author: WOODLEY, Presiding Judge. McDonald, judge.

text:
    Reynaldo Alfredo CAMPOS, Appellant, v. The STATE of Texas, Appellee.
    No. 34170.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    Rehearing Denied March 21, 1962.
    Sanderson & Bagley, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is rape by force; the punishment, 99 years.

The undisputed evidence shows that appellant, a 32 year old brothel of one of her tenants in an apartment house adjoining her residence, went to the home of the prosecutrix, a 61 year old widow, about 11:30 P.M. and said he wanted to make a telephone call; that he made advances toward her and she scratched his face and screamed until he prevented her from doing so by putting his hand over her mouth; that after she fell or was pushed on to the floor of her bedroom, appellant attempted to have sexual relations with her, and did soon thereafter accomplish his purpose on the bed.

The prosecutrix testified that appellant sprang at her, forced her into the bedroom and on to the floor, removed her underclothes and opened his trousers; that he jerked her to her feet; pushed her on the bed, and that she resisted throughout with all the strength she had.

Appellant testified that he put his arm around the waist of the prosecutrix as she stood at her bedroom door; that she screamed, put her hand on his face and scratched him; that she fell on the floor of the bedroom; it scared him when she screamed and he put his hand over her mouth as she started to fall so she wouldn’t scream, and she quit. It was his testimony that thereafter she did not resist but suggested that they get on the bed, and “seemed to be pretty willing” to the intercourse.

Immediately upon getting out of the room the prosecutrix went to a neighbor’s home and, calling her, said: “Lois, Lois, let me in quick. I have been raped.” We find no error in the admission of the testimony of the prosecutrix as to such outcry or report. Torbert v. State, 166 Tex.Cr.R. 311, 313 S.W.2d 303.

Also, the neighbor testified to the same facts without objection.

We find the evidence sufficient to sustain the conviction and do not deem it necessary to set out the testimony corroborating the testimony of the prosecutrix.

We see no error in the admission of the prosecutrix’ testimony that she was a widow. If there was, the question was asked and answered before any objection was made and there was no request that the evidence be withdrawn. James v. State, Tex.Cr.App., 335 S.W.2d 603.

The admission of the testimony of the prosecutrix that appellant was trying to sexually attack her and that he had enormous strength and she had none does not present reversible error under the record.

The testimony as to the general reputation for virtue and chastity of the prosecutrix, offered after appellant had testified that she did not resist but in effect consented, was properly admitted. Myres v. State, 129 Tex.Cr.R. 468, 88 S.W.2d 109; Warren v. State, 54 Tex.Cr.R. 443, 114 S.W. 380; Holland v. State, 60 Tex.Cr.R. 117, 131 S.W. 563; 4 Branch’s Ann.P.C.2d Ed., 286, Sec. 1960.

No error is shown in the admission of the evidence obtained as a result of the search of the apartment. As has been stated, appellant was not a tenant and the apartment house belonged to the prosecu-trix who authorized the search. In addition, appellant testified to the same facts shown by the testimony to which he obj ected.

Several claims for reversal relate to the court’s charge. One complains that the jury was not instructed that there must be resistance upon the part of Mrs. Evans.

The charge contains the following: “Before you can convict the defendant of the alleged offense, you must believe from the evidence beyond a reasonable doubt that Mrs. J. E. Evans not only did not consent, but that she put forth her utmost resistance, using every exertion in her power to prevent the defendant from having sexual intercourse with her, considering the relative size and strength of the parties and conditions surrounding them at the time and all other circumstances in the case, and unless you so find and believe from the evidence beyond a reasonable doubt, you will find the defendant not guilty, . .

The next complaint is that in Paragraph 1 the court instructed the jury that the slightest penetration of the body of the female by the sexual organ of the male is sufficient “for proof of rape by force.”

We do not agree.

The quoted phrase is not found in the charge. The instruction to the effect that the slightest penetration was sufficient was preceded by the instruction that the force used, if any, must have been such as might reasonably be supposed sufficient to overcome resistance “and the penetration of the sexual organ of the said Mrs. J. E. Evans by the male organ of the defendant must be proved beyond a reasonable doubt.”

Objection was made that the court, in Paragraph 4, commented on the weight of the evidence. This objection was too indefinite. Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364. Also, the language of the charge pointed out in the brief does not constitute such a comment.

We overrule the contention that in said Paragraph 4 the burden of proof was placed upon the defendant.

The supplemental transcript contains several formal bills of exception, filed with the clerk of the trial court, all of which were returned with the refusal of the trial judge noted thereon within the time allowed by Art. 760d, Vernon’s Ann. C.C.P. Appellant did not agree with the reasons assigned by the trial judge and note such fact on the bills, and no bystanders bills were filed, hence the refused bills present nothing for review. The bills have, however, been examined and we have observed no error which would call for reversal.

The judgment is affirmed.

On Appellant’s Motion for Rehearing

McDonald, judge.

Appellant takes us to task for not mentioning, in our original opinion, his contention that the trial judge committed reversible error in making comments upon the weight of the evidence.

He raises this contention by formal and informal bills of exception.

Presiding Judge WOODLEY, in the opinion of February 7, 1962, held, and set forth the reasons as to why, the formal bills presented nothing for review. With that holding we still adhere.

The informal bill has been examined and we find no reversible error therein.

Appellant reurges certain points of error that were answered in our original opinion and we do not deem it necessary to discuss them further.

Remaining contentions of appellant are overruled and the motion for rehearing is denied.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Mildred CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 34482.
    Court of Criminal Appeals of Texas.
    April 18, 1962.

      No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Carol S. Vance, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving while intoxicated; the punishment, a fine of $200 and 20 days in jail.

Evidence adduced by the State upon the trial below shows the following; that around 1:10 A.M. in the morning of January 9, 1961, appellant was stopped for speeding by two patrolmen of the City of Houston Police Department; that upon observing appellant, they found she spoke in a “slurred” manner, hard to understand, “thick-tongued” type of speech; that when she got out of her automobile, she walked in a “staggering” fashion. One of the patrolmen further stated that he smelled alcohol on appellant’s breath and both testified that in their opinion she was at such time intoxicated.

A third police officer, who arrived at the scene some 30 to 35 minutes after the arrest, testified that he detected the odor of alcohol on appellant’s breath and based upon his observation of her, stated that in his opinion she was intoxicated.

Appellant, testifying as a witness in her own behalf, admitted consuming one drink around 11 P.M. the night before her arrest, but denied that she was intoxicated.

Wilford Barbeau, testifying in behalf of appellant, corroborated appellant’s testimony as to the one drink and further stated that in his opinion she was not intoxicated when he left her around midnight.

The jury resolved the disputed issue of intoxication against appellant and we find the evidence sufficient to sustain their verdict.

Appellant has filed no brief in this appeal.

There are no objections to the court’s charge, nor does the record contain any formal bills of exception.

An examination of the informal bill contained in the record reflects no reversible error therein.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    James PROCELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34394.
    Court of Criminal Appeals of Texas.
    April 18, 1962.
    Marion G. Holt, Nacogdoches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful sale of beer in a dry area; the punishment, 30 days in jail and a fine of $250.

The information alleges that the sale was made in Nacogdoches County, a dry area.

The state concedes that there is no proof that said County was a dry area, without which the conviction cannot stand. Hargiss v. State, Tex.Cr.App., 339 S.W.2d 538; Smith v. State, 159 Tex.Cr.R. 351, 264 S.W.2d 106; Brown v. State, 135 Tex.Cr.R. 3, 117 S.W.2d 107.

The state’s brief also points out that there is no proof of the sale except by a statement of the appellant before a grand jury.

The evidence being insufficient to sustain the conviction, the judgment is reversed and the cause remanded.


text:
    Robert J. HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 34453.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    Rex Emerson (By Court Appointment), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., life.

The indictment alleged the theft of $131.11 in money of the value of $131.11, a pistol, five rings, a watch, a necklace, and other articles described therein, alleged to be of the value of over $50, from Lillie Elizabeth Lee.

The theft was alleged to have been committed on or about April 25, 1961, and the indictment alleged that appellant had theretofore on March 9, 1949, been convicted of the offense of burglary, and that after such conviction he had committed the felony offense of breaking and entering a motor vehicle and was convicted of said offense on May 31, 1957.

