author: WOODLEY, Presiding Judge.

text:
    Raymond Morris WOOSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36587.
    Court o£ Criminal Appeals of Texas.
    March 18, 1964.

      Warren Burnett, Odessa, for appellant.
    Stephen Haley, County Atty., Seminole, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $150.

The appellant was stopped while driving an automobile on a public highway about one mile north of Seminole, in Gaines County.

Texas Highway Patrolmen Gene Pate and Charles Miller, who stopped him, testified that appellant was driving across the center stripe and in an erratic manner. Both officers expressed the opinion that he was intoxicated.

Patrolman Pate testified: “He staggered a little bit * * * he was mixed up. He kept repeating the same question and everything to us * * *. He told us he was a partner in a business in Odessa but he couldn’t remember the name of the business.” He further testified that he found two bottles of Vodka in the car appellant was driving, and a bottle of Vodka mixer.

Patrolman Miller testified that one of the bottles of Vodka was unopened and the other was “a little over two-thirds empty, just a little bit left in the bottom,” and that a receipt from a liquor store dated that day for two fifths of Vodka and a quart of mixer was found in the car. Patrolman Miller further testified that he took the appellant upstairs at the jail, at which time he showed symptoms of intoxication — “he couldn’t walk up the steps. He fell down one time, fell against the jail. When he walked he raised his feet real high like he was goose stepping and his feet slapped against the ground * * *. He was having difficulty in controlling his legs * * * he acted awful beligerant.”

On cross-examination he testified that the appellant “was staggering bad” at the scene of the arrest.

Bob Newman, witness for the state, identified the appellant as the man he saw shortly after dark “on or about May 18th, 1962” on the highway about halfway between Seminole and Andrews. He testified that the appellant was “obviously very drunk” and that he followed him into town and called the Highway Patrol.

The appellant testified in his own behalf and offered witnesses who testified to his good reputation for being sober, peaceable and law abiding, and for truth and veracity. He admitted and proved by one of his witnesses that he had consumed some Vodka about 7:30 P.M.

The appellant testified that he was alone and was driving the automobile when he was stopped by the patrolmen; that he “was not drunk at all. Definitely not intoxicated * * * I didn’t have any trouble walking but I was kinda scared * *

He admitted that he bought the Vodka that day at Newman’s Liquor Store in Ector 'County where he had a charge account. He ■denied that he had ever seen the witness Bob Newman before the trial.

The jury resolved the issue of appellant’s being intoxicated against him and the evidence is sufficient to sustain their verdict.

The sole ground upon which reversal is sought is : “The trial court reversibly erred in admitting proof of extraneous ■crimes having no relevance to any issue made by the pleadings or the evidence.”

This claim of error is predicated upon the ‘testimony of Bob Newman, and upon the fact that he was unable to fix the exact date lie saw the appellant.

The date alleged in the information was "“on or about the 18th day of May A.D. 1962.” The state’s first witness, Patrolman iPate, was asked and answered:

“Q. And I ask you if you had and occasion to see Mr. Woosley on or about the 18th day of May, 1962?
“A. Yes, sir, I did.”

Later in his testimony he fixed the time =as about 8 o’clock “that particular night.” Nowhere in his testimony do we find where Patrolman Pate testified that the offense 'was committed on May 18.

Patrolman Miller fixed the time and date ;as May 18, 1962, about 9 P.M.

Bob Newman was asked and answered, rafter identifying the appellant:

■“Q. I’ll ask you if you saw him on or about May 18th, 1962?
'“A. Yes, I did.
“Q. Where did you see him?
“A. On the highway about half way between here and Andrews.
“Q. What transpired that caused you to see him at that place ?
“A. Well, I was coming from Andrews toward Seminole and it was after dark and I came over a rise and —”

At this point counsel for the appellant was allowed to question the witness and asked, and the witness answered:

“Q. Mr. Newman, what was the exact day you saw this man ?
“A. It was sometime in May, about the middle of May.
“Q. You are not able to tell us what the exact day was ?
“A. It’s been over a year and I wouldn’t be able to swear to the date exactly.”

Officer Pate testified:

“Q. Mr. Pate, were you hunting Mr. Woosley?
“A. No sir. * * *
“Q. Just tell Mr. Pate what occurred out there in your presence that occasioned you to see Mr. Woos-ley.
“A. I got a call on my radio * *

Objection made after the answer was sustained, though the court correctly stated: “I don’t see, unless it goes into what was said that it would be in hearsay.” The answer was not stricken.

The witness further testified:

“Q. Alright, now I believe you testified that you were not seeking Mr. Woosley.
“A. No sir.
“Q. Were you seeking that particular car.
“A. Yes sir.”

We find no merit in the contention that Newman’s testimony constituted proof of an extraneous offense, and not the offense which was proved by the testimony of the patrolmen.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Ex parte Clifford HAMILTON.
    No. 36830.
    Court of Criminal Appeals of Texas.
    March 18, 1964.
    Clifford Hamilton, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner filed his application for writ of habeas corpus before the Honorable Max M. Rogers, Judge of the 12th Judicial District, who developed the facts and certified the same to this Court under the terms of Art. 119 Vernon’s Ann.C.C.P.

From the record we determine that relator was convicted in cause No. 41S31 in the Criminal District Court of Harris County on November 25, 1935, for the offense of robbery, and his punishment was assessed at life imprisonment. At the hearing on his application for writ of habeas corpus, relator established that at the time of such trial he was indigent, that he asked the court to appoint counsel to represent him, which request was by the court refused, and that he was forced to trial without counsel.

Under the opinion of the Supreme Court: of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 799, such conviction is void.

Accordingly, it is ordered that relator be released from his present custody and that he be delivered to the custody of the Sheriff of Harris County to stand trial on the original indictment in said cause No. 41531.


text:
    Lawrence CHILDS, Appellant, v. The STATE of Texas, Appellee.
    No. 36522.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    Rehearing Denied April 1,1964.

      Lawrence R. Green, Dallas (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Weldon Barnett, Supervisor of men’s furnishings for Sanger Harris Department Store, Preston Center, who had worked in men’s clothing for Sangers for seven years and prior to that time had been in the same business for himself at Three Rivers, testified that on the day in question he observed a colored man, who was wearing a sweater and was accompanied by a woman, standing around a rack where topcoats were on display, that no clerk was attending, that when the man in question turned and left the store, he was wearing a topcoat, that he and the store detective gave chase, apprehended the man and returned him to the store, and that the police were called. On the question of value, which is the only contested issue in the case, he testified that the coat in question had originally been priced at $69.95, but that after Christmas, all coats of the same make were marked down to $52.90, and further that “Usually at the end of a season we will mark it down to a lesser price to move them out of our stock so we can use the money for something else.” He stated that if the man in question had wanted to buy that coat on the day in question, he would have had to pay Sanger Harris the sum of $52.90, which was the retail sales price after the pre-Christmas price had been marked down, and that based on his experience in the clothing business, he fixed the fair market value at $52.90. He stated that b e had approximately 25 such coats in stock at that time and that none of them were ever sold at a price less than $52.90.

The store detective observed the entire transaction and positively identified appellant as being the man who came in the store wearing a sweater and left wearing an overcoat which she saw him take from the rack. She testified that she overtook him and returned to the store with him, where, after some resistance, appellant took off the coat which was introduced in evidence, and at this juncture, the appellant said that he had never seen the coat before. The police officer, who arrived at the store in response to a call, also identified appellant and the coat.

The prior convictions and appellant’s identity were established.

Appellant did not testify in his own behalf, and we overrule appellant’s contention that value was not shown and hold the evidence sufficient to support the conviction. Larkin v. State, 157 Tex.Cr. 284, 248 S.W.2d 134.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, President Judge.

text:
    Milton Henry WINKLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36589.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Rehearing Denied April 1, 1964.

      No attorney of record on appeal, for appellant.
    Frank Brisco, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, President Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

No brief has been filed on appellant’s behalf. There are no formal bills of exception or exceptions relating to the court’s charge.

Police Officer Sudsberry testified that the appellant was driving an automobile on a public highway in Houston; that he saw him run a red light and drive some five blocks straddling the marker between two lanes of travel; that he stopped the appellant and observed that his speech was slurred; he had a thick tongue; was hard to understand; his eyes were bloodshot; he staggered; had a smell of alcohol on his breath; and that he said — “that is all I had to drink”, pointing to an empty vodka bottle found in the car. Officer Sudsberry testified that in his opinion the appellant was intoxicated.

Sergeant Hensley, Radio Patrol, Houston Police Department, who responded to Officer Sudsberry’s call, testified that he observed the appellant at the scene and talked to him; that the appellant “had a clear strong peculiar odor, a strong alcoholic type of odor” on his breath; he was “not very coherent — kept on ignoring my questions directly, he would refer back to something else”; he was standing “attempting to change weight from one foot to the other and keeping his head away from me, and apparently unstable”; his eyes were watery and bloodshot but the pupils were normal, which indicated that his condition was not caused by narcotics or medicine but by intoxication. Sgt. Hensley expressed the opinion that the appellant was intoxicated.

The appellant testified and called as witnesses his wife who, with their children, was a passenger in the automobile at the time; his mother who had gotten out of the car at her home shortly before, and the owner of a liquor store who saw him about 6:30 P.M. and again when he was released from jail on bond about 2 A.M.

