author: DICE, Commissioner. McDonald, judge.

text:
    Samuel E. MERWIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34096.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    Rehearing Denied March 14, 1962.
    Richard Bird, Childress, McCarthy, Car-nahan, Fields & Haynes, Amarillo (George S. McCarthy, Amarillo, of counsel), for appellant.
    John T. Forbis, Dist. Atty., Childress, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, two years.

The State’s witness, Ruth Ware, operated a beauty shop in the City of Turkey in Hall County which was located in a building adjacent to a building occupied by the West Texas Utilities Company. On the night of March 10, 1961, the witness who lived in the back of the building heard a noise, around 1 A.M., coming from the Utility Company building which sounded like a hammer hitting metal. She thereupon called Deputy Sheriff Clyde Rogers. In response to the call Deputy Rogers went to the Utility Company building, around 1:20 A.M., and discovered that it had been broken into and burglarized. A screen door in the back of the building was slit and the door jammed. The company’s safe was lying on its back on the floor with the door beat off. The safe had been removed from the front to the back of the building and the sum of $52.15 in money was missing therefrom.

After discovering the burglary, Officer Rogers called the sheriffs of the surrounding counties, including Sheriff Johnny Lan-ham at Silverton in Briscoe County, and reported the burglary.

At 2:15 A.M., Sheriff Lanham stopped an Oldsmobile automobile ¾½ miles east of Silverton in Briscoe County, at the intersection of Highways 86 and 256, as it was traveling in a direction away from Turkey. Appellant and three companions were occupants of the automobile and were placed under arrest by Sheriff Lanham. The automobile, which belonged to appellant, was then searched by Sheriff Lanham at the scene and later after it was driven to Sil-verton.

In the search Sheriff Lanham found a coat lying on the seat with some money in a pocket, consisting of change and bills; a loaded gun in the glove compartment; two wrecking bars and a sledge hammer; two pairs of gloves; a white purse and a handbag containing several items, including some keys, a flash light and a pair of pliers.

A substance removed from the blade end of one of the wrecking bars which had been broken, upon being examined by Chemist and Toxicologist Leslie C. Smith of the Department of Public Safety, was found to be fire clay similar to a sample of fire clay taken from the door of the safe. A substance taken from the trouser cuff of one of appellant’s companions was also examined by the Chemist and found to be fire clay similar to the fire clay removed from the safe door. Chemist Smith-testified that a spectrograph examination of the three samples of fire clay disclosed that they were all made up of the same base elements and expressed the opinion that they came from the same batch of fire clay, each batch being almost as individual as a mixture of concrete, there being variations between the various batches.

Appellant did not testify or offer any evidence in his behalf.

The court submitted the issue of appellant’s guilt to the jury upon a charge on circumstantial evidence and upon the law of principals and we find the evidence sufficient to sustain their verdict.

Appellant’s sole contention on appeal is that the search of the automobile, without a search warrant, was illegal and that for such reason the court erred in admitting, over appellant’s objection, the evidence showing the search of the vehicle and the results thereof.

While the record shows that the search was without a search warrant, Sheriff Lanham testified that before searching the automobile, “ * * * I told them I wanted to search the car, and they said, ‘Okay’.”

From the Sheriff’s testimony which was undisputed, it appears that consent was given by appellant to the search of the automobile.

Appellant, having consented to the search, waived the necessity of a search warrant and is in no position to complain of the search. Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301; Ellithorpe v. State, 167 Tex.Cr.R. 266, 320 S.W.2d 350 and Sharp v. State, Tex.Cr.App., 338 S.W.2d 461.

The judgment is affirmed.

Opinion approved by the Court.

On Appellant’s Motion For Rehearing

McDonald, judge.

Appellant reurges the contention that his arrest and the search of his automobile without a warrant was illegal and insists that we were in error in holding that consent was shown to have been given for the search.

Appellant also points out that the fire clay taken from the trouser cuff of his companion was not obtained in the search of the automobile but was obtained later after appellant and his companions had been taken to Silverton and were being detained under what appellant insists was an illegal arrest.

Under the holdings of this Court, appellant is in no position to complain of the search of his companion, as this is a right which is vested only in the companion. Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829 and Tunnell v. State, 168 Tex.Cr.R. 358, 327 S.W.2d 590.

We have again reviewed the record and remain convinced that consent was shown to have been given to the search of the automobile and that the evidence is sufficient to sustain the conviction.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: DICE, Commissioner. BELCHER, Commissioner.

license: Public Domain

text:
    Bobby Louis STEIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34014.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Rehearing Denied March 14, 1962.

      Jack W. Knight, Houston, W. E. Martin (on appeal) Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The State’s evidence shows that the deceased operated a liquor store in the City of Houston. On the night of New Year’s Eve, December 31, 1960, appellant and a companion, George Sullivan, went to the liquor store shortly before 10 P.M., to purchase some liquor. While they were in the store, a shot was fired and the two ran outside and fled. Appellant was carrying two bottles of whisky. After the shot was fired the deceased staggered from the counter and fell mortally wounded with a gunshot in the neck. The deceased’s wife, who was present, upon hearing the shot observed a gun in the appellant’s hand and identified appellant the next day at a police lineup as the one who shot her husband. She stated that just before the shot was fired, Sullivan tried to pull her from the doorway where she was standing into the store. Appellant was arrested on the night of the killing, around 1:55 A.M., and on the afternoon of January 2nd, accompanied the officers to his home where they recovered a 38 caliber pistol from a trash can, which appellant admitted was the pistol with which he shot the deceased. Ballistics tests showed that a bullet recovered from the body of the deceased had been fired from the appellant’s pistol. Later in the afternoon of January 2nd appellant, after being duly warned, made and signed a written confession to Officer D. M. Fults at 3:20 P.M., in which he stated that on the night in question he went to the deceased’s liquor store with George Sullivan to purchase some liquor and that while in the place, he (appellant) shot the deceased. The confession, omitting certain portions, was introduced in evidence, without objection, as State’s Exhibit No. 4. The State also introduced in evidence without objection, as State’s Exhibit No. S, a written statement made by George Sullivan in which he recited how he and the appellant went to the liquor store to purchase whisky and while in the store he heard a shot and when he looked up he saw a gun in appellant’s hand. On April 21st, appellant, after being duly warned, made and signed another statement in which he admitted shooting the deceased on the night in question, but stated that the reason he and Sullivan went to the store was to rob the place. This later statement was introduced in evidence, over appellant’s objection, as State’s Exhibit No. 6.