The allegations as to the previous convictions were proved by the records of the Texas Department of Corrections; certified copies of the judgment, sentence and indictment in said causes, and testimony of an expert who took appellant’s fingerprints, compared them with the. prints which were part of the records introduced, and testified that all the prints were those of appellant.

Appellant was identified by Mrs. Lee’s friend Mrs. Burnham as the man who ran from Mrs. Lee’s home when they came from work, shortly before 11 o’clock P.M. Mrs. Lee identified the rings, pistol and other articles that were found in appellant’s possession shortly thereafter as property taken from her home without her consent, and testified that $130.91 was missing from a strongbox which had been broken into. $131 and some cents cash was found in appellant’s possession.

The evidence shows that the house in Houston where Mrs. Lee lived alone was entered by cutting a screen, and that property such as that described in the indictment was found missing which, aside from the money, was of the value of about $5000.00.

Police Officer E. R. Williams, responding to a dispatch describing a person seen leaving the residence of Mrs. Lee after it had been broken into, encountered appellant 3 or 4 blocks from said residence. Appellant ran but was overtaken. Officer Williams testified that he called him to the patrol car, and that appellant said: “You have got me. I am a bitch”; that he saw a .45 caliber pistol in his belt; that he and his partner searched appellant and took from him a large dinner ring (a platinum ring with diamond sets) and other rings, a watch, a gold religious cross on a gold chain, a bracelet and other items of jewelry.

Appellant did not testify, but called as a witness one Jack Broussard, a fellow prisoner in the same tank in 'the Harris County Jail. Broussard’s testimony was to the effect that he was the burglar who stole the property and ran from-the house. He testified that he put the stolen money and other property in a sack and hid it, and made his escape, and that when he went ’ back to pick it up it was gone.

Both Mrs. Lee and Mrs. Burnham testified that Broussard was not the man who ran from the house.

The jury resolved the issue against appellant.

Appellant’s first contention is that there is a fatal variance because the state failed to prove the taking of all of the items which were alleged to have been stolen. We find no merit in such contention. The allegation that $131.11 in money of the value of $131.11 was established by the evidence. The possession of a part of the stolen property being sufficient under the rule that from such possession, theft of the whole may be inferred. Mason v. State, 167 Tex.Cr.R. 516, 321 S.W.2d 591, and cases cited.

He next contends that the admission in evidence of three bottles labeled paregoric, taken from appellant’s possession at the time of his arrest, was error calling for reversal in that an extraneous offense was shown.

The record reveals that the officer testified without objection that he recovered some paregoric from the appellant, and there was no proof as to what the paregoric bottles introduced over objection contained. We see no error which would warrant reversal.

Appellant’s remaining claims for reversal relate to appellant’s arrest and search, which appears to us from the record to have been authorized. Jones v. State, Tex.Cr.App., 352 S.W.2d 270, and cases cited; Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Roy Rufus WHEAT, Appellant, v. The STATE of Texas, Appellee.
    No. 34488.
    Court of Criminal Appeals of Texas.
    April 18, 1962.
    Hattie E. Briscoe, San Antonio, for appellant.
    Charles J. Lieck, Jr., Criminal Dist. Atty., Edward E. DeWees, Jr., Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for operating a motor vehicle on a public highway while his operator’s license was suspended; the punishment, thirty days in jail.

The complaint alleged that the offense was committed on or about the 4th day of May, 1961. The information-based on the complaint alleged that the offense was committed on or about the 4th day of March, 1961.

It has been consistently held that a .variance between the complaint and the information as to the date when the offense was committed is fatal to the validity of the information. Harrison v. State, Tex.Cr.App., 297 S.W.2d 823; Murphy v. State, 149 Tex.Cr.App. 269, 193 S.W.2d 820; Bayless v. State, 136 Tex.Cr.R. 1, 123 S.W. 2d 354; McKinney v. State, Tex.Cr.App., 49 S.W. 376; 30 Tex.Jur.2d 551, Sec. 12; 1 Branch’s Ann.P.C. 456, Sec. 455.

For the defect pointed out in the information, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: POPE, Justice.

text:
    INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Henry G. CADY, Appellee.
    No. 13901.
    Court of Civil Appeals of Texas. San Antonio.
    March 28, 1962.

      Lewright, Dyer & Redford, Corpus Christi, John H. Flinn, Sinton, for appellant.
    John N. Barnhart, Houston, W. B. Moss, Sinton, for appellee.
   POPE, Justice.

This is a workman’s compensation case. Judgment was rendered in favor of Henry G. Cady for total and permanent disability. Though appellant’s points are restricted, the briefs meet upon two issues: (1) Are the findings of total and permanent disability supported by any evidence? (2) Are the findings so against the great weight of the evidence as to be manifestly unjust? In our opinion, the judgment must be reversed for the second reason.

Cady, an oil field roughneck, was injured in January, 1960, when he was struck by a heavy fishing tool which was swinging on a catline in the derrick of an oil rig. Cady sustained a fractured wrist and a back injury. Nine weeks later, Cady returned to work. The court correctly instructed the jury that

“By the term ‘TOTAL INCAPACITY,’ * * * is not implied an absolute inability to perform any kind of work but is meant an incapacity which disables the employee from performing the usual tasks of a workman to the extent that he can obtain and retain employment.”

We are aware of the rule that one may be totally and permanently incapacitated although he works and receives wages. Chief Justice Massey has collected the many cases which so hold. Trinity Universal Ins. Co. v. Scott, Tex.Civ.App., 342 S.W.2d 348, 350. Nevertheless, the proof after viewing all of it, can be so overwhelmingly against the finding that it is the court’s duty to order a new trial. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. While we do not say, as a matter of law, that Cady was not totally and permanently disabled; we do say that, as a matter of fact from all this record, he was not. We shall review the important facts.

Evidence which tends to support the verdict is that Cady before his injury was engaged in heavy oil field work, but since the accident he says he is unable to carry a hundred-pound sack, that his back hurts, he lost one job, he worked at several jobs only because he “had to be able to work,” meaning that he had to support his family, and that he was “run off” one job. His wife testified that he could not lift furniture, play with the children, mow the grass, or bend over. The most favorable testimony from plaintiff’s own medical witness, was that he had a muscle spasm, that the nerve roots on the right side of his back are damaged, that there is a tearing of the tissue, irritation of the root canal at the nerve root end, damage to the soft tissue; that Cady has a persistent back strain, and that there is probably some scar tissue which impinges on a nerve. Cady explained that he was able to work as a roughneck during this period only because his friends and fellow employees “carried” him and did the hard lifting.

The record, on the other hand, shows that Cady returned to work nine weeks after his injury. He testified that he has worked about as “steady since the accident” as he worked the year before. Pertinent to his capacity to perform the usual tasks of a workman and his capacity to obtain and retain employment is an almost uninterrupted history of successful employment as a roughneck, from the time he returned to work to the time of trial. He first worked a month for Burns Drilling Company and quit when the rig was shut down. He then worked for Storm Drilling Company for a month, until that rig was shut down. Then he worked for the same company in Galveston a week, and quit because he was lonesome for his family. He then worked for Billbow and Redding for six weeks and the “tool pusher run me off.” He then worked for Camden Drilling Company for two weeks and quit because he did not like Mr. Camden. He next worked for Bayou Drilling Company for a month, until the job played out. There was then an interval during which he could not find a rig working. He then worked for Storm Drilling Company again for a month, and worked on another rig for that Company at Hebbron-ville for eight or nine weeks. He then moved to another rig of the same Company, worked a week and quit because he disliked driving from Rockport to Aransas Pass. He took a job with Conroe Drilling Company for three weeks, until the job terminated.

Appellee worked as a shrimper for his father for another three weeks. While working as a roughneck during 1960, he would work fifty-six hours a week. During that year he obtained and held ten different jobs working as a roughneck. He was turned down for no job and held them until the work stopped, except in one instance when he was “run off,” and other times when he quit for personal reasons other than his health. During this period of time, he made application for unemployment compensation, swore that he was able to work, and drew three weeks compensation. In February, 1961, he passed a physical examination as a roughneck with Stewart and Gouger Drilling Company, went to work for that Company, and continuously worked fifty-six hours a week during the rest of February, March, April, and May, and took off for his trial, after which he stated he would return to work doing the same thing he had done before his injury. He drew the same wages after injury as he did before.

