper and a needle, and it had a liquid on it; one was a bottle top, and a spoon. There was a glass of water.”
Q: “Of water?”
A: “About so tall (Indicating), half full of water and then there was an empty gelatin capsulebox; then there was another gelatin capsule box that had a finger stall on top, but part of the box was drawn open, the drawer section of the box, and it had a white powder and a razor blade inside of it.”
Q: “What did you do with those items, sir?”
A: “I took possession of all of them”

Every obj ect in the room, except the picture that was obtained by Scholl, was placed in one of three white envelopes, which were marked for identification, and then the three envelopes were placed in a brown envelope which was sealed and marked for identification. Officer Scholl retained possession of the brown envelope, carried it to Austin, and personally delivered it to Mr. Tullis at the laboratory of the Texas Department of Public Safety.

Roland E. Tullis, chemist and toxicologist for the Department of Public Safety in Austin, testified that he received a package from Officer Scholl, a state narcotic agent, in Austin, which he exhibited and identified at the trial. He further testified that from a chemical analysis which he made of the items contained in the package he determined that:

“The white powder, which was in the finger stall, in exhibit number four, was forty-nine one-hundredth of a gram of powder, which was forty-five per cent heroin. The two capsules in exhibit number three contained eight one-hundredths grams of powder, which was 22.8 percent heroin. The bottle cap, which had in it a piece of cotton, in exhibit three, contained one and 92 hundredth milligrams of heroin. The liquid in the eyedropper contained sixty-eight one hundredth of a milligram of heroin * *

The testimony of Officers Ortiz and Krai was substantially the same as that of Officer Scholl.

The appellant did not testify but called several witnesses.

Antonia Stein testified that she rented the house in question and was in charge of it; that she worked from 2 p. m. until midnight and sometimes did not get home until 12:30 a. m.; that she did not know the appellant and first saw him when the officers arrested him at her house; that Richard Rivera and Alicia Gonzales occupied a room at her house.

Alicia Gonzales testified that while she was lying on the bed Richard Rivera was sitting on the floor with an eyedropper, needle, boxes, capsules, and powder on the top of a picture and was capping “some of this stuff” which she knew was heroin; that when the dog barked Rivera went outside and the officers entered the room, and she first saw the appellant when the officers brought him from the bathroom.

The appellant’s sister testified that he left her house about 11 p. m. on the night in question, going by bus to a friend’s home to spend the night. It was six or seven miles from the sister’s home to the house in question, according to Officer Krai.

Appellant’s sole contention for reversal is that the officers did not have a valid search warrant, therefore the entry and search of the house were illegal and the admission of the testimony showing the finding of the heroin therein was error.

If the search were illegal, the appellant should have urged a timely objection to the evidence showing the search and the results thereof. No objection was made during the testimony of Officer Scholl showing the entry, the search, and the finding of the heroin in the house. Hence no error is shown. 4 Tex.Jur.2d 704, Sec. 446; Jones v. State, Tex.Cr.App., 388 S.W.2d 429. Further Alicia Gonzales, a witness called by the appellant, testified on cross-examination, without objection, that she knew that the “stuff” on top of the picture was heroin.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant directs attention to his motion to quash the search warrant made before trial and re-urged during the examination of the witness Manuel Ortiz upon whose affidavit it was issued. He urges that we were in error in holding that he waived his right to complain of the search by his failure to object to the testimony of Officer Scholl.

The basis of appellant’s attack upon the search warrant is the contention that the affidavit upon which it issued is insufficient to support a finding of probable cause under the Supreme Court’s holding in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

A similar contention was overruled in Ex Parte Gomez, Tex.Cr.App., 389 S.W.2d 308. Here, as there, the affidavit states that a credible and reliable person informed the affiant that he saw narcotic drugs on the premises. In the affidavit before us, the informant fixed the time he saw the narcotics as the same day the affidavit was made.

If before us, the contention that the affidavit for issuance of the search warrant is insufficient under Aguilar v. Texas, supra, is overruled.

Appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Ex parte Erwin G. ERNST.
    No. 38748.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1965.
    Samuel H. Robertson, Jr., Carl E. F. Dally, Houston, for petitioner.
    Paul B. Miller, Jr., Houston, for respondent.
   MORRISON, Judge.