According to the testimony of these witnesses the appellant had consumed no alcoholic beverage or liquor other that one bottle of beer, and was sober.

The fact issue raised by the evidence was resolved against the appellant by the jury and the evidence is sufficient to sustain their verdict.

We have examined the informal bills of exception reserved in the statement of facts and find none which show reversible error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Mamie Jane BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 36517.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    liehearing Denied April 1,1964.

      M. Gabriel Nahas, Jr., King C. Haynie, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was tried upon an indictment for murder with malice aforethought and convicted of negligent homicide in the second degree, with punishment assessed at confinement in' jail for three years.

The evidence presented by the state showed that prior to his death the deceased and «the appellant had been going together. On the night in question, appellant came to her sister’s apartment shortly after midnight and stated that the deceased had slapped her. As she was leaving to go to her apartment next door, appellant told her sister to take care of her “kids.” Later in the morning, between nine and ten o’clock, the deceased was found on the front seat of an automobile, parked in the 800 block of Ruth-ven Street, in the city of Houston, about a block from appellant’s apartment. An autopsy performed upon the deceased revealed that the cause of death was a gunshot wound in the head.

Appellant was arrested at her home at 3:10 o’clock, p. m., and taken to the police station. -While being questioned, appellant told the officers that she had shot the deceased and accompanied them to her sister’s apartment, where she got the pistol with which she shot the deceased and gavq it to them. The weapon was a .22 automatic pistol containing five live rounds and one hull.

After being- duly warned, appellant also made a written statement to the officers which was introduced in evidence as state’s exhibit #1. In the statement, appellant related that she and the deceased had been going together and that on the night in question they were at several places drinking beer. Appellant stated that after leaving one of the places the deceased, who was driving, stopped the car on Ruthven Street and cut the motor off. While they were seated in the car the deceased dropped some food, which “made him mad” and for which he blamed appellant. Appellant stated that when she told the deceased she would clean “the mess up” he slapped Irel- and told her to' get out of the car. ' She related that when the deceased made a certain statement to her : “ * * * I reached in my purse and I got my gun out and I wasn’t intending to shoot him_I was just wanting to scare him. The gun went off and John [the deceased] sat back but he didn’t say anything.” Appellant further stated that after shooting the deceased she went to her sister’s apartment, where she put the gun behind some groceries under the sink. Appellant also related that, after her arrest, she went to the apartment with the officers and got the gun with which she had shot the deceased.

Appellant did not testify and called only one witness, who testified that appellant had never been convicted of a felony offense, in support of her application for a suspended sentence.

At the close of the testimony, the court granted appellant’s motion for an instructed verdict of not guilty as to murder with and without malice and submitted to the jury the issue of appellant’s guilt of negligent homicide in the second degree.

Under the court’s charge the jury were required to find, before convicting the appellant, that, while engaged in the performance of an unlawful act of carrying a pistol on or about her person, the appellant did by negligence and carelessness cause the death of the deceased by negligently causing the pistol to discharge a bullet which struck the body of the deceased, from which injuries the deceased died. The jury were further required to find that at the time the pistol was discharged the appellant had no apparent intention to kill the deceased and that at the time the pistol was discharged there was an apparent danger of causing the death of the deceased, which appellant knew or should have known in the exercise of due caution, such as a reasonably prudent person would or should have used under the same or similar circumstances.

The jury were further instructed that if they believed from the evidence or had a reasonable doubt thereof that the deceased was killed by a bullet from the pistol in the hands of the appellant, but under all the circumstances the pistol was accidentally discharged and “went off” for any reason other than the negligence and carelessness of the appellant at the time and under all the circumstances, to acquit the appellant and say by their verdict “not guilty.”

Appellant’s first complaint is that the court erred, after granting her motion for an instructed verdict of not guilty as to murder with and without malice, in submitting to the jury the issue of her guilt of negligent homicide.

We find no error in the court’s action, as a conviction for negligent homicide may be had under an indictment charging murder with malice aforethought. Art. 695, Vernon’s Ann.C.C.P.; Crowder v. State, 78 Tex.Cr.R. 344, 180 S.W. 706; Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762.

Appellant next complains that the evidence is insufficient to sustain her conviction for negligent homicide in the second degree while engaged in the commission of the unlawful act of carrying a pistol, because the act of unlawfully carrying the pistol, if proven, was shown by the uncorroborated confession of appellant. While a confession, alone, is insufficient to prove that a crime has been committed, it may be used in connection with other facts to establish the corpus delicti. Lavan v. State, Tex.Cr.R., 363 S.W.2d 139. In her confession, appellant admitted shooting the deceased while they were seated in the car. The facts, independent of the confession, show that the deceased was found in the car with a gunshot wound in the head. These facts clearly indicate that some person other than the deceased was carrying a pistol (no weapon being found in the car) and, when taken in connection with appellant’s confession, would establish that she was such person.

Appellant further complains that the evidence is insufficient to sustain the conviction because the evidence introduced by the state showed that the homicide was accidental. Appellant insists that the statement in her confession which we have here-inbefore quoted and which the state introduced in evidence and which was not disproved showed that the homicide was accidental. While the statement in the confession that the gun “went off” might infer that the shooting was accidental, in other portions of the confession appellant refers to the gun that “[she] shot John with.” Under the facts the court correctly submitted to the jury the defensive issue of accident.

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

Opinion approved by the Court.


text:
    Julian Price WEBSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 36515.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.
    Rehearing Denied April 1, 1964.
    Z. D. Allen, Wichita Falls, Clark C. Wren, Stephenville, for appellant.
    Stanley C. Kirk, Dist. Atty., Stanley M. Vickers, Asst. Dist. Atty., Wichita Falls, Sam Cleveland, Dist. Atty., Stephenville and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 99 years.

Appellant was tried in the District Court of Erath County upon a change of venue from Wichita County, where he had been previously tried and had received the death penalty. It was shown that on either the day of the homicide or the day preceding, appellant came into possession by loan and purchase of a .22 calibre rifle and a .38 calibre pistol.

The State’s case is principally based upon the testimony of two eye witnesses, Bill Best and Joyce Hege. Best had been married and divorced from his wife Helen. They each resided in the city of Wichita Falls, but in different houses. Their sons lived with Helen for a while, but were living with Bill at the time of the homicide, though they were not at home when it occurred. After Helen’s divorce, she began to keep company with appellant, and Bill saw him at the house where Helen was residing when he would go to visit his sons.

Appellant was impecunious, worked for a time at a restaurant and for a time as a photographer, and was in the habit of borrowing money from both Bill and Joyce, a divorcee whom Bill had been seeing for a short while prior to the homicide. On the day in question, Bill, Joyce and Bill’s friend, Bird Robertson, the deceased, were planning a ten day trip to Dallas and points south. Appellant called for the avowed purpose of repaying some of the money he owed them, though he never did so. When he arrived at Joyce’s apartment and learned of their trip, he insisted that he be allowed to go as far as Dallas with them. Bill reluctantly agreed, but when they were joined by deceased, and the group had gone to Bill’s home so that he might pack, appellant was informed that he could not accompany the party, was ordered to wait outside, and a taxi was called for him. Appellant did not leave in the taxi, but came back into Bill’s house with the rifle in one hand and the pistol in the other, and said, “Well, you thought I had gone”, at the same time ordering the trio into the back bedroom where he said, “I killed Helen at 7:00 o’clock this morning and now I’m going to kill you. I don’t have a thing to lose.” After requiring the men to put their money on the bed, he shot the deceased in the forehead with the rifle and later, as deceased lay on the floor, shot him in the side of the head with the pistol. Deceased died later that night without regaining consciousness. Under a pretense of getting some more ammunition for appellant, Bill was able to escape. Appellant shot at him as he fled to a neighbor’s house where the police were called. Joyce remembered nothing following the shooting of Bird, but she was apprehended later that night in company with appellant in Bill’s automobile.

Appellant did not testify or call any witness in his own behalf, but vigorously cross examined Bill and Joyce seeking to show that it was Bill and not appellant who fired the fatal shot.

These we think are the salient points of this tragic occurrence.

Appellant’s two diligent appointed counsel urge two grounds for reversal in their brief, but during their argument before the Court they stressed only one. The last witness called for the State was Officer Fox, who was asked if he went to the house where Helen Best resided on the day of the homicide and if he found her dead or alive. We quote from appellant’s objection to such question:

“If the Court please, our objection to that is that it affects new matters injected in the case, and as the status of the record yesterday afternoon when the State rested, we relied on that and we have informed some witnesses as to our position in this matter, and it’s going to be difficult then for us to get them here. As to finding Helen Best, anything with reference to her condition, we object to it, because it is putting us in an awkward position.”

Following this, the witness was permitted to testify that she was dead and that he observed bullet wounds on her person.

It is now contended that this constituted proof of an extraneous offense which, it will be observed, was not the grounds of the objection made at the time the court was called upon to rule on the admissibility of such testimony.