Cady has never received any treatment for his back. If he was totally incapacitated, his own physician was unwilling to say so. The most that he would say was that Cady suffered a fifty per cent partial permanent incapacity to do work involving heavy lifting. We do not view this case as one in which Cady worked under the spur of necessity despite his lack of capacity. During the interval between the injury and trial, Cady himself swore to his capacity to work as a roughneck, his doctor refused to support the claim of total and permanent incapacity, and his work record is not that of a person who is totally incapacitated.

Because the findings are against the great weight of the evidence, the judgment is reversed and the cause remanded for another trial.


author: DENTON, Chief Justice.

text:
    CITY OF AMARILLO et al. v. Ray C. LOVE d/b/a Love & Son Nursery.
    No. 7120.
    Court of Civil Appeals of Texas. Amarillo.
    March 26, 1962.
    Rehearing Denied April 23, 1962.

      Robert Lee Smith and Paul Funderburk, Amarillo, for appellants.
    A. Curtis Neal, Amarillo, Vandygriff, Presnal & Baker, Austin, for appellee.
   DENTON, Chief Justice.

This is an action instituted by the City of Amarillo and other local taxing authorities to recover from Love & Son Nursery certain ad valorem taxes for the years 1959 and 1960. Appellee admitted liability to the assessment of taxes on non-nursery stock, but challenges the legality and constitutionality of assessing its nursery stock. All material facts are undisputed as shown by the agreed stipulations of record. From a hearing before the court without a jury, judgment was entered in favor of the taxing units for the agreed amount of taxes assessed against the non-nursery stock, but denied recovery of taxes assessed against appellee’s nursery stock. The sole question to be decided is whether or not appellee’s nursery stock is exempt from taxation under Article 8, Section 19 of the Texas Constitution, Vernon’s Ann.St.

Among the stipulations it was agreed ap-pellee was engaged in a general retail (and some wholesale) nursery business for profit which entails a business where trees, shrubs, vines and rosebushes are grown and propagated .by transplanting for its customers. It was agreed “nursery stock” is defined to mean “shade, fruit and ornamental trees, shrubs, vines and rosebushes.” All such nursery stock was received by appellee from large nursery plantations or .farms located in areas with favorable climates and long growing periods. Prior to the time the nursery stock was removed from their plantations or farms they were in their “first growth stage.” When the plants are received by retail nurseries such as that operated by appellee they are replanted so as to preserve and continue the life of the plants. Appellee feeds, waters and otherwise cares for the nursery stock until sold to the ultimate consumer. During the time the stock is in the possession of appellee it is said to be in the “second growth stage.”

Article 8, Section 19 of the Constitution provides: “Farm products in the hands of the producer, and family supplies for home and farm use, are exempt from all taxation until otherwise directed by a two-thirds vote of all the members elect to both houses of the Legislature.” Article 4675, Revised Statutes of 1879 is the predecessor of the present Art. 7152, Vernon’s Ann.Civ.St. The former statute was adopted in February, 1879, some six or seven months prior to the adoption of Section 19, Article 8 of the Constitution. Subdivision 11 of Art. 4675 read as follows: ‘‘The stock of nurseries, growing or otherwise, in the hands of nurserymen shall be listed and assessed as merchandise.” This subdivision was brought forward unchanged in the recodifi-cation of the statute in 1911, 1914 and 1925. However, the 46th Legislature in 1937 amended Art. 7152 so as to omit Subdivision 11.

It is appellee’s contention that Subdivision 11 was in conflict with Sec. 19, Art 8 of the Constitution and that the legislature recognized this conflict by the elimination of Subdivision 11, and that the elimination of this subdivision brings the statute in accord with the constitutional exemption of nursery stock as farm products. This argument is based on the language used by the legislature in the Act of 1937 which had the effect of repealing Subdivision 11. The body of the Act did not contain a repealing clause, however, the Act amended the article by omitting Subdivision 11 by the insertion of Section 2 of the Act, which reads as follows :

“Sec. 2. The fact that Section 11 of said Article is in conflict with Article 8, Section 19 of the Constitution of the State of Texas and creates an unjust burden of taxation on the Nurserymen of the State of Texas, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

.. Article 8, Section.2 of the Constitution limits the power of the legislature to broaden tax .exemptions.. This section provides that, “ * * ⅜ all laws exempting property from taxation other than the property above mentioned shall be null and void.” It is therefore our conclusion the legislative intent as expressed in Section 2 of Art. 7152 is not controlling in determining the basic question here. Where the legislature has, by specific language, declared certain types of property to be in the exempt class, our courts have held such provisions are unconstitutional where they broaden the constitutional exemptions. Texas Turnpike Co. v. Dallas County, 153 Tex. 474, 271 S.W. 2d 400; Dickison v. Woodmen of the World Life Ins. Soc. (Tex.Civ.App.) 280 S.W.2d 315 (writ refused). The question before the Supreme Court in the Texas Turnpike case, supra, was whether or not the property acquired by the Turnpike Company was “publicly owned” so as to be exempt from taxation under Art. 11, Sec. 9 of the Constitution. In the legislative act which chartered the Turnpike Company, a section of the act provides that: “The equitable, beneficial and superior title to the property * * * shall be vested at all times in the State of Texas and shall constitute public property used for public purposes, * * Vernon’s Ann.Civ.St. art. 6674v, § 18. In holding that the property of the Turnpike Company was not “publicly owned” and therefore subject to being taxed, the court used the following language :

“Public ownership, for tax-exemption purposes, must grow out of the facts; it is a legal status, based on facts, that may not be created or conferred by; mere legislative, or even contractual, declaration. If the state does not in fact own the taxable title to the property, neither the Legislature by statute( ' nor the petitioners and the Authority by, contract, may make the state the owner . thereof by simply saying that it is the owner.” . .

Here we have the legislature deleting a section of a rendition statute which had specifically provided for the taxing of nursery stock. In our view the question before us must he decided under Art. 8, Sec. 19 of the Constitution. We think this is true whether or not Subdivision 11 of Art. 7152 had been eliminated. Neither the language of the now omitted Subsection 11 or of Sec. 2 of the article which omitted Subsection 11 is decisive here. In the final analysis it is incumbent upon us to apply the facts of the case to the appropriate provision of the Constitution to determine whether or not nursery stock is exempt from taxation.

It is well settled that exemptions from taxation are not favored and should be strictly construed. City of Longview v. Markham-McRee Memorial Hospital, 137 Tex. 178, 152 S.W.2d 1112; Hedgecroft v. City of Houston, 150 Tex. 654, 244 S.W.2d 632; Kirby Lbr. Corp. v. Hardin Independent Sch. Dist. (Tex.Civ.App.) 351 S.W.2d 310 (refused n. r. e.).

In our opinion the nursery stock in question does not come under the constitutional exemption of “farm products in the hands of the producer.” In order to come under the exemption, appellee’s nursery stock must meet two requirements: first, it must be “farm products” and if so, it must be found that appellee is the “producer.” Under the facts and circumstances before us, we do not think the nursery stock meets these requirements. Article 8, Sec. 19 of the Constitution must be construed in accordance with the general rules of construction. Language of the Constitution must be presumed to have been carefully selected and the words used are to be interpreted as the people understand them. Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808; Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147; State v. Clements (Tex.Civ.App.) 319 S.W.2d 450 (writ refused).

In our view, nursery stock here involved is not included in the constitutional exemption of “farm products.” The trees and bushes were started by grafting and budding on large nursery farms and transferred to appellee who conducted its retail and wholesale business on several city lots within the City of Amarillo. Appellee is not a farmer but a merchant conducting a retail, and to some extent wholesale, business. This nurs-sery stock has all of the characteristics of a stock of merchandise as that term is ordinarily used among both business men and the general public. Appellee’s care and treatment of this nursery stock during its “second growth stage” was incidental to its selling the stock to the ultimate consumer. It would be a strained construction of the applicable constitutional language to say the nursery stock in the hands of appellee is “farm products.” Although this exact question has not been passed on by the courts of this state, courts in other jurisdictions have uniformly held nursery stock to be taxable under similar constitutional and statutory provisions. See Roehrs Co. v. Division of Tax Appeals, 16 N.J. 493, 109 A.2d 611; Miethke v. Pierce County, 173 Wash. 381, 23 P.2d 405; Swain Nelson & Sons Co. v. Dept. of Finance, 365 Ill. 401, 6 N.E.2d 633.