This is a habeas corpus proceeding. During the Court’s vacation, an application for writ of habeas corpus was presented to the writer alleging that the relator Ernst was held in contempt by the Honorable John Snell, Jr., Judge of the 55th Judicial District Court of Harris County, Texas, and committed to the custody of the sheriff until he purged himself by delivering to the defendant certain documents in his possession.

It has now been made known to this Court that such documents have been delivered to defendant.

Relator’s motion to dismiss his application for writ of habeas corpus is granted.


author: McDONALD, Presiding Judge.

text:
    Salvador GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 38603.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order revoking probation. On July 17, 1964, appellant was convicted for the offense of burglary with intent to commit theft; his punishment was assessed at five years. Imposition of sentence was suspended, and appellant was placed on probation. Motion to revoke probation was granted on the 25th day of September, 1964. Notice of appeal was given. The appeal was dismissed in that cause, No. 37,579, on January 13,1965, 386 S.W.2d 138, because sentence had never been imposed.

Appellant was sentenced on the 2nd day of April, 1965. Notice of appeal was given at that time. A new number, 38,603 was given appellant’s cause for the reason that the prior case, 37,579 had been dismissed.

Using the prior record in 37,579, and the supplemental transcript herein in this cause, which contains the sentence, the proceedings appear to be regular.

There is no statement of facts and no showing that the trial judge abused his discretion in revoking probation.

The judgment is affirmed.


text:
    Bobby W. BEARDSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38370.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1965.

      Norman S. Spencer, Jr., Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, four years.

Garageman Patterson went to Little-field to tow in a Buick automobile for repair. When he arrived at his garage at Big Spring it was full and he left the Buick, still attached to the wrecker but lowered to the ground, outside the garage. The next morning it was missing. Two days later, two patrolmen of the city of El Paso observed a Buick being pushed out of a street intersection by a milk truck. After pushing the Buick several car lengths, the milk truck drove away, and the patrolmen approached the appellant who had been seated in the driver’s seat and asked him if he needed any assistance. They were informed by appellant that he had run out of oil. During the conversation the officers observed that there were no keys in the ignition switch and that though the automobile had out of date New Mexico license plates, it bore a recent Texas Safety Inspection sticker. After a short conversation with appellant as to the ownership of the Buick, he began to cry and admitted that he had stolen it in Big Spring and had switched license plates from an automobile he had found parked beside the road near El Paso.

Appellant was then placed under arrest and delivered to the officers from Big Spring. Shortly thereafter, appellant escaped by crawling through a first story window, but was reapprehended hours later. Two days later appellant executed the written confession which was introduced in evidence.

Appellant contends that the confession was involuntary because he was told by the Sheriff that he would release him from solitary confinement if he would make the statement. The Sheriff denied having made such a promise and admitted that appellant remained in solitary confinement for approximately a week after the confession was executed because of the prior escape. No evidence was introduced before the jury as to the involuntary nature of the confession, and the trial court entered his findings of fact, which are supported by the record, that appellant was advised of his right to counsel, that he was properly warned prior to the making of the confession and that the Sheriff did not promise to release appellant from solitary confinement if he would make a written statement.

While testifying in the absence of the jury appellant admitted that he asked to see the District Attorney and was carried from the jail to his office and was there informed by the District Attorney that he might use the telephone to call his court appointed lawyer before making any statement, but declined to avail himself of the use of the telephone which was available for such purpose saying that he just wanted to tell the truth about the matter. We have concluded that he expressly waived his right to counsel and brought himself within the rule announced by the Supreme Court of the United States in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.

The rule in Larkin v. State, 157 Tex.Cr.R. 284, 248 S.W.2d 134, disposes of appellant’s contention as to the value of the automobile.

The Buick recovered by the El Paso Police was shown by other testimony to be the one stolen from the Patterson garage.

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


text:
    Herbert LAWSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38283.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1965.
    Engelke, Brown & Holbrook, By Don Brown, La Marque, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is Driving a Motor Vehicle while Intoxicated; the punishment, a fine of $100.00 and three (3) days confinement in the County Jail.

The statement of facts, in narrative form, reflects that appellant was driving a Buick automobile on a street in Galveston; that he ran a red light and appellant’s car was struck by an automobile driven by Marshall Wells at approximately 12:30 P.M.; that appellant smelled strongly of alcohol; his eyes were glazed, and he staggered when he walked; that in the opinion of those who saw him he was intoxicated.