Testifying as a witness in his own behalf, appellant admitted going to the liquor store on the night in question, but denied that he went inside and shot the deceased. Appellant stated in substance that it was Sullivan who entered the store and shot the deceased. He also repudiated his two confessions and testified that the statement in the confessions that he killed the deceased-was not true. Appellant swore that the reason he made such statement to the officers was to take the “rap” because of Sullivan’s bad record. He further testified that the reason he signed the statement ■of April 21st was because a lieutenant at the police station told him if he would sign the statement the court would be more lenient with him and he would not get the chair.

Both Lt. Belcher, the officer to whom the statement was made, and Lt. Clark, who was present at the time it was made, denied making any such statement or promises to appellant.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals; gave application to the provisions of Art. 42, Vernon’s Ann. P.C., by instructing the jury that if appellant, while in perpetration of a robbery, through mistake or accident did kill the deceased, he would be guilty of murder with malice and submitted to the jury the question as to the voluntary nature of appellant’s written statements introduced in evidence.

We shall discuss the contentions urged by appellant in his brief and in oral argument.

Appellant’s first claim of error is that the State tendered to him in the presence of the jury the accessory, George Sullivan, and repeatedly challenged appellant to place Sullivan on the stand as'a witness.

The record reflects that appellant first called Sullivan as a witness and the State objected, on the ground that: “He is under indictment in this case and is not a competent witness.” The objection was sustained. Thereupon, the jury was retired and in their absence appellant offered in evidence a certified copy of an indictment which charged Sullivan as an accessory after the fact to the offense of murder for which appellant was on trial.

Later in the trial, State’s counsel announced: “At this time we will withdraw our objection to Mr. Knight calling George Sullivan to testify,” to which appellant objected on the ground that the State was challenging him to call the witness which he was barred from calling and moved for a mistrial. The court instructed the jury not to consider the remark of State’s counsel and denied the motion for mistrial.

Art. 711 C.C.P. and Art. 82 P.C. which provide, in effect, that one charged as an accessory cannot be introduced as a witness in behalf of the defendant charged as a principal, further provide in effect that the principal may claim a severance, and if the accessory be acquitted or the prosecution be dismissed, the accessory may testify.

This Court has held that these statutes must yield to Art. 81 P.C. providing that if the principal is arrested he shall be tried first, and one charged as a principal is not entitled to have one indicted as an accessory to his alleged crime tried first. Williams v. State, 27 Tex.App. 466, 11 S.W. 481; Sewall v. State, 67 Tex.Cr.R. 105, 148 S.W. 569.

When State’s counsel withdrew his objection to Sullivan testifying, the witness could have then been called by appellant to testify as if no objection had been made. We perceive no reversible error in the action of State’s counsel in withdrawing his objection to the witness testifying.

Nor do we agree that State’s counsel committed reversible error in his jury argument when he referred to the fact that the State had withdrawn its objection to Sullivan testifying and told the jury that appellant’s counsel could have placed Sullivan on the stand if he so desired. Such statement was supported by the record,' although the court did sustain appellant’s objection thereto and instructed the jury not to consider the same. Furthermore, in his argument to the jury, counsel for appellant criticized the State for not calling Sullivan as a witness and told the jury that under the law appellant could not call him. The argument of State’s counsel appears to have been invited by that of counsel for appellant. Wall v. State, 156 Tex.Cr.R. 239, 240 S.W.2d 763.

After appellant’s counsel in his jury argument had inferred that the maximum punishment which Sullivan could receive was two years, State’s counsel made the following objection: “We object to that. He is being tried for murder.” Appellant objected to counsel’s remark and moved for a mistrial. In response to the objection the court instructed the jury not to consider the remark of State’s counsel and denied the motion for mistrial. We find nothing in the remarks of State’s counsel with reference to Sullivan being tried for murder which was so obviously prejudicial that its effect upon the jury could not be removed by the court’s instruction not to consider the same.

Appellant next insists that State’s counsel committed reversible error in his jury argument when he stated: “While we are talking about George Sullivan, there was no objection to this statement and it was introduced in evidence but we proved that George Sullivan made a second statement * * * ” Appellant insists that such remark presents reversible error notwithstanding the court’s instruction to the jury not to consider such statement because it was not shown that Sullivan made a second statement. Our examination of the record reflects that the State did show, by the witness Evans, that Sullivan made a second written statement on April 21st, but that the same was not introduced in evidence. The contention is overruled.

Appellant insists that the court erred in charging on the law of principals because appellant’s companion, Sullivan, was under indictment as an accessory to the crime and therefore could not be a principal to the murder. Appellant cites no authority in support of his contention. The fact that Sullivan was under indictment as an accessory to the murder did not foreclose proof by the State that appellant and Sullivan acted together as principals in the commission of the offense. Under the State’s evidence showing that Sullivan was present and participated with appellant in the killing of the deceased, the court correctly charged the jury on the law of their acting together as principals.

Appellant’s last contention is that the court erred in admitting in evidence his second confession made on April 21st,, because the same was taken after his indictment and without presence of his counsel. When offered in evidence, appellant’s only objection was on the ground that the second confession was contrary to the State’s theory, as shown by his first confession, that he did not go to the liquor store to commit robbery and was therefore in impeachment of the first confession. While appellant gave two different reasons in the confessions as to why he went to the liquor store on the night of the killing, in each confession he admitted shooting the deceased. The confessions were not so contradictory as to render them inadmissible. Knobloch v. State, 151 Tex.Cr.R. 413, 208 S.W.2d 91. The second confession, having been taken in compliance with Art. 727, Vernon’s Ann.C.C.P., was properly admitted in evidence.