In determining whether or not the instant nursery stock meets the second requirement, to-wit: whether or not appellee is the “producer,” we are to consider its meaning as it is generally understood. Webster’s New International Dictionary, Second Edition, defines “producer” as one who produces, brings forward or generates. At the time appellee acquired the nursery stock from its suppliers it was in being and in its “first growth stage.” In our opinion this stock was produced by the farms supplying them to appellee. We therefore conclude appellee does not meet the requirement of being a “producer,” as set out in the applicable constitutional provision.

The judgment of the trial court is therefore reversed and remanded to the trial court for further proceedings in accordance with this opinion.


author: DAVIS, Justice.

text:
    Howard M. RODNEY, Appellant, v. Dolores EDWARDS, a widow, Appellee.
    No. 7372.
    Court of Civil Appeals of Texas. Texarkana.
    April 3, 1962.
    Rehearing Denied April 24, 1962.
    Herminie Hanson and Louise C. Rowen (of Stewart, Burgess, Morris & Hanson), Galveston, for appellant.
    Henry Flagg, Galveston, for appellee.
   DAVIS, Justice.

This was a suit in trespass to try title by Dolores Edwards, a widow, against Howard M. Rodney. The suit was for a small lot in the City of Galveston, Texas. The trial court, without a jury, rendered judgment for the appellee. The appellant has perfected his appeal and brings forward six points of error. , . •

Prince Edwards, deceased, husband of the appellee, was by a prior marriage the husband of Rebecca Edwards. Rebecca Edwards died in 1941. Rebecca Edwards, by a previous marriage, was the mother of the appellant.

Prince Edwards and wife, Rebecca Edwards, acquired the property from Isaac O’Donald on September 19, 1921.

Prince Edwards married Dolores Williams in April of 1944. On May 5, 1944, Prince Edwards conveyed the property involved to the appellant. On May 6, 1944, the appellant conveyed the property to Prince Edwards. Prince Edwards died July 19, 1954. In 1953, while he was in the hospital, the appellant actually put these people on notice of his claim to the property by going to the hospital and trying to get Prince Edwards to make him a deed.

The appellant filed a plea of not guilty. He attempted to prove that he had a common law marriage prior to May 6, 1944. The record shows that he was actually ceremoniously married to his wife on July 23, 1945. The property was not community property of the appellant and his wife at the time it was conveyed to him by Prince Edwards in 1944.

The appellant attempted to claim the land under the ten year statute of limitations. According to his contention, he went into possession of the land in 1941. He did not put the appellee on notice that he was claiming title to the property until 1953. Appellant never did show any act of ownership, adverse or hostile claim, or give any notice contrary to the provisions of the deed that he executed on May 6, 1944. Lang, Land Titles, 5 Texas Practice 404-405-406, Secs. 871and 872; Killough et al. v. Hinds et ux., 161 Tex. 178, 338 S.W.2d 707.

,-The judgment of the trial court is affirmed.


author: RICHARDS, Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. Frank McCLAIN et al., Appellees.
    No. 10948.
    Court of Civil Appeals of Texas. Austin.
    April 4, 1962.
    Will Wilson, Atty. Gen., Frank J. Maloney, Jr., Leon F. Peselc and Marvin Sentell, Asst. Attys. Gen., Austin, for appellants.
    Lanham & Hatch ell, Austin, for appel-lees.
   RICHARDS, Justice.

Parrish Brothers and Frank McClain, appellees, brought suit against the Railroad Commission of Texas, appellant, to set aside two orders of the Commission, dated April 12, 1961, correcting Specialized Motor Carrier Certificates issued to Parrish Brothers and Frank McClain by replacing an “in bulk” restriction in the authority given under the certificates to haul cottonseed. The Trial Court rendered judgment for appellees holding that the orders of the Commission constituted an attempt to revoke a portion of the operating rights authorized in the Specialized Motor Carrier Certificates and that such orders were illegal and void. In addition, the Trial Court granted a permanent injunction against the ‘Railroad Commission from attempting to enforce the provisions of the invalid orders, from which judgment the Commission has perfected this appeal.

The Commission’s appeal is based upon two points of error, the first being that the Trial Court erred in holding that the Commission’s orders of April 12, 1961 revoked a portion of the operating rights authorized in the Specialized Motor Carrier Certificates issued to appellees, and second, that the Trial Court erred in holding that the Commission’s orders correcting the certificates in controversy by replacing the “in bulk” restriction on cottonseed were void and invalid.

On August 22, 1952 the Commission issued Specialized Motor Carrier Certificate No. 7419 granting authority to appellee Parrish to transport in addition to other commodities, cottonseed in bulk from all points within a 100-mile radius of Lockhart, Texas to all points within a 400-mile radius of Lockhart, Texas and vice versa. On November 19, 1952 Parrish filed with the Commission an application to amend Certificate Ño. 7419, seeking to amend the authority granted in the original certificate to include various additional commodities, to increase the radius for service of the commodities previously authorized and to transport “Cottonseed from all points within a 100-mile radius of Lockhart, Texas to all points in Texas and vice versa.”

Required notice of hearing on the amended application was given and hearing was held by the Commission at Austin, Texas March 10, 1953. On March 20, 1953 the Commission issued its order amending Certificate No. 7419 granting Parrish’s application in all respects including his right to transport cottonseed from all points within a 100-mile radius of Lockhart, Texas to all points in Texas and vice versa without restriction. In its order the Commission found as a fact that the type of service sought in the application was not rendered by regular route common carrier motor carriers and the rail lines and that the existing specialized motor carrier service was inadequate since it was not available when needed and that trucks and facilities are not available when needed.

Certificate No. 7419 as amended was issued by the Commission to Parrish on March 24, 1953. Parrish continued to transport cottonseed both in bulk and in bags in accordance with his amended certificate without any question being raised by the Commission under Sec. 14(a), Art. 911b, Vernon’s Civil Statutes, until 1959, at which time a rate inspector' for the Commission advised Parrish that he did not have authority to haul cottonseed in bags. ■ There had been no rates prescribed by the Commission for movement of cottonseed in bags although there were rates for movement of cottonseed in bulk.

After the question had been' raised .by the Commission’s rate inspector, Parrish came to Austin, conferred 'with Guy D. Huddleston, Chief Rate Inspector -for the Commission, and one of the Commission’s examiners, at which time Parrish’s certificate file was reviewed and Huddleston wrote a letter on December 7, 19.59 upon the Commission’s stationery, stating that the amended certificate did not restrict the transportation of cottonseed in bágs'and since there were no rates prescribed ,for cottonseed in bags transported undér the certificate, it was agreeable to all- parties (Parrish and the Commission) to charge the rate prescribed on cottonseed in bulk and in truck load lots.

On December 22, 1959 Huddleston wrote to Olin Ward, the Commission Rate Inspector, who originally raised the question with Parrish, stating that Parrish had conferred with him about the amended certificate and that in his opinion Parrish could transport cottonseed in any manner he saw fit but that he did not think the application was properly drawn or the certificaté properly issued “but until it is contested in the Court House, we are left with no other option but to accept it as it now stands,” and that the rates to be charged had been satisfactorily settled with Parrish.

On September 8, 1953 the Commission issued Specialized Motor Carrier Certificate No. 9325 to Frank McClain, which, in addition to other commodities, authorized McClain to transport “cottonseed in bulk in truck loads from any point in Caldwell County, Texas to any point within a 50-mile radius of Caldwell County, Texas and vice versa.” On August 2, 1956 McClain filed with the Commission his application to amend Certificate No. 9325 seeking to increase the radius of service for the commodities previously authorized and to transport “cottonseed and grain in truck loads from any point in Caldwell County, Texas to any point in Texas and vice versa.”

Notice of hearing on the amended application was given and hearing was held by the Commission at Austin, Texas on August 28, 1956. On September 21, 1956 the Commission issued its order amending Certificate No. 9325 granting McClain’s application in all respects including his right to transport cottonseed and grain in truck loads from any point in Caldwell County, Texas to any point in Texas and vice versa without restriction. In its order the Commission made fact findings identical with the facts found in granting Parrish’s application to amend Certificate No. 7419 and the amended certificate was issued to McClain on October 4, 1956.