Clearly the statements made by appellant while in the perpetration of the homicide were admissible under that portion of Art. 1257a, Vernon’s Ann.P.C. which permits the State to offer “all relevant facts and circumstances surrounding the killing.” Proof that Helen was dead would rebut the defensive theory developed during cross examination to the effect that Bill killed deceased and then had given appellant money and his automobile in order to escape so that it would appear that appellant was the killer. 23 Tex.Jur.2nd Sec. 195, p. 301; Ivey v. State, 152 Tex.Cr.R. 206, 212 S.W.2d 146, and Compton v. State, 148 Tex.Cr.R. 204, 186 S.W.2d 74.

It would add nothing to the jurisprudence of this State to differentiate the cases relied upon by appellant because, as might be expected, they do not have the peculiar facts which are before us here. Just before he shot the deceased, appellant said several times, “I have killed Helen and now I am going to kill you. I don’t have a thing to lose.” After shooting deceased, he did in fact shoot at Bill.

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


text:
    D. D. CARPENTER, Appellant, v. The STATE of Texas, Appellee.
    No. 36736.
    Court of Criminal Appeals of Texas.
    March 18, 1964.
    E. A. Cade, Dallas, for appellant.
    . Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while license suspended; the penalty, six months in jail and a fine of $200.00.

The statement of facts which has been tendered this Court does not bear the approval of the trial court or the attorney for the State and appellant as required by Article 759a, Vernon’s Ann. C.C.P., and cannot be considered.

Appellant’s motion to quash the complaint is directed to the failure to set forth therein the number of his operator’s license and has no merit.

No reversible error appearing, the judgment is affirmed.


text:
    Alford RAY, Appellant, v. The STATE of Texas, Appellee.
    No. 36668.
    Court of Criminal Appeals of Texas.
    March 18, 1964.

      No attorney of record for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for felony theft; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, ten years.

Thomas Michael McLaughlin, called as a witness by the state, testified that he was a store detective for Leonard Brothers De-' partment Store in Fort Worth; that on the day in question, around 5 p. m., he saw appellant take two suits on hangers from a rack in the men’s department of the store and immediately leave the store through a door, with them under his arm; that he followed appellant outside and stopped him after they had walked some thirty feet. The witness stated that when he stopped appellant with the two suits, he became belligerent, and with the aid of Officer Langley, who came to his assistance, he returned to the store with appellant and the suits.

Officer Langley, upon being called as a witness, gave testimony which corroborated that of the witness McLaughlin, which was, in substance, that on the occasion in question he saw the appellant walking on Houston Street with the two suits of clothes and being followed by McLaughlin and that he assisted him in returning appellant and the clothes to Leonard’s store.

M. S. Leveridge, Jr., testified that on the day in question he was manager and buyer of Leonard’s men’s department and that he did not give the appellant or anyone else permission to take the two suits of clothes from the store. “without proper authorization.” Such term, the witness explained, meant either paying for the clothes or charging the same. He further testified that the two men’s suits of clothes had a wholesale value of $78, and a retail,value of $65, each.

The prior alleged conviction was stipulated by the parties.

As a witness in his own behalf, appellant admitted going into the store on the afternoon in question but denied that he went there to steal the clothes.' Hé stated that his purpose in going into the1 store was to purchase two suits of clothes. In.' giving his version of the transaction, appellant testified that after trying to get the attention of a clerk who was waiting on someone else, he removed the two suits from the rack, walked to the door where there was more light to see the color, and; that while looking at the clothes someone' grabbed him and caused him to go out the door. ■

Appellant’s mother, testifying in his be-, half, stated that on the day in question she gave appellant some money to pay down on the purchase of a suit of clothes at Leonard Brothers store.

The jury, by their verdict, -rejected ap-. pellant’s testimony and accepted that of the state’s witness, and we find the evidence sufficient to sustain the judgment of con-' viction.

The record contains no formal bills of exception and there are no objections to the court’s charge. No brief has been filed on behalf of appellant.

We have examined the informal bills of exception appearing in the statement of facts and find no reversible error.

The judgment is affirmed.

Opinion approved by the Court.


author: COLLINGS, Justice.

text:
    Ima Ruth ADAMS et al., Appellants, v. Calvin Truett SIMMONS et al., Appellees.
    No. 3859.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 28, 1964.
    Jlehearing Denied March 20, 1964.
    Abney, Hammett & Lynch and J. V. Hammett, Lampasas, for appellants.
    McCulloch, Ray, Rembert, Luna & Trot-ti, Ross H. Hemphill, Dallas, Norman Spencer, Jr., Robert Patterson, Snyder, for ap-pellees.
   COLLINGS, Justice.

Ima Ruth Adams, individually and as ad-ministratrix of the estate of Hallie Simmons, deceased, and other plaintiffs brought this suit against Calvin Truett Simmons and wife and numerous other defendants to partition certain lands located in Scurry, Bexar and Williamson Counties. The defendants, Calvin Truett Simmons and wife, answered by a general denial, a plea in abatement and a plea of res judicata. The facts were stipulated and the trial was before the court without a jury. Judgment was entered decreeing that plaintiffs take nothing and they appealed.

Appellants Ima Ruth Adams et al. present one point in which it is urged that the court erred in holding that they were not entitled to partition the lands. The lands which appellants sought to partition were two quarter sections of land situated in Scurry County, two lots in the City of San Antonio and a small lot in Liberty Hill in Williamson County.

The parties to this suit are the sole owners of the lands in question, in undivided interests. They derived their interests in the lands as follows:

(1) Hallie Simmons, an incompetent, died intestate July 4, 1959. At the time of her death she owned in fee simple an undivided j4 interest in all the lands in question. Both of her parents predeceased her. She was survived by two sisters, three brothers, children of a deceased brother and children of a deceased sister, by virtue of which Hallie Simmons’ fee simple title to such undivided j4 interest in the lands descended under the laws of descent and distribution in seven equal parts unto her surviving brothers and sisters, and per stirpes to the surviving children of her deceased brother and sister.

(2) Ownership of the other or remaining interest in such lands is derived from the will of Mollie I. Simmons, deceased. Under and by virtue of that will the remaining interest in said lands vested as follows:

(a) In Hallie Simmons for her lifetime. She is now deceased, having died intestate on July 4, 1959.

(b) Upon the death of Hallie Simmons to her surviving brothers and sisters (also children of Mollie I. Simmons) and the survivors or survivor thereof, until the last of them shall die. There are still surviving brothers and sisters of Hallie Simmons.

(c) The remainder in fee simple to the grandchildren of Mollie I. Simmons.

After the death of Mollie I. Simmons and while Hallie Simmons was still living a partition suit was brought in the 126th District Court of Travis County styled Mamye Dell Simmons Germann et al. v. Hallie Simmons et al. In that suit judgment was entered in 1948 construing the will of Mollie I. Simmons and partitioning the land as the interests therein existed at that time. It thus appears that the first mentioned group of fractional interests owned in fee simple by the parties as stated and aggregating an undivided Y2 interest in the lands was inherited from the decedent, Hallie Simmons, who in turn had inherited it from her father. This undivided Yz interest was set aside to her in fee in the Travis County suit above mentioned. The second group of fractional interests owned by the parties as stated, aggregating the other undivided 54 interest did not descend or pass to said parties through a fee ownership by Hallie Simmons though she did, under the will of her mother Mollie I. Simmons, acquire a life estate therein. Such interests in the other 14 undivided interest in the land vested in the parties to this suit directly under the will of Mollie I. Simmons, deceased, as construed in the Travis County District Court proceeding heretofore mentioned. The present interests of the surviving brothers and sisters of Hallie Simmons in such other undivided Yz interest are life estates with remainder in fee simple to the grandchildren of Mollie I. Simmons. Some of the brothers and sisters are already deceased.

It thus appears that appellants and some appellees own fee simple title in undivided interests in the property involved. Some of the parties own life estates in undivided interests therein. Others own the remainders in undivided interests at the conclusion of the life estates in fractional undivided interests. In this situation since appellants own fee simple title to undivided interests and are entitled but cannot have possession, a partition was sought by appellants.

Article 6082, Vernon’s Ann.Texas Civ. St. provides:

“Any joint owner or claimant of any real estate or of any interest therein * * *, whether held in fee or by lease or otherwise, may compel a partition thereof between the other joint owners * * * in the manner provided in this chapter.”

Appellees contend that the trial court correctly held appellants were not entitled to partition the lands: (1) because they had already been partitioned in 1948, in the 126th Judicial District Court of Travis County, (2) because of a provision in the will of Mollie I. Simmons, deceased, that the Yz interest in the lands in which Hallie Simmons was given a life estate was to go at her death to her brothers and sisters for life and then to their survivors, but was not to be sold before it passed to testatrix’ grandchildren, and (3) because such a partition would be prejudicial to those entitled to a reversion or remainder of the estates of 'Hallie Simmons and Mollie I. Simmons.

In connection with the contention thafc.there has already been a partition of the land by the District Court of Travis County appellees urge that a decision of a court of competent jurisdiction is res judi-cata and is conclusive, not only as to the subject matter disposed of in the judgment, but as to every other matter which might have been decided. Appellees contend that the judgment of the Travis County District Court has construed the will of Mollie I. Sirpmons, partitioned the land and has given appellants all the relief to which they are now entitled. We cannot agree with this contention.