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

Opinion approved by the Court.

On Appellant’s Motion For Rehearing

BELCHER, Commissioner.

■ We have again carefully considered the record in the light of appellant’s contentions and remain convinced that it does not show reversible error.

Appellant’s motion for rehearing is overruled.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Eddie Douglas JONES et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34310.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    Hamah R. King, George Washington, Jr., Houston (Otis H. King, Houston, of counsel), for appellants.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawful assembly; the fine as to each of the 18 appellants was $100.00.

At most, the State proved that the 18 accuseds, some white and some colored, at least one of whom had in his possession a railway ticket entitling him to travel to the State of California, presented themselves at the Union Station restaurant in Houston, which would seat ninety-four patrons and was only partially filled and which was leased from four railroads engaged in interstate commerce and located in the Union Terminal building, with the only entrances opening into the terminal, and seated themselves at the counter and in booths. They were not served because there were members of the colored race among them. There was never any loud talking, noise, communication with other patrons in the establishment, or boisterous or unseemly conduct on the part of any of them. They stand convicted of an unlawful assembly denounced by our Article 449, Vernon’s Ann.P.C., as follows:

“If the purpose of the unlawful assembly be to prevent any person from pursuing any labor, occupation or employment, or to intimidate any person from following his daily avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by fine not exceeding five hundred dollars.”

In the past, this Court has pointed out what acts constitute a violation of this Act. See Ex parte Brachey, 142 Tex.Cr.R. 332, 152 S.W.2d 763.

We must now determine if, under the holding of the Supreme Court of the United States in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, the facts stated above constitute any evidence to support these convictions.

We have concluded that they do not, and a reversal of the conviction is necessarily called for. See also Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206, and Bailey v. Patterson, 82 S.Ct. 549.

The judgments are reversed and the causes are remanded.

WOODLEY, P. J., dissents.'


author: STEPHENSON, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Dolores M. WILLIAMS, Appellee.
    No. 6521.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1962.
    Rehearing Denied March 7, 1962.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Adams & Browne, Beaumont, for appel-lee.
   STEPHENSON, Justice.

Appellee recovered judgment based upon jury findings, for total and permanent disability, under the Workmen’s Compensation Act.

Appellant complains of the action of the trial court in admitting certain X-rays into evidence without proper identification, and then permitting a doctor to express an opinion based upon certain findings revealed by these X-rays. Dr. Charles Walker qualified as an expert in the field of radiology, and testified that he and Dr. Russell Catalano practiced together. He further testified as follows: that the X-rays in question were taken in their office June 18, 1960 and were made of appellee; that they were made under the supervision of their office by competent X-ray technicians, but he could not say whether they were made under his or under Dr. Catalano’s supervision ; that he did not recall the patient and did not give her a physical examination; that the X-rays bore the mark of their office and the date and the patient’s last name, and that no one else had that mark except their office; that each patient has a number and that the number on these X-rays corresponds with the number in their book and on the envelope; that these films were made in the regular course of their business as X-ray specialists. Appellee testified that X-rays were made of her body in the office of Dr. Walker and Dr. Catalano.

We are aware that the rules of evidence require the proper identification before X-rays may be admitted in evidence. It must be shown to some degree of certainty that such X-rays are made of the person’s body involved in such suit. We feel that there was sufficient evidence to safeguard the rights of the parties in this case, and guarantee to both appellant and appellee that the films were those of appellee’s body. The ap-pellee’s name, the date, the appellee’s number, the doctor’s mark, together with the testimony of the doctor that the X-rays were made in his office by competent technicians is sufficient proof to make such X-rays admissible in evidence. We do not believe that more protection would be afforded to a party to a suit for a doctor to testify that X-rays were made under his supervision by a technician in his office, than for him to testify the X-rays were made either under his supervision or that of his partner, by a technician. These points are overruled. United Fidelity Life Ins. Co. v. Holliday, Tex.Civ.App., 226 S.W.2d 139, is authority for this position.

This case was submitted to the jury on 13 special issues. The first 8 issues inquired as to the usual facts about an injury and as to total incapacity. Issues 9 through 13 inquired as to partial incapacity. Issue Number 9 was submitted unconditionally and asked if the appellee had sustained any partial incapacity. The jury reported to the court that they had reached a verdict, but an examination of the charge revealed that they had answered only the first 8 issues. The trial court gave the jury the following instruction:

“Ladies and Gentlemen of the Jury: You have not answered Special Issue No. 9. You will therefore retire and consider your verdict further.”

Appellant objected to this instruction on the ground that it gave undue emphasis to Special Issue No. 9 and amounted to a comment on the weight of the evidence, and suggested to the jury that the issue should be answered “no”. Appellant moved the court to instruct the jury that the verdict was incomplete and to return and deliberate further.

We do not believe the trial court s instruction was a comment on the weight of the evidence. This instruction did not indicate to the jury to answer the question “yes” or “no”, but only that the question should be answered. This was a proper instruction by the trial court. Traders & General Insurance Co. v. Davis, Tex.Civ.App., 209 S.W.2d 963, N.R.E. This is not a case in which a jury returned a verdict with conflicting answers, but is a case in which the jury had not answered all of the questions submitted to them by the court unconditionally. The court properly returned the jury for further deliberation with its instruction. McDonald’s Texas Civil Practice, Vol. 3, Sec. 15.03, p. 1264.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    LOCAL 100 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES et al., Appellants, v. H. N. BORDEN, Appellee.
    No. 15930.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1962.
    Rehearing Denied March 23, 1962.

      Mullinax, Wells, Morris & Mauzy and George Schatzki, Dallas, for appellants.
    Lyne, Blanchette, Smith & Shelton, Robert W. Smith, Dallas, for appellee.
   YOUNG, Justice.