On December 20, 1960 the Commission without notice or hearing to Parrish and McClain issued orders revoking their rights to transport any cottonseed other than “in bulk”. The order relating to Parrish’s certificate recited as follows:

“A review of the files and records reflects that the authority to transport cottonseed with no restriction as to the manner in which it is to be transported was in error in not writing the authority as cottonseed in bulk.”

and to McClain’s certificate..

. • “It is further revealed from a review of the certificate file that in the preparation of the order and certificate granting the expanded area in the transportation of Cottonseed and Grain that an error was committed in that those commodities should have been in bulk in truck-load quantities.”

Both Parrish and McClain filed exceptions to the orders of December 20, 1960, which were issued without notice and hearing. The Commission then published notice that on its own motion it would have a hearing to determine whether the certificates should be reformed as originally attempted to be reformed by its order of December 20, 1960.

Hearing was held before one of the Commission’s examiners and on April 12, 1961 the Commission issued its order on the Parrish certificate which is, in part, as follows :

“THE COMMISSION FURTHER FINDS that there was no intention on its part to issue such authority with regard to Cottonseed in bags, and that it was in error in issuing the authority with regard to Cottonseed unrestricted, when the authority issues should have been ‘Cottonseed in bulk’.
“THE COMMISSION FURTHER FINDS from its records that there have been other transactions involving certificate 7419 up to December 20, 1960, including the consolidation of this certificate into SMC certificate 9795, when the Commission issued its order correcting SMC certificate 9795 so that such authority would read ‘Cottonseed in bulk in truck load lots from all points within a one hundred (100) mile radius of Lockhart to all points in Texas and vice versa’. The Commission further finds, in reviewing its files and records, that, in compliance with the statutes, it did not intend to issue authority to transport Cottonseed in bags, nor to authorize the transportation of Cottonseed in any other fashion than in bulk in' truck load quantities, and that such equipment was specialized in nature in “ that it met all the requirements of the statutes and the rules and regulations of the Commission in requiring specialized equipment for the loading, unloading and transportation of Cottonseed in bulk.
“THE COMMISSION FURTHER FINDS that it was in error in issuing its order dated December 20,1960, correcting SMC certificate 9795 without issuing notice and setting same down for hearing. The Commission has therefore issued notice and set this matter for hearing, and hearing has been held thereon and the Commission is of the opinion that all requirements have been met in correcting certificate 9795, and does reaffirm its action taken in its order dated December 20, 1960. * * * (Italics supplied.)

On the same date the Commission issued its order on the McClain certificate which is, in part, as follows:

“THE COMMISSION FURTHER FINDS, after reviewing its files and records, that when the authority to transport Cottonseed and Grain in truck loads was issued as a result of the amendment, nowhere in the application to amend did the applicant allege or request the authority to transport Cottonseed and Grain in sacks or bags. The Commission was in error in issuing the authority to transport Cottonseed and Grain unrestricted and in truck loads, because it is known throughout the industry that the transportation of Cottonseed and Grain in sacks or bags does not require any specialized equipment for the loading, unloading and transportation thereof.
“THE COMMISSION FURTHER FINDS from its files and records that SMC certificate 9325 was corrected by order of the Commission dated December 20, 1960, and certificate dated December 21,’ 1960, wherein the authority to transport Cottonseed and Grain was restricted to the transportation of Cottonseed and Grain in bulk in truck loads from any point in Caldwell County, Texas, to any point in Texas, and vice versa.
“THE COMMISSION FURTHER FINDS that this order correcting the Cottonseed and Grain authority was corrected withoxit notice or hearing, and the Commission has now issued notice and conducted a hearing in this matter and does reaffirm its order of December 20, 1960, and does correct its order dated September 12, 1956, and certificate dated October 4, 1956, so that henceforth as to the commodities Cottonseed and Grain, the certificate shall authorize the transportation of Cottonseed and Grain in bulk in truck loads from any point in Caldwell County, Texas, to any point in Texas and vice versa. * * * ” (Italics supplied.)

At the hearing on April 28, 1961 the Examiner stated with reference to the so-called correction orders dated December 20, 1960, which were entered without notice or hearing to either of the appellees, that:

“We want to try to put this term (in bulk) in there, and if you all are obj ecting to it we will try to make it legal by setting it down for hearing. It looks like we are going to have to go back and cancel this out and start from scratch and come at it in another way, but I don’t know that we can proceed any differently.” (Parenthetical matter supplied.)

That the Commission took cognizance of the invalidity of the orders of December 20, 1960 is evidenced by the italicized parts of the orders of April 12, 1961, supra.

The orders of 1953 and 1956 granting Parrish and McClain authority to transport cottonseed without restriction had become final in 1960 and the Commission had lost jurisdiction to review its orders, Sproles Motor Freight Line v. Smith, Tex.Civ.App., 130 S.W.2d 1087, error ref., and the Commission could not review or rehear its final orders. Smith v. Wald Transfer, Tex.Civ.App., 97 S.W.2d 991, error dism.

But the Commission contends that it has the power to correct its order which contain clerical errors or omissions due to inadvertence or mistake at any time by the entry of a nunc pro tunc order so as to make them correctly speak the truth as to the omitted facts, citing Railroad Commission of Texas v. Jackson, Tex.Civ.App., 315 S.W.2d 193, error ref., N.R.E., and American Trucking Ass’n v. Frisco, 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172, in support of its contention. Administrative agencies, like the Courts, have power to enter nunc pro tunc orders where it can be seen by reference to a record what was intended to be entered but which was omitted by inadvertence or mistake, upon satisfactory proof of its rendition provided that no intervening rights will be prejudiced. Frankfort Kentucky Natural Gas Co. v. City of Frankfort, 276 Ky. 199, 123 S.W.2d 270, 272.

At the hearing before the Trial Court no evidence, oral or documentary, was offered by the Commission why it believed in 1960 that the errors in the orders were typographical errors or errors of omission made in entering the orders on the applications to amend the certificates in 1953 and 1956.

It is also apparent from the record that at the hearing before the Railroad Commission on February 28, 1961 no evidence concerning any file, transcript, record or order was offered or made available for the purpose of showing why the Commission believed that an error or omission had been made in the entry of the amended orders. On the contrary, the Examiner stated that the Commission’s reporter who appeared at each of the hearings on appellees’ application to amend their certificates stated that his notes had not been transcribed and had been destroyed. As a result, the Commission had nothing before it when it entered its void orders of December 20, 1960, or on April 12, 1961' which could justify it in reaching the conclusion that the words “in bulk” had been omitted through error, omission or mistake in entering its amended orders on March 20, 1953 and September 12, 1956.

If the members of the Commission were relying upon their memory in making the factual findings set forth in their orders-entered April 12, 1961 as the basis for holding that the words “in bulk” had been omitted from the certificates through inadvertence, they should have recalled also that at the hearing on the McClain application to amend his certificate Parrish appeared in person and contested the application.

The factual situation in the instant case is entirely different from the factual situations in Railroad Commission v. Jackson, supra, and American Trucking Ass’n v. Frisco, supra. In the Jackson case it was. apparent from the record before the Commission that a restriction agreed upon by the applicant at a hearing on his application which restriction was a matter of record,, had been omitted from subsequently amended and consolidated certificates.

In American Trucking Ass’n v. Frisco-,, supra, the Interstate Commerce Commission had failed to restrict motor carrier service authority when issuing the actual certificate although the recommended report of the Hearing Examiner stated that it should be-so restricted and the Commission had ordered that the authority granted be restricted.. The omission being a ministerial error apparent from the record, the Court upheld the power of the Commission to correct the authority by inserting the restriction after-notice and hearing. Here there was no. evidence before the Commission or the Trial Court of any prior contrary intention on the part of the Commission to restrict the authority granted in the amended certificates issued in 1953 and 1956.

The Commission also contends that it was without power or authority to issue an unrestricted authority to either of ap-pellees to transport cottonseed in sacks or bags or in any fashion than in hulk truck load quantities because the transportation of cottonseed in sacks or bags does not require any specialized equipment for the loading, unloading and transportation thereof.

In Sec. l(i), Art. 911b, V.C.S. “* * * the term ‘specialized motor carrier’ as used [herein] shall include those carriers who engage or desire to engage exclusively in the transportation of * * * property requiring specialized equipment as that term is hereinafter defined * *

The same section provides that the term “property requiring specialized equipment” is limited among other items to “commodities which by reason of length, width, weight, height, size or other physical characteristics require the use of special devices, facilities, or equipment for their loading, unloading, and transportation.” There is no statutory requirement that in the case of a commodity such as cottonseed in bags which by reason of its weight, size, or other physical characteristics requires the use of special devices and facilities or equipment for its loading and unloading, such equipment be attached to or made a part of the motor vehicle used in its transportation.