Neither the parties nor the issues in this Scurry County case are the same as those in the 1948 suit in Travis County. At the time of the Travis County suit Hallie Simmons was living, was a party to such suit. -She then owned in fee simple an undivided Yz interest -in the lands in question and a life estate in the remaining interest therein. The lands involved in that suit included the lands involved in the instant suit but the interests of the parties therein are now entirely different. The parties to the Travis County suit, except Hallie Summons and her sister Maggie Jewell Robbins, are also parties to this suit. Maggie Jewell Robbins survived Hallie Simmons but has since died and the interest of Maggie Jewell Robbins is now vested in her two children who are parties to the instant suit. This suit in Scurry County was brought by the administratrix and some of the heirs of Hallie Simmons to partition the land in which she had a fee simple title based upon the interests which the parties as her heirs now own in said lands.

The undivided interests in the lands of the parties to this suit are thus entirely different from their interests at the time of the Travis County suit and an entirely different legal situation and different issues are now presented. Contrary to appellees’ contention the judgment of the Travis County District Court partitioning the land on the basis of the interests of the parties to' that suit at that time does not defeat appellants’ right to again partition the lands on the basis of their present interests therein. Art. 6082, supra, confers to any joint owner with right of possession the right to compel partition between the joint owners. In 144 A.L.R. 39, in an annotation under the subject “Partition Decree As Res Ju-dicata”, it is stated as follows:

“In accordance with the general rule that where, after the rendition of a judgment, subsequent events occur, creating a new legal situation, or altering the legal rights or relations of the litigants, the judgment does not operate as an estoppel nor preclude the parties from vindicating, in a new action, rights subsequently acquired (see 30 Am.Jur. 943, Judgments, § 206), it has been generally held that a judgment or decree in partition does not preclude the parties from afterward asserting a title acquired after the rendition of such judgment.”

We next consider appellees’ contention that the trial court correctly held that appellants were not entitled to partition the lands because of the provision in the will of Mollie I. Simmons, deceased that the one-half interest in the lands in which Hallie Simmons was by the will given a life estate, was at her death to go to her brothers and sisters for life and at their death to their survivors but was not to be sold before it passed to the grandchildren of said Mollie I. Simmons. It is first to be noted that the will of Mollie I. Simmons affected only a Y2 interest in the land. At the time 'of the writing of such will and at the time of- the death of Mollie I. Simmons her daughter, Hallie, already owned the fee title to the other Y2 interest in the lands. Mollie I. Simmons had no right by will or otherwise to engraft such a condition on the Y2 that Hallie already owned in fee simple. Appellants assert that they do not request a division of the estate of Mollie I.Simmons.

Appellees also contend that the partition was properly refused because it would be prejudicial to those entitled to the reversion or remainder of the estate of Hallie Simmons and Mollie I. Simmons. This suit was brought by parties who own fee simple interests in an undivided Yz interest in the land as heirs of Hallie Simmons. Some of them also own life estates in the remaining Yi undivided interest therein. The owners of such fee simple interests in such Hallie Simmons’ Y2 are entitled to have a partition thereof. Tieman v. Baker, 63 Tex. 641. It is also held that the right to partition may not be defeated by showing that some inequities will result. Moseley v. Hearrell, 141 Tex. 280, 171 S.W.2d 337.

Although appellants’ pleadings are not clear on the point they assert that they do not request a division of the estate of Mollie I. Simmons, deceased. They state that they are now concerned only with their interests in the title of Hallie Simmons to an undivided Y2 interest in the land in fee simple and its segregation from the other Yz interest which is a part of the Mollie I. Simmons’ estate. They also urge that the Yz fee simple undivided interest in the lands previously owned by the said Hallie Simmons be partitioned between the parties as their interests therein appear. Appellants were under their pleadings and proof entitled to so segregate and partition the lands. Their point complaining of the action of the court in denying such a partition is well taken.

For the reasons stated the judgment is reversed and the cause is remanded for a new trial in accord with this opinion.


author: SELLERS, Justice.

text:
    J. L. REESE et al., Appellants, v. WALLACE ENTERPRISES, INC., Appellee.
    No. 33.
    Court of Civil Appeals of Texas. Tyler.
    March 5, 1964.
    Rehearing Denied March 26,1964.

      Robert W. Simmer and Sam L. Sterrett, Jr., Houston, Nat Patton, Jr., Crockett, B. R. Reeves, Palestine, for appellants.
    F. P. Granberry, Adams & Granberry, ■ Crockett, for appellee.
   SELLERS, Justice.

This is an appeal from an order of the District Court granting Appellee, Wallace Enterprises, a corporation, a temporary injunction against the Appellants, J. L. Reese, Charles Aronstein, and R. W. Simmer, Trustee, from which judgment the appellants have duly prosecuted this appeal.

For the nature of the appellee’s suit in the trial court, we quote from their second amended original petition, as follows:

“That on or about the 9th day of November, 1962, Defendants J. L. Reese and Charles Aronstein executed and delivered to Plaintiff an assignment and conveyance of certain mineral interests, royalties and overriding royalty interests on lands situated in Houston County, Texas, all as more fully described in that certain assignment executed by the parties aforesaid, together with all exhibits attached thereto, which has been duly and legally filed in the Deed Records of Houston Count/i, Texas and now of record in Book 378 at page 517 of the Deed Records of Houston County, Texas, to which instrument and the record thereof reference is made for all purposes, the same being to voluminous to copy in full herein.
“As consideration for the conveyance to the Plaintiff described above, Plaintiff paid to Defendants a total sum of Fifty Thousand Dollars ($50,000.00) cash. As further consideration, Plaintiff executed and delivered to Defendant J. L. Reese its promissory note dated November 9, 1962, payable to the order of the said J. L. Reese in the principal amount of Two Hundred Eighty-two Thousand One Hundred Eighty-two and 24/100 Dollars ($282,-182.24), bearing interest at the rate of four per cent (4%) per annum from date, payable in two installments, the first of said installments to be in the principal sum of One Hundred Twenty-six Thousand Nine Hundred Thirty-two and 24/100 Dollars ($126,932.24), being due and payable on or before the 15th day of February, 1963, together with accrued interest thereon, and the second of said installments to be in the principal amount of One Hundred Fifty-five Thousand Two Hundred Fifty and no/100 Dollars ($155,250.00), together with accrued interest, said second installment being, due and payable on or before the 15th day of July, 1963.
“As a further consideration for the conveyance to Plaintiff described above, Plaintiff executed an additional promissory note dated November 9, 1962, payable to the order of Defendant Charles Aronstein in the principal amount of Twenty-nine Thousand Three Hundred Seventeen and 76/100 Dollars ($29,317.76), bearing interest thereon at the rate of four per cent (4%) per annum from date, both principal and interest being due and payable on or before February 15, 1963.
“The payment of each of said notes was secured by Deeds of Trust executed by the Plaintiff, as grantor, on or about the 9th day of November, 1962, to Defendant R. W. Simmer, Trustee. Each of said Deeds of Trust described above is on file and of record in Houston County, Texas, to which reference is here made for all purposes.
“As an inducement to the Plaintiff to purchase the mineral and royalty interests described above, the Defendants J. L. Reese and Charles Aronstein made certain representations of fact to Edward Gregg Wallace, Jr., president of the Plaintiff corporation, upon which Plaintiff relied and with out which Plaintiff would not have purchased interests described above. Such representations were made to Plaintiff by Defendants, J. L. Reese and Aronstein immediately prior to the execution and •delivery by Plaintiff of the notes described above and consisted of the following: That the I. E. Doan Well No. 1 in the H. A. Johnson Survey, A-477, and the W. T. Bruton Well No. 1 in the B. Morris Survey, A-710, in Houston County, both operated by John Pace would be reworked whereby production would be enormously increased and also that both of said wells and other acreage in said assignment would be placed in the first field-wide pressure maintenance unit. That in each instance the representations have failed to be true and as a result Plaintiff has sustained damage in that over 1072 acres of the interests conveyed is not as productive as represented by Defendants aforesaid to the Plaintiff. Said representations by Defendants aforesaid were material and have proved to be false as stated above and were relied upon the the Plaintiff at the time they were made to its detriment. * * *
* *
“Due to the discovery by Plaintiff of the misrepresentations on the part of the Defendants aforesaid Plaintiff failed to make the payments described in the promissory notes on the 15th day of February 1963, and thereafter, on the 21st day of February, 1963, Defendants made demand upon Plaintiff for such payments, and have subsequent to such demand instituted foreclosure proceedings upon the deeds of trust given to secure the payment of the promissory notes, and Plaintiff here alleges that Defendants intend to foreclose the above mentioned Deed of Trust liens and the Trustee named in such Deeds of Trust has, on the 9th day of September, 1963, posted Notices of sale stating that he will on October 1, 1963, within hours prescribed by law sell the properties therein described and Plaintiff says that unless restricted and enjoined by this Court as hereinafter prayed said Trustee will sell such property.
“Plaintiff has no adequate remedy at law in that unless restrained and enjoined as aforesaid, Defendants could conceivably convey the interests involved herein to some third party without notice of the claims of Plaintiff. :Jc * *

The petition closes with a prayer for a cancellation of the notes and deeds of trust and prays that the Appellant Simmer, Trustee, be temporarily restrained and enjoined pending hearing thereon and that on hearing hereon be temporarily enjoined from taking any further action towards the exercise of the power of sale contained in the above-mentioned deeds of trust and from selling the property described in the said deeds of trust under such powers, and that Appellants J. L. Reese and Charles Aronstein be temporarily enjoined and restrained pending hearing thereon and that on hearing they and each of them be temporarily enjoined from in any manner selling and conveying the above-mentioned notes and liens securing same to any person and that the trial court set down a time and place for the hearing of appellee’s application for temporary injunction; but it is pointed out that appellee does not seek any injunctive relief which would prevent the appellants from seeking a judicial foreclosure of the above-mentioned notes. The petition of appellee was duly verified.