Appellant testified he played a card game called “pitty pat” with Dan Anderson and Tom Jackson from about 8:00 A.M. until 10:30 A.M. that Sunday morning; that the three of them went to the Golden Sparrow Cafe; that approximately 12:30 P.M. he left the cafe and drove through an intersection on an orange light; that he almost cleared the intersection when he was struck by the Wells automobile; that he was nervous and shaken up, but he was sober; that he had drunk only two cans of beer that morning.

The testimony of Anderson and Jackson corroborated that of appellant.

The jury chose to accept the testimony of the witnesses called by the State. We find the evidence sufficient to support the conviction.

To appellant’s amended motion for new trial counsel for appellant attached an affidavit in which he complains that reversible error was committed during the argument of the prosecutor. There is no formal nor informal bill of exception, and therefore the matter is not before this Court for consideration. Smith v. State, 166 Tex.Cr.R. 614, 317 S.W.2d 539.

“A motion for new trial cannot be made a substitute for or take the place of a bill of exception.” 5 Tex.Jur.2d 210, Sec. 134.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Thomas H. BENNETT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 38459.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.

      Shannon L. Morris, Baytown, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ruben W. Hope, Jr., and Allen D. McAshan, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by Thomas H. Bennett, principal on an appearance bond, and his sureties, John M. Shearer and E. E. Wain-scott, from a final judgment of County Criminal Court at Law No. 4 of Harris County, forfeiting said bond.

The bond, dated January 26, 1964, in the penal sum of $500, was entered into in Justice Court, Precinct No. 3, of Harris County.

The bond recites that the principal, Bennett, had been arrested, on a misdemeanor charge of driving while intoxicated, by virtue of a warrant issued by M. M. Brown, Justice of the Peace of Precinct No. 3 of Harris County, Texas, and was conditioned that the defendant would make his appearance before the justice court instanter, “there to remain in attendance from day to day and term to term, until discharged by due order of the Court, to answer the aforesaid accusation against him and shall personally appear for any and all subsequent proceedings had relative to the above charge before the Grand Jury of said County and before any Court of said County in which said subsequent proceedings may be pending and not depart the Court without leave, of the proper Court, and then in that case the bond will be null and void, otherwise to remain in full force and effect.”

On February 5, 1964, an information and complaint were filed in County Criminal Court at Law No. 4, in Cause No. 187,814, charging the defendant Bennett with the offense of driving while intoxicated, alleged to have been committed on or about the 24th day of January, 1964.

Judgment nisi was entered in the County Criminal Court No. 4 on August 25, 1964, forfeiting the bond upon failure of the principal Bennett to appear and answer when the case was called for trial.

Scire facias was duly issued and served upon the appellant sureties, who, on October 5, 1964, filed their answer thereto.

On February 26, 1965, a non-contested judgment was entered against appellants in the case, which was set aside by the court on March 8, 1965, in an order granting appellants a new trial.

On April 2, 1965, a new trial was held and at the conclusion thereof the court entered judgment against appellants for the full amount of the bond.

From such judgment, appellants prosecute this appeal.

At the trial, the state introduced in evidence, among other instruments, the appearance bond, judgment nisi, and scire facias.

Three obj ections were made by appellants to the admission in evidence of the appearance bond.

The first objection was, in substance, that there was a fatal variance between the bond and the scire facias because the bond was conditioned that the defendant Bennett appear instanter before the justice of the peace of Precinct No. 3 of Harris County at a special term to be held in and for Harris County at the courthouse in Bay-town, whereas the scire facias recited that the bond was conditioned that the defendant would make his personal appearance before the Criminal Court at Law No. 4 of Harris County, instanter, at the term of said court then in session at the courthouse in the city of Houston.

The question of whether there was a fatal variance must be determined in light of the provisions of Art. 275a, Vernon’s Ann.C.C.P., enacted by the 55th Legislature in 1957.

Art. 275a, supra, reads, in part:

“Section I. Where a defendant, in the course of a criminal action, gives a bail bond or enters into a recognizance before any court or person authorized by law to take same, for his personal appearance before a court or magistrate, to answer a charge against him, the said bond or recognizance shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court or magistrate designated therein, and for any and all subsequent proceedings had relative to the charge, and each such bail bond or recognizance shall be so conditioned except as hereinafter provided.”