This is a damage suit brought by Borden, appellee, against two unincorporated labor unions — appellant Local 100 and the parent body of similar name. Borden sought money damages both actual and punitive, for loss of earnings and mental anguish, arising out of allegedly wilful, malicious and discriminatory course of conduct of the two unions; same consisting of the refusal of the unions to treat appellee as any other union member and to refer him to a job offered him in the construction of the Republic National Bank Building. His suit is based on allegations involving both tort and contract.

This suit had been previously dismissed by the trial court on plea in abatement, and on appeal to this Court was reversed and remanded to the trial court for trial to the merits. On writ of error granted by our Supreme Court, the opinion of reversal was affirmed; it holding that a cause of action would lie if plaintiff “was willfully denied a job opportunity to which Lanham [the Local Union Business Manager], knew he was entitled under the rules and procedures established by petitioners for allocating work among their members, and that petitioners either conspired with Lanham to bring this about or otherwise authorized or ratified his wrongful conduct * * United Association of Journeymen, et al. v. Borden, 160 Tex. 203, 328 S.W.2d 739; see also 316 S.W.2d 458 for further background of case and conclusions of this Court.

The facts material to appellee’s claim of injury are generally outlined in the following summary of the numbered jury issues and answers: (1) that on or about Sept. 16, 1953 plaintiff Borden was promised a job on the Republic National Bank Building by the authorized foreman of the Farwell Construction Company; (2) that at a time when plaintiff was available for work, a call was placed by A. G. Thurman calling for plaintiff to go to work upon said Republic Bank Building; (3) that defendant Local Union 100 by and through its business manager Cleo Lanham, thereafter did not refuse to accept plaintiff’s clearance card from his local union in Shreveport, Louisiana; (5) that said defendant Local Union 100 wrongfully refused to let plaintiff work on said Republic Bank Building; (6) that such refusal was made at a time when said Cleo Lanham knew that under the rules of said local union plaintiff was entitled to work on said bank building; (7) that such refusal to let the plaintiff work on said bank building was not without any cause or reason whatsoever; (8) that with full knowledge of the conduct of Cleo Lanham concerning plaintiff, the officers and members of defendant Local Union 100 approved such conduct; (9) that had plaintiff been allowed to work on the Republic Bank Building from Sept. 15, 1953 to Sept. 15, 1954 he would have earned $5,856; (10) plaintiff earned, or by use of reasonable diligence, could have earned during same period the amount of $3,940; (11) that plaintiff, by being denied the Republic Bank job opportunity, suffered mental anguish; (12) which was proximately caused by defendants Local Union 100; (13) reasonable compensation for the mental anguish suffered was $1500; (14) that plaintiff should be awarded $5,000 as punitive damages against defendant Local Union 100; (15) that plaintiff, after having been refused the job opportunity to work on the Republic Bank Building, did fail to pursue his grievance within the rules and procedures of said Local Union 100 that were available to him; (16) that plaintiff voluntarily accepted other work in October 1953 upon referral from defendant Local 100 without complaint; (17) but that plaintiff did not acquiesce in defendant Local 100 actions; (19) plaintiff did not fail to apprise defendant Local 100 of his complaints; (22) that it would have been useless for plaintiff to have pursued his complaint within the rules and procedures of the defendant Local 100.

In this connection the court overruled the motion for summary judgment of Local Union 100 seasonably filed and carried along to close of evidence; also its motion for judgment on the verdict; and in the alternative, its motion for judgment non ob-stante veredicto. Plaintiff’s motion to disregard jury answer to issue No. 7 and for judgment on remainder of the jury verdict was sustained; holding however that in a suit of this type the issue of mental anguish was not raised and should not have been submitted; also that the amount of the punitive damages so found was excessive; and that plaintiff should be required to reduce the punitive damages to an amount not exceeding the actual damages sustained, or a total judgment of $3,832 to which plaintiff duly excepted, defendant Local Union 100 likewise excepting to all of above adverse rulings. A peremptory instruction had been given in favor of the parent union to which plaintiff duly excepted.

Appellant again asserts exclusive application of 29 U.S.C.A. § 151 et seq., (Taft-Hartley Act) to this lawsuit.

In this plea to the jurisdiction it is argued that answer to issue No. 5 — wilful refusal of defendant Local Union 100 through- Lan-ham that the plaintiff work on said Republic Bank Building — constituted an unlawful labor practice within provisions of Section 158(b) which reads: “It shall be an unfair labor practice for a labor organization or its agents * *' * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of sub-. section (a) (3) of this section * * The material part of subsection (a) (3) of § 158 reads as follows: “It shall be an unfair labor practice for an employer— * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : * * *.”

The suit of Borden as already stated was based on both contract and tort. Even if Borden be considered an employee, which appellee denies, Farwell Construction Company, the contractor and employer, was not a party to the suit and there is no evidence that it practiced any discrimination against Borden or treated him anywise different from other employees. He was simply offered a job and requested to obtain a referral from Local Union 100 as were all other employees of Farwell. By plain wording of the Act, the discrimination must be limited to purpose of encouragement or discouragement of membership in the union and plaintiff was already a member. This is a suit for wrongs allegedly committed against plaintiff by arbitrary conduct of Local Union 100; and as held in International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, the Labor Management Relations Act does not displace state court jurisdiction over suits to determine and enforce rights of union members in their union. In the cited cases it is stated: “But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The proviso to § 8(b) (1) of the Act states that ‘this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * *.’ ” The point is again overruled.

Appellants’ further points should now be stated: Of court error; (2) because Lanham had no duty to refer Borden to the job site as requested; (3) because the denial by Lanham of a referral was not the cause for Borden’s failure to obtain employment at the Bank site; (4) because the union was not responsible for Lanham’s acts; (5) in admitting into evidence inflammatory, irrelevant and incompetent evidence; (6) because the finding of Thurman’s authority to hire was contrary to the great weight and preponderance of the evidence; (7) in not barring the plaintiff’s recovery because of his failure to exhaust remedies within the union; (8) in not finding that the plaintiff was barred from recovery by laches and/or estoppel; (9) in awarding punitive damages ; (10) in not setting aside the verdict and declaring a mistrial because the jury’s answer to Special Issue No. S contradicted and conflicted with the jury’s answer to Special Issue No. 7. All of above points were appropriately countered by appellee.