Appellants filed their first amended original answer, and in their very first paragraph deny the representation as alleged in the petition of the appellee. In their second paragraph, they allege specifically that the transaction was made after due negotiations between the parties. In paragraph 3 of their petition, they allege that Aronstein was not at any time agent for Reese. In paragraph 4 of the petition, they deny allegations that Reese served as an agent. In paragraph S of the appellants’ answer, by way of affirmative defense, it is set out that appellee conveyed the property which is in dispute in the lawsuit, and for this reason they could not rely upon a rescission of the instruments complained of. In paragraph 6 of their answer, the appellants plead an offer to compromise between the parties; and by virtue of the negotiations for the compromise, the appellee waived any fraud alleged by it and thereby ratified, affirmed and adopted the original assignment and conveyance from J. L. Reese and Charles Aronstein as valid. In paragraph 7 of appellants’ answer, they allege the notes and deeds of trust securing the same had been assigned to Fannin Bank of Houston, Texas, and that the bank was a necessary party to the suit. Wherefore they pray that the temporary injunction prayed for by appellee in its second amended original petition be denied.

Upon a hearing before the court for the temporary injunction, the court, on the 20th day of September, 1963, rendered its order granting the temporary injunction after a full hearing in which many witnesses testified; and after considering all the evidence and the verified petitions, granted the temporary injunction, for the reason that the court was of the opinion that appellee’s second amended original petition alleges a cause of action and that the evidence shows that appellee has a probable right for the relief sought by its second original amended petition; and that should appellants Reese and Aronstein sell and convey to some other person the notes and liens mentioned in appellee’s second amended original petition, or should R. W. Simmer, Trustee, or any substitute trustee who may have been appointed, take any further action for the exercising of the powers of sale contained in the deeds of trust executed by Wallace Enterprises, Inc., securing the payment of the notes described in appellee’s second amended original petition, appellee would suffer irreparable injury for which there is no adequate remedy at law.

The court then proceeds to enjoin the appellants from selling and conveying to any person the notes and liens mentioned in appellee’s second amended original petition, and restraining and enjoining the Appellant Simmer, Trustee, or any substitute trustee who may have been appointed, from taking any further action for the exercising of the powers of sale contained in the deeds of trust executed by Wallace Enterprises, Inc., securing payment of the notes described in appellee’s second amended original petition, btit such writ of injunction shall expressly state that none of the appellants are restrained from seeking to enforce the payment of said notes by any other means other than the exercising of the powers of sale contained in the above-mentioned deeds of trust. (Emphasis supplied)

The order further requires of the appel-lee a bond in the sum of $75,000.00 for the issuance of said injunction.

It seems to be now well settled by the authorities that the only issue on an appeal for an interlocutory order for a temporary injunction is whether or not the court abused its discretion in granting the same. Taylor, et al. v. Allied Van Lines, Inc., et al., Tex.Civ.App., 374 S.W.2d 682. In this case, Chief Justice Dunagan, of this court, has discussed the above question at length and cites many authorities supporting the above conclusion. As held in the above case, the real purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit pending the final trial of the case on the merits.

The record in this case reflects, without contradiction, that the trial court set a hearing upon the application for a temporary injunction; that all parties appeared and offered evidence upon the issues; and after the argument of counsel, the trial court granted the temporary injunction sought by the appellee, to which judgment the appellants excepted and have prosecuted this appeal to this court.

Since this is an appeal from a hearing on appellee’s application for a temporary injunction before the judge of the trial court, no decision on the merits was made nor could be made. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959.

The appellee, in its petition, seeks a rescission of the sale to it and the cancellation of the deeds and notes, as well as the deeds of trust securing the notes on the alleged ground of fraud. At the time its suit was brought, the appellants were in the process of selling the property under the power contained in the deeds of trust and thereby placing the title in some third party who could have been an innocent purchaser. It is our opinion, to prevent this, the trial court was justified in granting the temporary injunction and restraining the sale until the cause could be tried on the merits. Lee v. Howard Broadcasting Corp., Tex.Civ.App., 305 S.W.2d 629. This case likewise settles the point made on appeal that the bond of $75,000.00 was insufficient, since it did not comply with Rule 684, Texas Rules of Civil Procedure, which rule is, in part, as follows:

“If the injunction be applied for to restrain the execution of a money judgment or the collection of a debt, the bond shall be fixed in the amount of such judgment or debt, plus a reasonable amount to cover interest and costs. * * *

When the order granting the temporary injunction and the writ itself is examined, it will be obvious that the same only enjoins the exercise of the power of sale contained in the deeds of trust and does not enjoin the collection of debt; therefore, this rule has no application. The bond is believed to be ample to protect the appellants against loss.

We have examined the many points of law brought forward in the brief of appellants and find that they raise issues to be determined on a trial of the case on the merits. The cases cited in appellants’ brief in support of the points relied upon by the appellants are from cases involving a final judgment and not from an appeal from an interlocutory order granting a temporary injunction.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. M. Z. REED, Appellee.
    No. 34.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 5, 1964.
    Rehearing Denied March 19, 1964.

      James Greenwood III, of Vinson, Elkins, Weems & Searls, Houston, for appellant.
    Robert L. Steely, of Hill, Brown, Kron-zer, Abraham, Watkins & Steely, Houston, for appellee.
   GREEN, Chief Justice.

This appeal is from a judgment for total and permanent disability plus recovery of $1,168.00 unpaid medical bills in a workman’s compensation case. Appellee was injured March 26, 1961, while working on a drilling rig. A cat line raising three joints of pipe to the top of the derrick became fouled in a rapidly rotating cathead and broke, causing appellee to be struck in the back by steel tongs weighing approximately 250 pounds and to be knocked to the floor of the derrick. There he was repeatedly struck many times by a metal chain and steel cable attached to the rotating cathead before other employees could shut off the power and remove him. He suffered severe injuries, from which he was hospitalized for over 100 days. According to his testimony at the time of his trial over two years later, he had not worked in gainful employment since the accident.

It was stipulated at the trial that for fifty-eight weeks after the injury, appellant paid appellee $35.00 per week compensation for his injuries, and had paid $1,159.50 medical bills and expenses in addition to the unpaid bills as found by the jury verdict.

The trial was held in May, 1963, by which time appellee had recovered from the injuries to his body with the exception, according to Dr. Martin Towler, a neuropsychi-atrist who had been treating appellee since July, 1961, that he still suffered from an injury to the perineal nerve in his left leg, causing what was designated as a foot drop and consequential limp. The principal cause of appellee’s present disability, according to Dr. Towler, was a depression, a real, existing mental disease resulting from the accidental injury of March 26, 1961. He testified that appellee got better perodically and appeared to be on the verge of recovery, and then suffered relapses. He said that appel-lee would eventually be able to work again, but he did not know how long his depression would last, and that the disability resulting from this condition would be of indefinite duration.

There was testimony from doctors placed on the stand by appellant to the effect that appellee, at the time of the trial, had no disability at all. The testimony of Dr. Edmond Fountain and Dr. Edward T. Smith, appellant’s witnesses, supported its position that, after the first few months following the accident, appellee’s disability was only partial and was temporary.

Thus it became a matter for the jury to decide the extent and duration of appellee’s disability, if any. Appellant does not question the sufficiency of the evidence to support the findings of the jury. This appeal is based entirely on alleged error of the trial court in excluding two items of evidence offered by appellant.

Appellant’s first complaint is that it was not permitted to prove by appellee that he was receiving $105.00 per month social security disability payments as the result of his injuries. Appellant’s other point is based on the exclusion from evidence of three sheets of paper from the medical files of appellee’s medical witness, Dr. Martin Towler, these sheets being (1) a letter from the Social Security Administration addressed to appellee requesting that he obtain a medical report from Dr. Towler; (2) a government form to be signed by appellee authorizing his doctor to release records to the Social Security Administration, and instructing the physician as to the information desired; and (3) the blank form of a medical report. Except for appellee’s name, address, date of birth and Social Security number, these papers, the blanks of which had not been filled in, contained no facts, no medical opinions and no information concerning appellee or his injuries.

Appellee objected to the introduction of such evidence on the grounds that it was immaterial and irrelevant to any issue in the case, and that it constituted testimony of payment from a collateral source. Such objection was sustained. We find that no error was committed by the trial court in excluding this offered testimony, and that the judgment should be affirmed.

Under the collateral source rule invoked by appellee in his objection to all testimony concerning the application for and payments of social security disability benefits, the fact that an injured person receives from a collateral source payments which may have some tendency to mitigate the consequences of the injury which he otherwise would have suffered may not be taken into consideration in assessing the damages or other recovery to which the claimant may be entitled. See annotation in 75 A.L.R.2d 885 et seq.; 25 C.J.S. Damages § 99, page 647.