In Picaroni v. State, Tex.Civ.App., 364 S.W.2d 240, cited and relied upon by appellants, this court did not pass upon the question of whether the above statutory provisions may be read into a bail bond, because in that case there was no showing that the indictment returned against the accused in district court was for the same offense charged against him in the justice court for which he had made bond.

Later, in Hartley, et al., v. State, Tex.Cr.App., 382 S.W.2d 483, this court gave application to the provisions of Art. 275a, supra, in holding that an appearance bond executed in a justice court requiring that the principal appear in said court to answer the charge and to also appear for any and all subsequent proceedings had relative thereto in any court, was sufficient to command his appearance before a county court at law to answer a charge subsequently presented against him by a complaint and information charging the identical offense.

The proof in the present case shows that the offense charged against the defendant Bennett in both the justice court and the county court was that of driving while intoxicated. The same county court number (187,814) and justice court number (51,391) appear on both the appearance bond, executed by appellants in the justice court, and the information filed against the defendant in the county court. This is sufficient to show the offense charged against the defendant in the county court was the same as that charged in the justice court.

Under the record and the provisions of Art. 275a, supra, the condition in the bond executed by appellants in the justice court was sufficient to command the defendant’s appearance in the subsequent proceedings in the county criminal court, and no fatal variance exists.

Appellants’ second objection to admitting the bond in evidence was on the ground that it appeared to have been approved, by the judge’s signature being placed thereon by a rubber stamp.

This would not vitiate the bond, as the approval of a justice of the peace is not necessary to the validity of a bond taken by him. In 8 Tex.Jur.2d 173, Sec. 47, it is stated that approval may be inferred from his return of the bond to the court to which it is directed. Dyches v. State, 24 Tex. 266.

Appellants’ third objection to the bond was on the ground that “the proper predicate has not been laid.”

Such objection was too general to merit consideration. See: 56 Tex.Jur.2d 516, Sec. 171, and cases there cited.

Complaint is made to the introduction in evidence of the judgment nisi over appellants’ objection that it was predicated upon a void bond, under the provisions of Art. 275a, supra.

At the trial, counsel for appellants testified that before the defendant Bennett was released on bail he was required by a clerk of the justice court to execute two bonds. He stated that the first bond was executed and approved for the amount of $400. Prior to releasing the defendant, a new bond in the amount of $500 was required and the bond in question ($500) was executed and approved. It is appellants’ contention that the clerk had no authority to require the second bond in view of Secs. 2 and 3 of Art. 275a, supra, which provide, in substance, that once a bail bond is given by a defendant he shall not be required to give another bond except when the judge or magistrate in whose court the action is pending shall find the bond insufficient and require another bond in an amount which he may deem proper.

Justice of the Peace Brown, in whose court the bond was executed, testified that he knew of no bond except the one sought to be forfeited. He further testified that in his court he had set up a schedule which provided for a bond of $400 for one charged with the misdemeanor offense of drunken driving and $500 where the person was charged with or suspected of having committed the felony offense of drunken driving. He further stated that such schedule was followed by his clerks and on occasions the amounts would be changed but only one bond accepted. Under the record, the contention is overruled.

The contention is also urged that the court erred in admitting the judgment nisi in evidence because it did not bear the signature of the trial judge.

While appellants made no such objection to the judgment when offered, we observe that although the judge’s signature did not appear on the judgment introduced in evidence from the minutes of the court, his signature was not necessary to the validity of the judgment. McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521.

We overrule appellants’ contention that the court erred in rendering final judgment of forfeiture against them because the record shows that the defendant’s name was not called at the courthouse door, as required by Art. 425, V.A.C.C.P. The judgment nisi recites that the defendant’s name was distinctly called at the door of the courthouse and that he did not appear. While there is testimony in the record that the trial judge directed the bailiff to go outside in the hallway of the courtroom on the fourth floor of the courthouse and call the defendant’s name, there is no showing that the bailiff did not go to the main door of the courthouse on the first floor and call his name. Be that as it may, under the recent decision of this court in Deem, et al., v. State, 170 Tex.Cr.R. 564, 342 S.W.2d 758, the record shows a substantial compliance with the requirement of Art. 425, supra, that the name of the principal be called, distinctly, at the courthouse door.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.