The uncontradicted evidence before the Trial Court showed that the loading and unloading of cottonseed in sacks was generally performed by the shipper and consignee by special devices and that cottonseed in bulk is also loaded by special devices which are not attached to or form a part of the motor vehicle used in transporting it and that different types of specialized equipment were used by the appellees in transporting cottonseed both in bulk and in bags.

When the definitions of terms contained in Sec. 1 (i), Art. 911b, supra, are applied to the uncontradicted testimony there was sufficient evidence before the Trial Court, to find as a fact that the unrestricted authority granted by the Commission to transport cottonseed .either in bulk or in bags issued under the Commission’s orders entered March 30, 1953 and September 12, 1956 to appellees Parrish and McClain respectively, required specialized equipment and did not violate the provisions governing the issuance of certificates to specialized motor carriers under Art. 911b, V.C.S.

Both of appellant’s points of error are overruled and the judgment of the Trial Court is in all things affirmed.


author: ARCHER, Chief Justice. RICHARDS, Justice

text:
    John S. LEONARD, Jr., Appellant, v. Charles B. MAXWELL et ux., Appellees.
    No. 10934.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1962.
    Rehearing Denied March 14, 1962.

      Long, Maroney & Aronson, Austin, for appellant.
    Warren P. McKenney, Byrd & Davis, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order of the District Court overruling a plea of privilege.

Appellees brought this suit in Travis County on February 13, 1961 against appellant for damages sustained by plaintiff Violet Maxwell as a result of being struck by an automobile driven by appellant.

The petition alleged several acts of negligence, such as that defendant was operating his automobile at a greater rate of speed than a person of ordinary care and prudence would have done, failure to sound his horn, failure to keep a proper lookout, failure to apply his brakes and failure to turn his automobile, all of such acts and omissions were a proximate cause of the injuries sustained by Violet Maxwell.

On March 31, 1961, the defendant filed his plea of privilege alleging that he is a resident of Dallas County, Texas, together with his original answer subject to such plea.

The defendants filed their controverting plea of privilege in which it was alleged that there was an exception to exclusive venue existing in the case and that the allegations in the original petition are true and correct and that plaintiffs were entitled to maintain their suit in Travis County. This pleading was signed by one of plaintiffs’ attorneys, but was not sworn to.

On May 29, 1961 appellant filed his motion to strike the controverting plea because it was not verified, and to sustain the plea of privilege and to transfer the cause. Later on the same day plaintiffs filed their First Amended Controverting Plea of Privilege reciting that it was filed with leave of Court. This pleading was sworn to by •One of appellees’ attorneys. ■.. ;

The motion to strike was overruled on June 8, 1961, after a hearing at which one of plaintiffs’ attorneys stated the circumstances surrounding the filing of the first pleading and the Court stated that he had always followed the policy of letting the parties amend prior to going to trial unless it would prejudice the position of some party and there was no abuse of discretion shown.

The prime point at issue in this cause is the right of plaintiffs to amend and file a controverting plea duly verified.

We believe that the plaintiffs had the right granted by the Trial Court to file their amended controverting plea under the same rules as other pleadings and when amended, it related back to and superseded the original controverting plea. Rule 63, Texas Rules of Civil Procedure; Texas Employers Ins. Ass’n v. Campion, Tex.Civ.App., 236 S.W.2d 193; Gulf Production Co. v. Granger, 122 Tex. 303, 55 S.W.2d 531.

Appellant appears to take the position that when appellees failed to properly verify their controverting plea that the Trial Court lost jurisdiction over the case and could only order it transferred.

We do not believe that this is the rule or law. Jurisdiction is that to enter a judgment in the main suit and not to dispose of a plea of privilege on the merits. This distinction is pointed out in Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, wherein the Court said:

“ * * * but jurisdiction of the plea of privilege, and of the subject-matter of such plea, is quite a different thing. The statute does not say that the failure of the plaintiff to file a controverting plea within the time there prescribed shall have effect to divest the court of jurisdiction of the plea of privilege, or of its subject-matter. * * * It thus appears that jurisdiction of the subject-matter of the plea remains in the court until the court, by affirmative action, surrenders that jurisdiction. Incident to jurisdiction of the subject-matter of the plea, the court has authority to allow, for good cause shown, a contest of said plea, even though the contest be filed after the lapse of time prescribed in article 2007.”

Appellant cites Continental Fire & Casualty Ins. Corp. v. Whitlock, Tex.Civ.App., 210 S.W.2d 261, as supporting his theory that a defective affidavit was wholly insufficient.

In that case the Court did reverse the Trial Court’s holding overruling a plea of privilege, but remanded the case to the Trial Court. On a subsequent trial the plea of privilege was overruled and on the second appeal the defendant contended that because the original plea was not properly sworn to that it was void and constituted no basis for an amendment. This contention was overruled and the Court held that the amendment was under the same rules as other pleadings.

We believe the Court correctly overruled the defendant’s special exceptions to plaintiffs’ controverting plea. The Court, at defendant’s request made findings of facts that defendant struck Violet Maxwell, causing painful injuries; that defendant was operating his automobile at a greater rate of speed than a person of ordinary care would have operated it; that defendant failed to sound his horn, failed to keep a proper lookout, failed to apply his brakes and failed to turn his automobile, and that all of which negligent acts and omissions were a proximate cause of the injuries. The Court concluded that the defendant committed acts and omissions of negligence in Travis County, Texas, which were a proximate cause of plaintiffs’ damages.

The defendant did not contest the fact findings and the conclusions of law and such are therefore admitted.

A. J. Rife Construction Co. v. Brans, Tex.Civ.App., 298 S.W.2d 254, error ref., N.R.E.

The special exceptions were directed to the failure of plaintiffs to adopt or incorporate the original petition to allege facts necessary to establish venue.

The controverting pleas used the following language:

“Plaintiffs allege that the allegations contained in their original petition on file herein are true and correct, and that plaintiffs are entitled to bring this suit in Travis County against the defendant John S. Leonard, Jr., under Sec. 9a of Art. 1995, Revised Civil Statutes of Texas.”

This is an approved way of pleading the grounds relied on in controverting a plea of privilege. Duncan v. Denton County, Tex.Civ.App., 133 S.W.2d 197, error dism. Rule 58, T.R.C.P.

The orders and judgment of the Trial Court are affirmed.

Affirmed.

RICHARDS, Justice

(dissenting).

Being unable to agree with either the legal conclusions or the result of the majority opinion, I respectfully dissent.

Appellees brought suit against appellant for damages sustained by plaintiff Violet Maxwell as a result of being hit by an automobile driven by appellant. On March 31, 1961, appellant timely filed his plea of privilege in proper form in which he alleged that he was a resident of Dallas County, Texas and on April 4, 1961 appel-lees filed their plea controverting appellant’s plea of privilege stating that there existed an exception to exclusive venue, “that the allegations contained in their Original Petition on file herein are true and correct” and that they are entitled to bring their suit in Travis County against appellant under Section 9a, Art. 1995, Vernon’s Ann.Civ.St., which controverted plea was signed by Tom H. Davis as attorney for appellant but was not sworn to as required by Rule 86, Texas Rules of Civil •Procedure.

On May 29, 1961 appellant filed his motion to strike the controverting plea because it was not verified and to sustain the plea of privilege and transfer the cause and on the same day appellees filed their first amended controverting plea to plea of privilege “with leave of Court first obtained” accompanied by an affidavit by one of appellees’ attorneys in which affiant stated “that he has read the foregoing Plaintiffs’ First Amended Plea Controverting Plea of Privilege * * * and knows the contents thereof, and that such instrument and every statement, allegation and denial thereof are true and correct.” Appellant then filed his motion to strike appellees’ plea controverting plea of privilege on the ground that it did not conform with Rule 86 being fatally defective and therefore was not filed within the time required by the rule, to which motion appellees filed an answer consisting of a special exception, both pleadings being filed on May 29, 1961.