It is undisputed that the fact that appel-lee, after the payments which appellant made to him for fifty-eight weeks were discontinued, applied to the government for social security disability benefits, and that the government recognized the validity of his claim and made such payments to him would not ordinarily be admissible to mitigate the damages or affect his right of recovery. Appellant concedes that the collateral source rule prohibiting generally evidence of collateral payments from other sources, such as insurance, pension or retirement funds, employee benefit accounts, social security or old age assistance, etc., has been applied in numerous Texas cases to exclude testimony such as offered here. St. Louis & S. F. Ry. Co. v. Clifford, Tex.Civ.App., 148 S.W. 1163, writ ref.; Graves v. Poe, Tex.Civ.App., 118 S.W.2d 969, writ dis.; Texas Cities Gas Co. v. Dickens, Tex.Civ.App., 156 S.W.2d 1010, aff’d., 140 Tex. 433, 168 S.W.2d 208; Mosby v. Texas & P. Ry. Co, Tex.Civ.App, 191 S.W.2d 55, n. w. h.; R. E. Dumas Milner Chevrolet Co. v. Morphis, Tex.Civ.App, 337 S.W.2d 185, writ ref. n. r. e.; Missouri-Pacific Railroad Co. v. Willingham, Tex.Civ.App., 348 S.W.2d 764, n. w. h.

But appellant says that a situation is presented where the rule should not be applicable, or where an exception should be made. In answer to appellee’s objection to the tendered testimony in the trial court, appellant’s attorney stated, “This is a case in which a man has a condition of the mind, and I think the jury is entitled to have before it anything that might bring about that condition, and the fact that he has drawn this compensation * * * from the government would be admissible, and we don’t want to show the amount, we just want to show that he is drawing it, because of the effect it might have on his mind * * * and that it might be a motivating factor; I am not saying it is because I don’t know.” As stated in its brief, “Appellant’s position is that such evidence was and is relevant and material on the question primarily of the duration as well as the very nature of appellee’s ‘disability’ at the time of trial. * * * It was not offered to mitigate damages, but to show that something other than the accident of March 26, 1961, was the cause of his continued disability, if any, and to show that the disability was not permanent.” Appellant further argues that the evidence that appellee was receiving the disability payments was admissible to show that the continuation of his disability, if any, flowed from the fact that he was receiving money only so long as he was found to be disabled, and that upon a medical or judicial finding that he was not, those payments would discontinue, and so, consciously or unconsciously, appellee’s disability continued because of compensation, not trauma.

Appellant tells us that he has found no Texas case supporting his views, and in fact cites no final authority on the point raised. The opinion of the 2d Circuit in Eichel v. New York Central Railroad Co., 319 F.2d 12 (1963), an F.E.L.A. case, is cited as holding that evidence of disability payments received by the injured plaintiff under the Railroad Retirement Act of 1937 was admissible for the limited purpose of showing the effect such payments might have on the state of plaintiff’s mind, and on the duration or permanency of his injuries.

But shortly after appellant filed its brief in our court, this decision was reversed by the U. S. Supreme Court by per curiam opinion rendered December 16, 1963, and reported in 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307. In holding that the trial court properly excluded such offered testimony, the opinion states:

“Respondent argues that the evidence of the disability payments, although concededly inadmissible to offset or mitigate damages, is admissible as bearing on the extent and duration of the disability suffered by petitioner. At the trial counsel for respondent argued that the pension would show ‘a motive for (petitioner’s) not continuing work, and for his deciding not to continue going back to work after the last accident.’ On the basis of this argument the Court of Appeals concluded that the disputed evidence should have been admitted because: ‘Its substantial probative value cannot reasonably be said to be outweighed by the risk that it will * * * create substantial danger of undue prejudice through being considered by the jury for the incompetent purpose of a set-off against lost earnings.’ 319 F.2d, at 20.
“We disagree. In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. * * * It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner’s receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.”

The case of R. E. Dumas Milner Chevrolet Co. v. Morphis, Tex.Civ.App., 337 S.W. 2d 185, writ ref. n. r. e., presents a situation which we find to be similar to the instant appeal. Defendant in a personal injury case sought to prove that during plaintiff’s absence from work, following his injury in a collision, lie continued to receive under a partnership agreement, his full share of partnership profits for a period of time, and a lesser share for a subsequent period. Defendant insisted that the evidence was admissible on the extent and duration of plaintiff’s disability and would have aided the jury in deciding whether the reason plaintiff did not work more than he did was that he was drawing pay for not working rather than because he was disabled from working. The trial court excluded this evidence, and also excluded plaintiff’s income tax return, which would have reflected such income. The Court of Civil Appeals, after a full discussion, upheld the trial court’s ruling, and affirmed a rather substantial judgment for appellee.

We believe, as stated in Chevrolet Co. v. Morphis, supra, and Eichel v. Railroad Co., supra, and in many of the authorities heretofore cited, that the injection of collateral matters, even though the jury may be instructed as to the limited purpose for which the testimony is admitted, might tend to complicate and confuse the issues of a trial. This confusing feature would be injected into any case, regardless of or perhaps even more so by reason of any special instructions to the jury as to the limited purpose for which the testimony might be considered, if collateral benefits are opened up, and the trial becomes complicated by determinations of other parties as to what constitutes disability, and complicated and confused by questions of how much the injured party is receiving from collateral sources as the result of his disability. In such event it is quite likely that the true rights of the parties might become lost.

Appellant has failed to show that any of the offered testimony pertaining either to the application for social security disability benefits or the payments to appellee of such benefits constitutes an exception to the rule of exclusion of such evidence discussed above. The objections to such evidence were properly sustained and the evidence offered was properly excluded.-

We have carefully considered all points made by appellant in its briefs concerning the admissibility of the excluded evidence and we find no cause to reverse this judgment by reason of the trial court’s rulings.

Judgment affirmed.


author: PHILLIPS, Justice.

text:
    CHIMNEY ROCK NATIONAL BANK OF HOUSTON et al., Appellants, v. STATE BANKING BOARD of Texas et al., Appellees.
    No. 11192.
    Court of Civil Appeals of Texas. Austin.
    March 4, 1964.
    Rehearing Denied March 25, 1964.

      Baker, Heard, Elledge & Watkins, Lowell B. Hays, Houston, for appellant.
    Waggoner Carr, Atty. Gen., Joe R. Long, Asst. Atty. Gen., Austin, Butler, Binion, Rice & Cook, Frank J. Knapp, Houston, Hart & Hart, Austin, for appellee.
   PHILLIPS, Justice.

This case involves the validity of a charter issued to the Post Oak Bank of Houston, Texas by the State Banking Board of Texas.

The hearing before the State Banking Board on the application for the charter was held in November, 1962. At the conclusion of the hearing the Board by a majority vote approved the application. Chimney Rock National Bank also of Houston, and others brought suit in the District Court of Travis County against the State Banking Board and its members protesting the granting of the abovementioned charter and seeking to set it aside. The plaintiffs alleged that they had protested the granting of the charter and that they were entitled to a de novo trial in the Court of the issues determined by the State Banking Board based on the preponderance of the evidence. In the alternative they asserted that certain of the Board’s determinations were not supported by substantial evidence. The defendant State Banking Board and its members filed pleas in abatement and an original answer. Later, the applicants for the charter of the Post Oak Bank filed a petition in intervention, asserting their interest in upholding the order of the State Banking Board granting their application.

The case went to trial in April, 1963 before the Court without a jury. The Court announced at the beginning of the trial that he would carry along the question as to whether the case should be tried under the substantial evidence rule or the preponderance of the evidence rule. The case took more than two weeks to try, the statement of facts consisting of three volumes containing 1497 pages of testimony.

The Court held that the action of the State Banking Board approving the application for the charter for the Post Oak Bank was supported by substantial evidence and also by the preponderance of the evidence and the Court rendered judgment upholding the Board’s order.

We affirm the judgment of the Trial Court in that there was substantial evidence to support the order. Chemical Bank & Trust Company v. Faulkner, Tex., 369 S.W.2d 427.

The Chimney Rock National Bank and the others who attacked the Board’s order, the appellants in this Court, maintain that the sole question before this Court is one of law as to whether or not the findings and conclusions of the State Banking Board of Texas (1) that a public necessity exists for the proposed Post Oak Bank and (2) that the volume of business in the community where the Post Oak Bank is to be established is such as to indicate profitable operation of the proposed bank, are reasonably supported by substantial evidence. These are two of the requirements among others that are not contested here that must be met under Article 342 — 305, Vernon’s Ann. Civ.St. in order for the Banking Board to issue a charter.

The Supreme Court has held recently in the Chemical Bank & Trust case, supra that the validity of charters issued by the Banking Board are to be tested under the substantial evidence rule. It is not the prerogative of the courts to substitute their judgment for that of the Banking Board where evidence admitted before the Court preponderates against the administrative decision. Nor is it the duty of the courts to affirm such action where there is merely some evidence to support the decision. The test is whether the action of the Banking Board from consideration of the entire record in the case as that record was made in the Trial Court finds reasonable support in substantial evidence. Board of Firemen’s Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965.