Local Union 100 is an unincorporated association of some 800 membership in 1954, plaintiff being a member of that union. Members of one Local of the parent association can transfer to any other Local if in good standing. A clearance card is a devise by which a home local certifies that a member is in good standing. When this card is presented to a local under whose auspices the member seeks to work, the member is in all respects transferred to that Local. A member may also commence work in a certain locality by placing a deposit with the Local Union and later securing his clearance card.

A résumé of material evidence bearing on all points and counterpoints (though generally disputed) is presented in the brief of appellee: that in mid-September 1953 Borden arrived in Dallas and called Jack Heath, superintendent for Farwell Construction Company. He had previously worked for this company in Galveston, being there told that he could work for said company on the Republic job site. On coming to Dallas Borden then presented his dues book to Lanham, business manager of Local Union 100; Lanham then telling him that he had come to Dallas “with a job in his pocket” and refused to accept Borden’s dues book, further telling him that he would never go to work on the Bank Building and that the best thing for him to do was to get out of town. It was undisputedly the uniform practice of Local Union 100 that in case a particular man was requested by a contractor, to send that man to work on that project- — -a practice, according to Galvin, successor to Lanham, that had been in effect during the eleven years of his connection with Local 100.

After this initial contact with Lanham, Borden returned to his home local at Shreveport, securing his clearance card and returning to Dallas, then seeking to present such card to Lanham. After several attempts, Borden found Lanham in a cafe across the street from the Union Hall and ■offered his clearance card. On return to the union office Lanham accepted the clearance card but told Borden “that don’t mean you are going to work by any means.” In the meantime, according to A. G. Thurman, foreman of the Bank project, Borden had called him, stating that he was in town, desiring a job and had placed a clearance card with Local 100, Thurman saying “if you get •a referral come on down” that he (Thurman) later called Lanham requesting that Borden be referred to the Bank project, to which Lanham replied “I am not about to .send that old S-O-B down there. He shoved his card down our throats and I am not about to send him to the Bank.”

Borden testified that continually thereafter he had requested employment on the Bank site but was continually denied work going on there from September 15, 1953 to September 15, 1954; and it is not disputed that plaintiff held himself available for work -on the bank job during all that time; in the interval, being referred to several other jobs 'by Lanham; that he had complained to Zeufeldt, business agent of the Union, also ■to several other members of the discriminatory treatment here alleged; further that in ■October 1953 at a general membership meeting, his complaint was discussed in the executive minutes of the union which were •then read; it being stated at that time and called to attention of the union that Borden was not referred to the Bank site because '“he came in here wrong” and would not be -■allowed to work there. There was further •.testimony that the executive minutes read at that meeting had been subpoenaed but reported lost while in possession of Zuefeldt, the business agent. There was testimony of Borden’s continued complaint concerning this discriminatory treatment, further evidenced by conversation with Galvin, the successor business manager, who after hearing Borden’s story, did nothing about the existing situation; that thereafter in October 1954 an executive meeting of Local Union 100 was held to consider plaintiff’s charges; that at such meeting the Executive Board had maligned Borden, telling him to quit complaining about the treatment he had received from the union, if not, they would expel him from the union and kick him out of Dallas; that the best thing he could do would be to “get out of Dallas”. As a result of his appearance before the Executive Committee, Borden said that he was thereafter in fear of bodily harm at the hands of said Union.

It is rather difficult to follow appellants’ argument that “Lanham had no duty to refer Borden to the job site requested” in view of its established policy, that once a request is made by an employer for a specific employee, that person is immediately referred to the job site. That this was the uniform practice is explicit in the testimony of foreman Thurman; he stating that in obtaining employees he would place calls with Local 100 which is “the end of my obligation in getting a man on the job”; further testifying that all employees hired by him came through the union office; answering “No, Sir” to the question “Have you ever hired anyone on the job except through Union referral, as is the custom here”; and the record as hereinabove narrated, in our opinion constituted sufficient proof that respondent was wilfully denied a job opportunity to •’which Lanham knew he was entitled to under the rules and procedures established by petitioners for allocating work among their members. Supreme Court 328 S.W.2d 739.

With respect to point three, the referral of plaintiff to the Bank site for work at request of Thurman was in accordance with above union custom, refused by Lanham, with resulting injury to plaintiff. A direct solicitation of the job by him would have been in violation of union rules, Art. 1, § 30, providing: “Members shall not solicit work from any contractor or their representative. All employment must be procured through business office of Local Union 100. Violations of this Section subject to assessment of not less than Five Dollars ($5.00). * * *

Appellant argues the lack of evidence of any responsibility on part of the union for the acts of Lanham, the jury having found that with full knowledge of the conduct of Lanham, “the officers and membership of defendant Local 100 approved such conduct” (issue 8). We think that record testimony already stated raised the issue. Zuefeldt, the business agent, also Galvin, successor to Lanham, testified to Borden’s complaint of discrimination. B. C. Hall, had testified to attendance upon a business meeting of the union in October 1953 (the minutes of which were later lost) at which time Borden’s case was discussed, it being stated that he “came in wrong and that plaintiff was not going to get the requested job because they (the union) weren’t going to refer him to the job.” Although no action was there taken by the membership, such inaction under the facts of this record must be held tantamount to approval of the prior conduct of Lanham and a consequent ratification. Concerning silence or inaction as ratification, see Cameron v. Gibson, 278 S.W. 522, 525 where the court quotes from 2 C.J. p. 504, 505 as follows: “Mere silence or delay on the part of a principal in repudiating the unauthorized act of an agent does not necessarily amount to a ratification, but while it is not necessarily conclusive evidence of a ratification, unless it cannot be explained on any other theory, it is always an element to be considered in connection with other evidence tending to show a ratification, and may alone be sufficient to justify a finding of ratification, particularly where the circumstances impose a special duty upon the principal to speak, as where the other party is liable to be misled or injured by his failure to do so.” See also 2 C.J.S. Agency § 57, p. 1126.