On June 8, 1961 appellees filed their plea controverting the plea of privilege of appellant, containing the same allegations as to the existence of an exception to exclusive venue and the reference to the allegations of their original petition which are identical with the allegations contained in the original unsworn plea controverting the plea of privilege filed March 4, 1961 and the first amended plea controverting plea of privilege together with an affidavit by one of appellees’ attorneys which is identical with the affidavit to the first amended plea controverting plea of privilege. On the same day the Trial Court heard a motion by appellees to file a plea controverting appellant’s plea of privilege and appellant’s motion to strike such controverting plea and sustain the plea of privilege. Appel-lees’ motion to file a plea controverting appellant’s plea of privilege is as follows:

“COME NOW Plaintiffs in the above styled and numbered cause and request the Court to grant leave to the Plaintiffs to file a controverting plea and affidavit to the Plea of Privilege at this time, which is after the ten (10) days allowed by the rules, for good cause. Plaintiffs would show that the original controverting plea was prepared by their attorney, Tom H. Davis, at the time the original plea was prepared it was contemplated that it would be sworn to by Mr. Warren McKen-ney, who was Plaintiffs’ original attorney. At the time it was prepared Mr. Davis had a new secretary and when the plea was first prepared he noticed that it did not have the affidavit attached to it. When this was called to the secretary’s attention, she stated that she was going to prepare the affidavit on a separate sheet of paper and attach it to the plea and send it to Mr. McKenney for him to swear to and then file the controverting plea. After giving those instructions it did not come to Mr. Davis’ attention that those instructions were not carried out, or that the verification was left off of the original controverting plea as it was filed until he received the motion of the Defendant to strike, at which time an amended controverting plea was immediately filed.
“WHEREFORE, Plaintiffs pray that they be allowed for good cause to at this time file in proper form a controverting plea to Defendant’s Plea of Privilege.”

Appellant then filed his answer to appel-lees’ plea controverting plea of privilege as filed June 8, 1961 and motion to strike same and sustain appellant’s plea of privilege, which is in part as follows:

“1. Defendant specially excepts to the allegation contained in Paragraph 2 of Plaintiffs’ Plea Controverting Plea of Privilege, such instrument being filed in this Court on the 8th day of June, 1961, such allegation reading as follows: ‘Plaintiffs allege that the allegations contained in their Original Petition on file herein are true and correct, * * * ’ in that such allegation does not specifically allege facts necessary to establish venue in this Court, and that said allegation is not legally sufficient to adopt and/or incorporate the allegations contained in Plaintiffs’ Original Petition in aid of said Plea Controverting Plea of Privilege filed herein on the 8th day of June, 1961, nor does the allegation referred to adopt and/or incorporate either specifically or by reference thereto the allegation contained in Plaintiffs’ Original Petition in aid of Plaintiffs’ Plea Controverting Plea of Privilege. That the failure of Plaintiffs to adopt and/or incorporate the allegation of Plaintiffs’ Original Petition prohibits Plaintiffs from introducing any evidence in aid of facts necessary to sustain venue in Travis County, Texas. That in view of Plaintiffs’ failure as above set out this Court does not have jurisdiction herein except for the purpose of transferring this cause. Of which special exception, Defendant prays judgment of this Court or in the alternative Defendant moves the Court to strike Plaintiffs’ Plea Controverting Plea of Privilege filed herein on the 8th day of June, 1961, and transfer this cause to the District Court of Dallas County, Texas.
“2. Defendant specially excepts to the verification contained in Plaintiffs’ Plea Controverting Plea of Privilege, such instrument being filed in this Court on the 8th day of June, 1961, such allegation reading as follows: ‘ * * * and that he has .read the foregoing Plaintiffs’ Plea Controverting Plea of Privilege in Cause No. 121,002, Charles B. and Violet Maxwell v. John S. Leonard, Jr., in the 98th District Court of Travis County, Texas, and knows the contents thereof, and that such instrument and every statement, allegation and denial thereof are true and correct.’ in that such verification is not a clear and unequivocal swearing to Plaintiffs’ Original Petition as such Original Petition was not either adopted and/or incorporated into the body of Plaintiffs’ Plea Controverting Plea of Privilege as filed herein on the 8th day of June, 1961, and that this is a mere verification of the allegations as set out in Plaintiffs’ Plea Controverting Plea of Privilege, and does not swear or verify as to the accuracy of Plaintiffs’ Original Petition. Of which special exception, Defendant prays judgment of this Court or in the alternative Defendant moves the Court to strike Plaintiffs’ Plea Controverting Plea of Privilege filed herein on the 8th day of June, 1961, and transfer this cause to the District Court of Dallas County, Texas.
“Wherefore, Defendant moves the Court to sustain his special exceptions to Plaintiffs’ Plea Controverting Plea of Privilege as filed June 8, 1961, and moves the Court to strike said Plea Controverting Plea of Privilege, sustain Defendant’s Plea of Privilege, and order this cause transferred to the District Court of Dallas County, Texas.”

The Trial Court then granted appellees’ motion to file their controverting plea to appellant’s plea of privilege after the ten days provided by Rule 86, for good cause shown, overruled appellant’s motion to strike appellees’ controverting plea and sustain appellant’s plea of privilege and overruled appellant’s plea of privilege. At the hearing of the motion to strike the controverting plea to plea of privilege filed on June 8, 1961, the Court stated as follows:

“I am going to grant plaintiffs’ motion to file late his controverting plea, and order it written up and filed today, and in the light of my action on that motion I will overrule the defendant’s motion to strike the controverting plea. It”does not change the-position of the parties at any time. I have always followed the policy of letting parties amend prior to going to trial unless it prejudices the position of some party.”

It is clear from the statement of the Trial Court as well as the various pleadings contained in the transcript of the record that appellees’ original controverting affidavit or plea to appellant’s plea of privilege was not verified as required by Rule 86, T.R.C.P., which defect was properly called to the Court’s attention by special exception in compliance with Rule 90, T.R.C.P., whereupon on May 29, 1961 appellees filed their first amended plea controverting plea of privilege properly verified but without leave of Court. On the hearing before the Trial Court on June 8, 1961 appellees filed a motion for leave to file a controverting plea to the plea of privilege, which motion was granted. Appellees then filed their controverting plea to plea of privilege thereby abandoning their first amended controverting plea to plea of privilege which was filed on May 29, 1961. Although the sufficiency of the appellees’ controverting plea to plea of privilege filed June 8, 1961 was properly excepted to, the Court overruled the exceptions and taking cognizance of the controverting plea which in the opinion of the writer was fatally defective, overruled the plea of privilege on the basis of the facts presumably alleged in appellees’ controverting plea filed June 8, 1961

Inasmuch as the controverting plea filed by appellees on May 4, 1961 was not verified by affidavit as required by Rule 86, T.R.C.P. it was of no effect and a nullity and therefore could not be amended. Brashears v. Strawn National Bank, Tex.Civ.App., 57 S.W.2d 177, no writ history; McDonald, Texas Civil Practice, Vol. 1, Sec. 4.50, p. 451 and 43-B Tex.Jur. Sec. 140, p. 348.

But assuming arguendo that such defective controverting plea could be amended by a proper verification with leave of Court granted for good cause shown after the expiration of the ten day period, nevertheless the controverting plea was fatally defective because it did not specifically refer to and adopt the allegations of the original petition thereby alleging sufficient facts as venue facts upon which the alleged cause of action was sought to be maintained. To meet the requirements of the rule, it is necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof and thereby swore to the essential facts embodied in the entire petition. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622.

Although it was stated in the controverting plea that “Plaintiffs alleged that the allegations contained in their original petition on file herein are true and correct * * * ” the affidavit of one of plaintiffs’ attorneys attached thereto merely stated that “he has read the foregoing plaintiffs’ plea controverting plea of privilege * * * and knows the contents thereof, and such instrument and every statement, allegation and denial thereof are true and correct.” Such affidavit does not comply with Rule 86 since the attorney who swore to the controverting plea swore only that the allegations and statements contained in the controverting plea were true and correct which did not include or adopt the allegations of the petition which were not sworn to. Therefore, since the controverting plea did not specifically refer to and adopt the allegations of the petition and the affidavit did not specifically state that the allegations contained in the petition were true and correct, the controverting plea was fatally defective. A. H. Belo Corp. v. Blanton, supra; Fair v. Mayfield Feed & Grain Co., Tex.Civ.App., 203 S.W.2d 801, 804, 805, no writ history; Kerin v. Jones, Tex.Civ.App., 185 S.W.2d 448; Pool v. Sanders, Tex.Civ.App., 241 S.W.2d 739, no writ history.