The evidence that appellants offered before the Trial Court may be summarized as follows:

Chester H. Baker, Senior Banking Examiner for the State Banking Department of Texas, made an investigation in the area of the proposed bank, found no need for the bank in that it was his opinion the area was being adequately served by the banks already in the area. That the Post Oak center area was being adequately served by the Chimney Rock National Bank and the Highland Village State Bank, that the proposed bank would be detrimental to these banks from the standpoint of taking away deposits from those two existing banks. It should be noted at this point that the two last mentioned banks are generally considered to be the two banks in the general trade area of the proposed Post Oak Bank; however, the Highland Village State Bank is not a party to this suit. As to residential accounts, it was Mr. Baker’s opinion that the proposed bank would be no better situated, from the standpoint of serving the people of the area, than the existing banks.

Mr. Thomas E. Willier whom appellants describe as a nationally recognized traffic and business consultant stated that the existing banks were more accessible to customers in the designated trade area than the proposed bank. In this connection driving accessibility was compared with certain census tract maps that appellee offered in evidence to show that areas included within a five minute driving time from the proposed bank location are from areas now fully developed or have reached their ultimate in population. That much of the area included within the ten minute driving zone of the proposed bank is area which has reached its ultimate residential population. Recent aerial photographs showing the area in question along with like photographs of downtown Houston were introduced to show the difference of population and building densities between the two areas. Also recent aerial photographs were introduced to show the vacant land in the area in question. Mr. Willier also testified that the several savings and loan associations in the area were in competition with the nearby banks.

Mr. Richard B. Johnson, whom appellants qualified as a banking and business expert, testified that for a bank to succeed in an area there must be at least five thousand families, preferably seven thousand five hundred; at least two hundred businesses, preferably three hundred and that this bank must be the only bank in the trade area. That the families involved should at least be middle income families. That guaranteed the above conditions, a bank can expect to realize only 40% of the business potential. That according to figures furnished by appellants there were-6934 families or dwelling units within a 1%. mile radius of the proposed bank location-That in addition there are the two competing banks mentioned above within this same-trade area. That the merchants in the area have their principal stores and bank accounts in downtown Houston and further contended that none of these merchants-would move their accounts to the proposed: new bank.

Mr. Johnson further testified that he had secured the services of Louis and Bowles, a recognized firm of research consultants, to-conduct a residential and business survey to determine current banking affiliations of' the residents and businessmen in the area to-determine a need for and a probable use of the proposed bank. The results of this-survey showed that the banks in the area, rely on the area for business; that there was a lack of a “felt need” for a bank; there was lack of a “likelihood of use” of a. new bank; that fewer than six hundred families in the area would use the proposed', bank.

Mr. Johnson further testified that he-supervised a “lobby card survey” which consisted of distributing cards in several banks in the area. These cards contained blank spaces for certain information which people who might be in the banks containing the cards could fill out or not as they saw fit. These cards inquired as to the adequacy or inadequacy of the existing banks in the-trade area and as to whether or not the-person filling out the lobby card would use the new bank. Only 5.8% of the people-filling out the cards thought the existing service inadequate and would use a new bank.

Mr. Johnson testified from postal zone maps that had been introduced into evidence to the effect that the area that would allegedly be served by the new bank was now-being adequately served by the banks already in the area. In this regard he testi-lied that the hanks already in the area depended greatly upon their customers’ use of their deposit accounts and would be damaged through the loss of a substantial number of these accounts as they rely heavily on these service charges for hank income. That the banks in the area have either not reached the desired rate of return on their invested capital or are now only experiencing adequate earnings; that the banks in the area are relying too heavily on service charges for income and too little on .other sources of banking income and that :the loss of any accounts and deposits by further competition would harm the already -existing banks. That the ratio of capital .accounts to total assets of banks in the area is low by comparison with the same ratio of other banks in the same Federal Reserve District. That the proposed bank would work a “critical attrition” against both the Chimney Rock National Bank and the Highland Village State Bank.

Appellees’ testimony offered in defense of the order is summarized as follows:

The testimony of Mr. George A. Butler, .a Houston lawyer, long prominent in legal .and banking business was offered. Mr. Butler has practiced law in Houston since 1925 where his practice has been primarily in •connection with banking and finance. He -was a member of the Board of the National Bank of Commerce, one of the largest 'banks in Houston, from 1933 to 1956. During the time he was on the Board of Directors, the National Bank of Commerce grew in deposits from 15 to 16 million dollars to .350 to 400 million dollars.

Mr. Butler was the organizer and has been a Director, President and Chairman of •the Board of the Bank of Texas ever since its organization some six years prior to the trial of this case. The Bank of Texas is lo- ■ cated in downtown Houston within a few 'blocks of the older, major banks in Houston. "This bank was opened in January, 1957. Mr. Butler testified as to how he personally -selected the personnel of the new bank and -directed its policies. Within six years the Bank of Texas has grown so that its deposits now total about $47,700,000. Mr. Butler has also served on the Boards of Directors of other well known corporations.

Over a period of two months during the summer of 1962, Mr. Butler visited each morning all of the businesses in the area of the proposed new bank explaining his plan for the new bank to sales people, managers and-owners. He testified to an “enthusiastic reception”-and “they all felt like they needed a bank there.” Speaking of people who had substantial investments in the community, Mr. Butler found that they thought “there was a real need, a real necessity and a real convenience for a bank.”

It was then decided to go ahead and organize a bank with an initial capital of $1,000,000.00. There was a substantial over-subscription of the capital stock. Of the 130 stockholders, 80 of them either work, have a business, own property, or reside within the business area of the proposed bank. Out of the 50,000 shares constituting the capital stock of the bank, 36,000 shares are owned by people in the area. Over 30 of the prominent stores within the area are substantial stockholders. Mr. Butler named a few which he characterized as “household words” in Houston, viz., Wein-garten, Oshman’s Sporting Goods, Krupp and Tuffley, Station KPRC TV, Sakowitz, Everett-Beulow Ladies Ready to Wear, Smart Shop, Vogue’s Shoe Store, Palais Royale, Rice Food Market, Esther Wolfe, among others.

Mr. Butler testified that the directors of the proposed bank show a net worth in excess of ten million dollars and in his opinion represent the finest in Houston’s business activity, and their judgment about the proposed bank would be as good as anyone he knew.

Mr. Butler also testified in great detail as to the private residence and apartment house developments in the area. In addition, Butler testified that in his opinion there was a need for the bank in the area; that the opportunity for building the proposed bank is the greatest opportunity in Houston outside of downtown Houston; that in five years it would be the greatest suburban bank in Houston; that he had greater hopes for it as a growing bank than he does for the Bank of Texas whose growth he believes phenomenal; that the area in question is the greatest concentration of business outside of downtown Houston and will be many times larger in the next five to ten years.

Appellees next presented the testimony of Mr. Francis Scott Yeager who qualified as an expert in business and finance. This testimony was to the effect that the proposed bank is to be located in Houston, a city which over the past twenty years has had an unequalled history of dynamic growth and expansion; that the access to the specific trade area has been greatly improved by the construction of expressways, the widening of existing streets, the elimination of traffic bottlenecks and by the opening of new roads. Yeager testified in considerable detail as to the growth in the land area in the City of Houston, the growth in location and number of schools established on the southwest part of the City of Houston from 1950 to 1962, the growth in population in the different census tract within the trade area of the proposed bank in the southwest section of Houston from 1940 through 1963 and the estimated ultimate population of each of these census tracts, the area of undeveloped land within the vicinity of the proposed location which is available for future development and the building permits issued within the last three years in the different census tracts within the trade area of the proposed bank.

Yeager testified from numerous photographs introduced into evidence which disclose an area of extraordinary economic prosperity with the very highest quality of commercial and residential construction, showing the development of a community equal in size and in number and variety of facilities to many independent cities.

Yeager further testified that bank deposits for Harris County as a whole had doubled between 1951-1962 and for the same period the bank deposits for the southwest part of Houston had increased more than sixfold. That in 1959 the median income for all of Harris County was $5,900.00 while the median income for that same period for the different census tracts in the trade area were respectively, $13,329.00, $13,744.00, $20,093.00, $18,586.00, $21,102.00,, $8,620.00 and $6,848.00.

Yeager pointed out that there is a unity between the way that the Freeway System was planned and the way long range investments are made for a large number of projects. That a wide variety of projects are related to the Freeway System as a whole so as to bring about a qualitative change in the City of Houston which is not reflected in mere population growth figures or any kind of numerical figures. That it is a change in the whole character of the town by reason of the town becoming so large in land area and population and so adjusting by creating the Freeway System. That this is a sudden change in Houston that it is a permanent change and that the City is still in the process of adjusting to it.

Yeager testified that in his opinion there was a need for a bank in the proposed area and that if allowed, it would be a profitable operation.

Mr. Jacob Oshman is one of the appellees and was a witness at the trial. Mr. Oshman has lived in Houston for thirty two years. He is in the sporting goods business and opened his first store in Houston in 1931. He now has a downtown store on Main Street in Houston and five other retail stores in the Metropolitan area of Houston as well as one in Austin. He has recently opened a store in the vicinity of the proposed new bank having moved this store from a previous location in Highland Village because the new location is superior to the former location in quality and potential for future growth. That the move has been justified is that the volume of business has increased by more than fifty percent.