Excerpts of admitted testimony is quoted by appellant which is complained of as “inflammatory, irrelevant and incompetent.” Such evidence relates principally to a prior practice of the local to refuse clearance cards to outside workmen; bearing, according to appellee, on knowledge by defendant of the discriminatory acts of Lan-ham. As such, they may be deemed relevant. Nor are the conversations had with Thurman, same being inclusive of the job offer to Borden excludable as hearsay. Thutman, the job foreman, was a member of said local, all members of which were adverse parties to plaintiff. In this connection, appellant says that the jury finding under issue one of the promise to plaintiff by Thurman, authorized foreman of the Far-well Construction Company, was contrary to the great weight and preponderance of the evidence; and the testimony of Northington, general superintendent, is cited that “if anybody was hired I looked for one thing,, that it was either Mr. Heath (plumbers) or Mr. George (steamfitters).” Here, while facts of the alleged agency may not be shown by declarations of the agent alone, such constitutes original evidence, and not objectionable as hearsay. Cook v. Hammer, 158 Tex. 164, 309 S.W.2d 54. Thurman, plumber foreman, testified that workers on the Republic Bank job were hired by him, he calling Local 100 office and asking for men as needed, the union manager issuing a referral to the job site. Concerning authority to hire his own men, Thurman testified, to a conversation with Heath, plumbing superintendent, (now dead) as follows: “Q Did you know Jack Heath? A Yes, sir, very well. Q What job did he have on that? A He was general superintendent. Q He did the hiring on the job, did he not? A Not necessarily, he hired the foremans or set men up as foremans, but the foremans hired their own men as they sought fit.” The testimony of Northington, general superintendent of Farwell, was in nowise contradictory to the above; his answers on cross-examination going no further than that he looked to George and Heath for satisfactory results. And issue one is not objectionable as multifarious and duplicitous. The fact of a job offer by Thurman to Borden is not disputed, the authority of the former to make such an offer being only at issue. Appellant could not have been injured by this combination of a disputed issue with the undisputed one. Goodrich v. First National Bank, writ ref., 70 S.W.2d 609.

The jury found that though Borden failed to exhaust the remedies available to him through union channels, also that pursuit of remedies, rules and procedures of the union would have been useless. Appellant asserts that plaintiff’s claim is barred' because of such failure, but the point is overruled. The Constitution and By-Laws of both parent association and defendant Local deal strictly with assessments, suspensions and expulsion, no where providing for a procedure whereby an allegedly wronged member may make claim for back wages or damages for discriminatory practices as in the instant situation and the testimony was clear that any application of union sanctions would have resulted only in the punishment of Lanham. Clearly, therefore, the pursuit of any remedies against the union by Borden would have been ineffectual, illusory and futile as well. In Anderson, et al. v. Painters’ Local Union No. 318, 161 Tex. 129, 338 S.W.2d 148, 151 is stated the general rule as set forth in 168 A.L.R. pages 1472-1473 that: “ * * * it is pretty generally held that where exhaustion of remedies within the union would amount to a practical denial of justice to the expelled or suspended member, or would be illusory or vain, it will not be insisted upon, particularly where property rights of the member are involved, as a condition to the right to invoke the aid of a court of equity for reinstatement to and restoration of membership.” (Emphasis ours.)

Appellant contends that the suit should be barred by laches or estoppel. The material facts relative to this point have heretofore been sufficiently detailed. The action was brought approximately a year after it became clear to plaintiff that he could proceed no further within the framework of the union (except for the vain and illusory appeal just discussed) and no laches is shown, defined in 27 Tex.Jur. p. 16, as “inexcusable delay in asserting an equitable claim.” Nor is equitable estoppel involved; an element of which is “the effect of the voluntary conduct of a party whereby he is absolutely precluded, both in law and in equity, from asserting the right that might perhaps otherwise have existed * * (Emphasis ours.) (22 Tex.Jur .2d p. 664). Under the restrictive provisions of defendant Local’s By-Laws and Constitution, plaintiff had no alternative other than to work at other job sites on referrals by the union. Through economic compulsion plaintiff was required to accept these referrals and his action cannot be said to be voluntary within meaning of this equitable doctrine. There was no detrimental reliance thereon, or change of position by the union; and appel-lee though referred to other jobs did not abandon his quest for employment on the Bank site.

Appellant charges an absolute lack of evidence on which to base any punitive damages or of knowledge by the membership of the wilful nature of Lanham’s conduct. The latter phase of such point has already been touched upon; as also the sufficiency of evidence in support of the jury’s answer (issue 8) that “the officers and members of said defendant Local Union approved such conduct.” The term “wil-fully” was properly defined and it is well settled that when the conduct is shown to be wilful, punitive damages are recoverable. Briggs v. Rodriguez, Tex.Civ.App., 236 S.W.2d 510.

Lastly appellant says that the jury answers to issues 5 and 7 are contradictory and irreconcilable, and that because of such conflict a mistrial should have been declared. The jury answered “yes” to issue 5 reading: “Do you find from a preponderance of the evidence that the said defendant Local Union 100, acting- by and through Cleo Lan-ham, wilfully refused to let the plaintiff work on said Republic National Bank Building?” Issue 7, to which the jury answered “No” reads: “Do you find from a preponderance of the evidence that such refusal to let the plaintiff work on said Republic National Bank Building, if you have so found, was without any cause or reason whatsoever?” During its consideration of the latter issue the jury questioned the trial Judge as follows: “Does ‘without any cause or reason’ mean without any reason whatsoever (personal or otherwise) or does it mean without reason according to the union bylaws ?” to which the court replied: “In answer to such communication you are instructed that: ‘It means a cause or reason’ which was actuated by an intent that was not in good faith. A denial, even though erroneous, which resulted merely from negligence, inadvertence or mistake would not be without any cause or reason whatsoever.”