There are numerous cases holding that where the controverting affidavit docs not contain any language which, might be construed to state a cause of action but merely refer to an exception to exclusive venue by pointing out a subdivision of Art. 1995, V.C.S. or does not refer to and adopt the allegations in the petition as a part of the controverting affidavit, such controverting affidavit is insufficient to sustain venue in the county in which the suit is filed as against the right of a defendant to have the cause transferred to the county of his residence under a properly filed plea of privilege. A. H. Belo Corp. v. Blanton, supra; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 351; Eastland v. Whitman, Tex.Civ.App., 318 S.W.2d 447, no writ history; Crim v. Logan, Tex.Civ.App., 277 S.W.2d 298, no writ history; Chapman v. First Nat. Bank of Wellington, Tex.Civ.App., 221 S.W.2d 318, 320, no writ history; Robinson v. Glasse, Tex.Civ.App., 188 S.W. 2d 598, 600, no writ history; Faught v. Cloud, Tex.Civ.App., 131 S.W.2d 137, no writ history.

The opinions in the cited cases are in direct conflict with the holding in the majority opinion that the allegations in appellees’ controverting plea constituted an approved way of pleading the grounds relied on in controverting a plea of privilege. Certainly, there is nothing in the opinion in Duncan v. Denton County, Tex.Civ.App., 133 S.W.2d 197, error dism., cited in the majority opinion which supports such holding.

In addition, since appellees’ controverting plea filed June 8, 1961 was fatally defective as a matter of law for the reasons above stated, the Trial Court was guilty of an abuse of discretion in permitting it to be filed after the ten day period required by Rule 86 had elapsed for “good cause shown” under the provisions of Rule 5(b), T.R.C.P. The “good cause” given by appellees’ attorney as set forth in his motion for leave to file the controverting plea after the ten day period allowed by the rule is the statement that in the preparation of the controverting plea filed March 4, 1961 Mr. Davis’ secretary had advised him that she would prepare the affidavit on a separate sheet of paper and attach it to the plea and send it to Mr. Mc-Kenney to swear to and file. No explanation or excuse was given by either of the attorneys for appellees for their failure to read or check the controverting plea to ascertain whether the affidavit had been attached by the secretary and sworn to by Mr. McKen-ney prior to its filing. In my opinion, the reasons stated in the motion failed to show any “good cause” for the Trial Court to permit its filing .but on the contrary demonstrate that the attorneys were inexcusably negligent by failing to read or check the instrument before it was filed.

Since the Trial Court was guilty of an abuse of discretion in granting appellees’ motion to file the controverting plea after the ten day period, if follows that the Trial Court was in error in overruling and in not sustaining the special exceptions contained in appellant’s motion to strike the controverting plea.

The controverting plea of privilege being fatally defective as a matter of law, the Trial Court also erred in permitting the introduction of any evidence of facts necessary. to sustain venue, in Travis County, Texas since there were no pleadings to support it and it then became the duty of the Trial Court to sustain the plea of privilege and transfer the cause to any of the District Courts of Dallas County. Fair v. Mayfield Feed & Grain Co., supra; Pool v. Sanders, supra; Eastland v. Whitman, supra. Therefore, this cause should be reversed and remanded to the Trial Court with instructions to sustain appellant’s plea of privilege and transfer this cause to any of the District Courts of' Dallas County, Texas.

On Motion for Rehearing

Appellees on April 4, 1961, timely filed a defective controverting plea to appellant’s plea of privilege. On May 29, 1961, appellant, in general language, called attention to the defectiveness of such controverting plea by filing a motion to strike it.

On May 29, 1961, appellee filed an amended plea controverting appellant’s plea of privilege. This plea was a sworn plea.

The hearing on appellant’s plea of privilege was held June 21, 1961, and overruled’ by an order signed and entered June 27,. 1961.

Appellee’s right to file an amended' controverting plea was absolute, nor was-leave of Court required.

Rule 62, T.R.C.P. provides, in part, that an amendment “ * * * is to add something to, or withdraw something from, that which has been previously pleaded so as to perfect that which is or may be deficient * $ ‡»

Rule 63, T.R.C.P., provides:

“Parties may amend their pleadings, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there be a showing that such amendment will operate as a surprise to the opposite party.”

Rule 64, T.R.C.P., provides that the party" amending shall point out the instrument amended, as “original petition” etc. "or other instrument filed by the party.” Italics-added.

Leave of Court to file the amended controverting plea was not required because it was-not offered for filing within “seven days o£ the date of trial or thereafter,” and it could not, as a matter of law, operate as a surprise to appellant by merely swearing to it, a defect which appellant indirectly called attention to by filing his motion to strike.

It is also the law that amendments of pleadings are mandatorily permissible when tendered to meet exceptions. Caperton v. Thorpe, 240 S.W.2d 329, Eastland Civil Appeals; Schepps v. American District Telegraph Company of Texas, 286 S.W.2d 684, Dallas Civil Appeals; 20 Tex.Jur.2d p. 210.

It follows that appellee’s right to amend his controverting plea was absolute. That it may have been, as appellant pled, “fatally defective” only emphasizes the need for amendment. The right of amending a pleading is not dependent upon any degree of its defectiveness.

Litigants and their attorneys should be able to rely, with confidence, upon their right of amendment given by the Rules and neither Court nor judge should abridge this right.

The case of Brashears v. Strawn Nat. Bank, 57 S.W.2d 177, Eastland Civil Appeals, was decided before the adoption of the present Rules of Civil Procedure. If it holds that a controverting affidavit cannot be amended, it is, in our opinion, not now the law.

The third controverting plea, identical with the amended plea, if it has any standing at all, must be an amended plea regardless of the name it bears. Rule 71, T.R.C.P.; Kennann v. Deats, 258 S.W.2d 145, writ ref., N.R.E., Amarillo Civil Appeals. It is impossible for appellee to have filed two original controverting pleas.

Rule 58, T.R.C.P., provides, in part, that “statements in a pleading may be adopted by reference” in a different pleading provided only that the pleading containing such statements has not been superseded. “Adopt” means “to take or receive as one’s •own.” 'Webster’s Int. Dictionary, 2d Ed.

In the amended controverting plea appel-lee stated “ *■ * * that the allegations contained in their original petition (a current pleading) on- file herein are true and correct. ⅜ ⅜ ⅜

The original petition, to which reference was made, was appellee’s own pleading, and we are of the opinion that the controverting affidavit was sufficient to adopt (make as appellee’s own) the allegations in it for the purpose of controverting appellant’s plea of privilege.

We are also of the opinion that these allegations, so adopted, were supported by an affidavit as to their verity.

Appellees alleged that such allegations were “true and correct” and the attorney making the affidavit swore that “such instrument (controverting plea) and every statement, allegation and denial thereof are true and correct.”

In other words, the attorney swore that the statement in the plea that the allegations in the original petition were true was true. This is a round about way of swearing to the contents of the original petition, but we believe it suffices. If the statements in the original petition were not true, then the sworn statement that the unsworn statement that they were true was true would be a false statement.

In any event, if this case must be reversed because the controverting plea was not properly sworn to or did not properly adopt the allegations of the original petition, we would remand the case and not render judgment transferring it. Rules 434, 505, T.R.C.P.; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688; London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619; Red Arrow Freight Lines v. Cagle, Tex.Civ.App. 206 S.W.2d 1019, Waco Civil Appeals.

It is not denied that as to the merits of this appeal, venue lies in Travis County. It would be an injustice to appellee to move it to Dallas County. - -

It is our considered judgment that there is no warrant herein for attributing to the Trial Judge an “abuse of discretion” or to appellee’s counsel an act “inexcusably negligent.”

The motion is overruled.

Motion overruled.

RICHARDS, J., dissenting.

      . The plea was unsworn.

      . This motion was. not in compliance with Rule 90, T.R.C.P., which requires defects in a pleading to be “specifically pointed out” by exception to avoid waiver. Here all appellant stated in his motion was “that such pleading was in fact ho controverting plea to Defendant’s plea of privilege in that it did not conform to Rule 86, Rules of Civil Procedure and . is fatally defective.”