Mr. Oshman is one of the merchants in the proposed area for the new bank and lias agreed to buy a thousand shares in the new bank. He stated that on his experience and knowledge of the area and of bis knowledge of business generally, it was bis opinion that a bank at the proposed location would be of great service to the merchants of the area and to the customers who patronize the businesses in the area. That such a bank will aid in the development of the shopping center as a fully integrated and complete suburban center. He stated that in his opinion the bank was "vitally needed” and that there would be sufficient business in the community for the profitable operation of the bank. He also stated that he would like to get more of the stock in the bank if he could.

Mr. Ralph Rupley, also one of the ap-pellees, testified that he has lived in Houston since 1900. He has been engaged in the retail fur business in Houston for forty years. He has been President and Director of the Houston Retail Merchants Association, a Director of the River Oaks Bank in Houston, a Director of the Commercial State Bank of El Campo and a stockholder and director in corporations engaged in investing money and in developing real estate in the Houston area. He has been particularly acquainted with the southwest section of Houston and its recent development. He has purchased property in the vicinity of the proposed bank and has opened a store there. He has personally subscribed for 500 shares of the stock of the Post Oak Bank and three other members of his family have subscribed for 100 shares each. He is one of the Directors of the Post Oak Bank.

In the light of Rupley’s experience as a business man and with his knowledge of real estate and development in Houston, it is his opinion that the Post Oak Area is an “ideal location” for any type of business or bank. Mr. Rupley discussed in detail the development of the area describing the Sakowitz Store, the Joske Store, and his confidence that there would be a sound and continued development of the area of a very high quality. Mr. Rupley further expressed the opinion that there is sufficient business in the community to make for the profitable operation of a bank at the proposed location and that “currently there is a good deal of retail activity in that area which needs banking.”

Dr. John R. Stockton testified for ap-pellees. Stockton is a Professor of Business Statistics at the University of Texas and Director of the Bureau of Business Research at the University. In addition he is a Director of the San Antonio Branch of the Federal Reserve Bank. Stockton testified extensively as to the merits of the various polls presented into evidence by the appellants herein and summarized above in this opinion. His conclusion was that the value of the polls was extremely doubtful and could not be properly used as the basis for making any decision as to whether a bank was needed.

It is interesting to note that through appellants’ witness Johnson that the volume of deposits for the banks in the general area (as distinguished from the immediate trade area in question) was as follows: Spring Branch State Bank, $12,700,000.00; Highland Village State Bank, $12,237,000.-00; Chimney Rock National Bank, $10,-541,000.00; River Oaks Bank and Trust Co., about $19,000,000.00; First State Bank of Bellaire, $19,400,000.00; American Bank and Trust Co., $14,400,000.00; Fannin Bank, in excess of $40,000,000.00; University State Bank, slightly over $24,000,-000.00. That 79% of the total banks by number in the United States today have a volume of deposits of less than $10,000,-000.00.

There are no cases in Texas wherein the public necessity requirement or the volume of business necessary to indicate a profitable operation requirement of Art. 342 — 30S have been defined.

In Moran v. Nelson, 322 Mich. 230, 33 N.W.2d 772, the Supreme Court of Michigan reversed the Banking Commission of that State and ordered the charter granted under a banking statute that required the Commission to be satisfied as to the necessity for such bank and the likelihood of its successful operation.

The court in the Moran case said that any one, exact definition of necessity would be futile. That necessity does not mean an “absolute need” or “economic need.” New banks provide additional banking capital for the community which results in greater diversity of competitive banking facilities. That necessity does not mean that existing banks are not meeting the present banking necessities. Such a restriction would not be conducive to healthy banking conditions. In this connection, the court quoted from the Minnesota Supreme Court in State ex rel. Dybdal v. State Securities Commission, 145 Minn. 221, 176 N.W. 759:

“It (the governing statute) does not intend that one or more established banks may keep out another because the banking facilities sufficiently take care of the banking business. Its purpose is not to deter competition or foster monopoly, but to guard the public and public interest against imprudent banking.”

The court in the Moran case-held that “mere convenience” was not enough to satisfy the statutory requirement but when supplemented by proof of facts and circumstances which are persuasive of necessity, it is proper to take into consideration testimony as to the element of convenience.

The Michigan Court found the proposed new bank to be necessary even though it was to be located in close proximity to strong and long-established banks in downtown Detroit and even though such banks were rendering a complete banking service. The court pointed out the rapid growth of the population in Detroit and the substantial growth of all of the banks-in the Detroit area during the past few years. The court also referred to this-evidence to show probable successful operation of the proposed new bank stating that the facts and circumstances bearing upon necessity also bear, to some extent,, upon successful operation.

We approve the holding in the Moran case and the reasoning quoted above. The requirements of the Michigan statute concerning necessity and probable successful operation are substantially the same as the requirements in Art. 342 — 305 V.C.S.

There was ample evidence from which the Trial Court could have upheld the order of the Banking Commission.

The City of Houston has had a phenomenal growth. From 596,000 inhabitants in 1950 it increased to an estimated 890,000 in 1957 to 938,000 in 1960, to 984,000 in 1962, and to 1,014,000 in 1963. In addition to the general growth of Houston, appellees presented detailed. evidence of a continuing growth in population in the area for the proposed new bank comprising a general class of residents whose mean annual income is some three to four times-the average annual mean income of Houston as a whole. This evidence was supplemented by extensive photographs of high-grade residential developments and apartment complexes already existing in the area.

In addition to the residential development of the area, appellees went into detail as to the business establishments in the immediate area in question, pointing out the numerous businesses already located and those building or to be built in the immediate future. These are not all new businesses but in many instances are branches of well-established, successful Houston businesses whose newly located branches in the area are as large or nearly as large as their parent establishments in ■downtown Houston.

Appellees introduced evidence as to the extensive new freeways servicing the area along with other newly completed feeder arteries which they contend will facilitate further development of the southwest quadrant of the sprawling city resulting in a ■change of the whole character of the town. That these new traffic lanes are bringing about such a change because of the fact that the City of Houston has become so large in land area as well as in population.

This type of evidence is pertinent in showing a necessity for the bank as ■contemplated by the statute. As to growth in an area to be served by a proposed new bank being valid evidence in upholding the granting of a new bank charter, see Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183 (Mo.App.1959).

It should be pointed out that while appellants contend that appellees had no ■direct evidence as to the amount of new accounts that would be brought to the proposed new bank, of the 130 stockholders, 80 of them either work, have a business, own property or reside within the business area of the proposed bank. Out of the 50,000 shares constituting the capital stock of the bank, 36,000 shares are owned by the people in the area. It is reasonable to infer that a good percentage of these stockholders will place all or a portion of their business and personal accounts with the new bank. In view of this situation, coupled with the expanding nature of the area, detailed evidence of accounts definitely available is not necessary.

Certainly the enthusiasm with which the proposed stock offering was met and the promptness with which it was subscribed, coupled with the financial standing and proven business abilities of the directors and principal stockholders, is good evidence for the need and probable success of the proposed venture.

Evidence presented by appellants as to the harm a new bank would cause those nearby banks already in existence showed no greater harm than any newly competing business will naturally inflict upon its neighbors in a similar enterprise. This evidence did not show any possible harm of such a nature as to endanger existence of the nearby banks. On the contrary, the evidence shows that the banks now in existence are in a healthy financial condition and are expanding. This evidence adds up to the fact that there will be nothing more than greater competition in the area. That this could have a beneficial effect of bringing new capital into the area for further expansion and for greater diversity in competitive banking facilities. These are positive factors to be considered in attempting to define necessity under the statute.

As stated in the Moran case, above, it is very difficult to differentiate between the proof required to show necessity for a bank and that required to show the volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank. Certainly much of the evidence applicable to the former is equally applicable to the latter. However in connection with whether or not profitable operation can be expected, the qualifications of stockholders such as Butler, Oshman, Rupley and the others, their known successes in financial operations comprising many decades (many of these operations consisting of successful ventures in banking) is certainly good evidence that the proposed venture will succeed.

Under the facts of this case we hold that the mere sufficiency of existing •banking facilities, in the sense of some facilities more or less appropriately located in area and furnishing the usual •gamut of services, is not in and of itself sufficient basis to deny establishment of the proposed bank where the general economy of the area and its reasonable potential are such that there is room for further installation without causing excessive competition with real harm to any nearby banks now existing or unduly affecting banking structure at large. In addition, we hold that there was substantial evidence to uphold the action of the Banking Board in finding, in addition to the other requirements of the statute, that a public necessity exists for the proposed bank and that the volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank.

The judgment of the Trial Court is affirmed.

Affirmed.

      . Tlie remaining appellants all located in Houston are: University State Bank, River Oaks Bank and Trust Company, American Bank and Trust Company, First State Bank of Bellaire, Fannin Bank and Bong Point National Bank.

      . Intervenors are William H. Levy, E. Joseph Wolf, Ralph Rupley, L. E. Tuffley, Jack Harris, William T. Keenan, Robert H. Singleton, J. S. Oskman, Robert L. West, Cecil N. Cook, Louis Leon, George A. Butler and Tom A. Anderson.