In due course appellee made motion to disregard the jury’s answer to issue 7 as not ultimate or controlling and for judgment on the remaining answers which the court granted and so found in final judgment.

Appellant now argues that “Findings 5 and 7, considered separately and taken as true, would compel different judgments. The Supreme Court, in its earlier decision in this matter, stated that the union was not liable if Lanham’s action, although wrongful, resulted from negligence, inadvertence or mistake. By Special issue No. 7 the jury so found, and it follows that the union is not liable. On the other hand, the Supreme Court stated that if Lanham wilfully denied Borden a job opportunity, and other named conditions were present as well, the union was liable.” We do not pause to interpret the effect of jury answer to issue No. 7 aided (if it was) by the Court’s extraneous instruction thereon in answer to their inquiry.

In the first place, issue 7 was eliminated by the court in final judgment, its rendition being for plaintiff on the remaining jury findings. There could he no basis therefore for claim of irreconcilable conflict of issues; and while appellant took exception to the court’s action in so disregarding issue No. 7 and answer, same was not brought forward in any point on appeal. Furthermore, the issue was evidentiary at best. In deciding whether these findings are in direct and irreconcilable conflict, the entire charge and all of the verdict must be considered. 41 Tex.Jur. Trial, p. 794, and we must not presume that the jury intended to render conflicting answers. Swift & Co. v. Phillips, Tex.Civ.App., 314 S.W.2d 326. In issue No. 5 the jury had already found that the conduct of Cleo Lanham was wilful; the term meaning, under the court’s charge, “the intentional and purposeful disregard of the known rights of another”. And any “cause or reason” for Lanham’s refusal to refer plaintiff to the job site is explicit’in the testimony of the latter, also Thurman’s, already sufficiently detailed. The point is accordingly overruled.

Appellee’s crosspoint No. 1 the jury had made an award to plaintiff of $5,000 as’ punitive damages which the trial court found to be “unjust and excessive under the facts and that the plaintiff should be required to remit to the extent of such punitive damages not to exceed the actual damages awarded * * By subtraction, (issues 9 & 10) the punitive damages awarded was reduced to $1,916. Appellee in turn asserts error in this requirement of remittitur of $3,084; pointing out that the jury verdict is not excessive under the test laid down in 13 Tex.Jur. p. 396, and followed by the adjudicated cases. However, in the recent case of Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 our Supreme Court held that a Court of Civil Appeals in passing upon a' trial court’s action in ordering a remittitur must determine propriety of the order by deciding whether such trial court has abused its discretion.

In the light of all the facts and circumstances of this case, we cannot say that the action of Judge Stout in this connection was manifestly unjust and hence overrule the crosspoint.

All points of appeal are accordingly overruled and judgment of the trial court is in all respects affirmed.

      . The same jurisdictional plea had been previously raised on appeal to this Court (316 S.W.2d 458) and overruled but not interposed on writ of error to the Supreme Court of Texas. See 160 Tex. 203, 32S S.W.2Ü 739.


author: POPE, Justice.

text:
    W. H. DRAWE, Independent Executor of the Estate of H. C. Drawe, Deceased, Appellant, v. W. H. McGUFFIN, Appellee.
    No. 13881.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1961.
    Lon D. Herbert, Alice, for appellant.
    Lloyd, Lloyd & Dean, Alice, for appellee.
   POPE, Justice.

Plaintiff' filed suit upon a promissory note, and on April 11, 1960, it was dismissed for non-prosecution. On April 28, seventeen days later, plaintiff filed a motion to reinstate. On May 13, thirty-two days later, the court granted the motion. On October 14, after a trial on the merits, the court rendered a “take nothing” judgment, and plaintiff appealed.

A motion to reinstate is in the nature of a motion for new trial. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. When one files a motion for new trial after ten days have expired, it does not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a “take nothing” judgment. Since there was no timely appeal from the final order of dismissal on April 11, 1960, this Court has no jurisdiction.

The appeal is dismissed.


author: WILSON, Justice.

text:
    V. W. KELLEY et al., Appellants, v. BRAZOS VALLEY COTTON OIL MILL, INC., et al., Appellees.
    No. 3974.
    Court of Civil Appeals of Texas. Waco.
    March 22, 1962.
    W. L. Tandy, Waco, for appellants.
    Ñaman, Howell, Smith & Chase, Cullen Smith, Louis Muldrow, Waco, for appellees.
   WILSON, Justice.

The court granted defendant’s motion for instructed verdict in an action for death of a boy I414. years of age, who was killed by stepping into a cotton seed conveyor auger inside a storage tank on defendant’s premises.

This is said to be an “attractive nuisance” case but turns, primarily, on whether there is evidence defendant breached any duty it owed to deceased, and whether the issue of foreseeability is raised. The conditions to be satisfied to establish liability in the usual case of this type are: “(a) the place where the condition was maintained was one upon which the possessor knew or should have known that small children would likely frequent the place and play about it; (b) the condition was one of which the possessor knew, or should have known, involved an unreasonable risk of death or serious bodily harm to such children”; (c) the child, because of its tender years, did not realize the risk involved in encountering the instrumentality causing injury; and (d) the utility of eliminating the danger was slight as compared to probability of injury. Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, 451; Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847, 8 A.L.R.2d 1231. See Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587.

Defendant operates a cotton seed processing plant extending over a city block adjacent to railroad tracks near the central business district of Waco. Its premises are entirely enclosed in a metal “cyclone” fence. The plant consists of several buildings, and the dominant structures are two massive metal seed storage tanks, much larger than the surrounding buildings. These tanks are each complete enclosures containing seed to be processed. Through the entire interi- or diameter of each there is a metal tunnel six feet in height and width, through the sloping sides of which cotton seed are permitted to fall in quantities required. The seed drop into a metal trough set in the tunnel floor which contains a conveyor auger of 12-inch diameter, extending the length of the lighted tunnel. The revolving auger transports seed from the storage tanks to processing equipment in other buildings. It is in operation 24 hours a day. The conveyor and the extensive machinery in the tank which propels it makes a constant “loud, roaring noise”.

The machinery is entirely enclosed by the steel walls of the tank which may only be entered from the outside by climbing through a “porthole” or manhole 24 inches wide, “several feet or less” above the ground, through which cotton seed is sucked into the tank from railway cars or trucks. There is a front entrance gate to the plant from the office, and a rear gate for loading and unloading rail cars and trucks, in the fence surrounding the plant, which are usually left unlocked. All other gates are kept locked. “No admittance” and warning signs are placed about the plant.

Six weeks before the tragic occurrence, deceased was seen in the plant area near a loading dock. An employee told him it was dangerous to be around the plant and instructed him to leave. Deceased replied, “You can’t make me.” The employee thereupon called the assistant plant superintendent who required him to leave the premises.

On the day of the accident, defendant’s Negro employee working in a hull house saw deceased near one of the tanks about 11:30 A.M. The boy had picked up a pair of workmen’s dust goggles, tried them on, and placed them in his pocket. The employee instructed him to put the goggles down, “and leave out; and he done just what I told him”, leaving the premises by the front gate.

Some time before noon another Negro employee saw deceased near the rear of the plant area at a seed house. He told deceased, “Boy, no messing around in here; it’s too dangerous. You will have to go out that gate there. It’s too dangerous in here and you will get hurt.” All gates were then locked, he testified, except the front entrance gate toward which he directed the boy. Deceased replied, “O. K.”, and the employee returned to his work. Shortly thereafter this workman left the seed house to go to lunch. As he passed the two storage tanks he saw deceased “going between them.” He immediately “rushed” to the office to notify the plant superintendent, because “a white boy and a colored gpiy like that, it’s better to go to somebody that’s white and let them handle it.” The superintendent came promptly, “running to the front” of the dock area, but by the time he reached the tanks the boy was dead; his mutilated body lying inside the tank, in the tunnel, across or near an open segment of the conveyor-auger housing from which a portion of the cover was removed. The body was six to ten feet from the manhole. The auger was apparently covered and obscured by cotton seed. The accident occurred approximately at noon. Only two men ever worked in the tunnel: the employee who had reported to his superior, and his relief employee who had just returned from lunch and was t^en working in another area of the plant. The evidence does not show any child had ever previously been known to enter one of the tanks.

Appellants say the noises of machinery operating throughout defendant’s plant and the aroma of cooking cotton seed products made defendant’s premises attractive to trespassing children so as to make the plant area an attractive nuisance. In this case that factor becomes immaterial as to the premises, for it “is important only in so far as it may mean the presence of children was to be anticipated.” It was already known that this boy had actually come upon the premises. If attractiveness is an element, it applies here primarily to the instrumentality or condition which caused the injury, and is material on the issue of anticipation of consequences by defendant. The instrumentality or condition, in this case, is an auger enclosed in a housing, enclosed in a steel tunnel, enclosed in a plated tank, with the restricted means of ingress described. To warrant recovery it was necessary to show “that the injury was caused by the negligence of the owner or occupant after the presence of the trespassing child upon the premises was known to him.” Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587, 590.

May it reasonably be said that defendant could have reasonably anticipated that a 14-year-old boy, having been specifically admonished that the plant area was dangerous and he might get hurt, and having complied with orders to leave the fenced premises would shortly thereafter climb up to, and crawl though a two-foot hole in a steel enclosure, enter a tunnel and step on the auger? If so, could reasonable minds differ as to whether, having twice evicted him from its premises and warned him of possibility of injury from dangerous machinery dispersed over the area of a city block, defendant could have reasonably anticipated this tunnel of difficult access would be selected from all the dangerous mechanisms in the entire plant? Should defendant have known its almost inapproachable and secluded conveyor, walled in so as to impede approach, involved an “unreasonable risk of injury” to deceased? Did defendant breach a duty to deceased in removing the bolted plates from the manhole and leaving it uncovered when its continued unobstructed use was necessary as a matter of utility in defendant’s operations? We do not believe defendant was required to make the tank impregnable and impenetrable to entrance. It is said defendant should have kept all fence gates locked. The evident agility and persistence of the boy could not have been thereby effectively suppressed, under the undisputed evidence. He could have climbed the fence. It is said the Negro employee was negligent in directing him to walk nearly a block to the front entrance instead of taking him to the more accessible rear gate. There was evidence the latter gate was locked, but six weeks previously deceased voluntarily used the front gate as an exit. The boy having again agreed to leave by the front gate on the present occasion, it would seem the employee would not incur liability of his employer in failing to anticipate he would remain on the premises. We do not believe defendant can be charged with liability for the conduct of the Negro employee who, having unsuccessfully sought to induce deceased to absent himself from the property, rushed to summon his superior as “a white man, to handle a white boy”, when the superior ran to the area in response.

In our opinion the evidence does not raise an issue of a breach of duty to deceased.

Appellants urge the trial court erred in concluding further that deceased was not of such tender years, inexperience and capacity as to be unable to understand and appreciate the dangers and risk confronting him. Although, under our view of the case, it is not essential to pass on the question, we think the undisputed evidence establishes the conclusion is a proper additional basis for the judgment.

In Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, 452, 453, it was held that “the protection of the attractive nuisance doctrine is not to be extended to a normal boy fourteen years of age” in a case involving swimming in an open pit, and that “ ‘in the very nature of things’ he was capable of understanding and appreciating the dangers.” The Supreme Court cited authorities to the effect that although, where highly deceptive instrumentalities exist, a few cases have permitted recovery for injury to children between six and twelve years of age, “it is seldom that children above the age of 12 have been protected”, and “the great majority of cases in which it has been applied have involved children of less than ten years of age, and it has been considered that it cannot be applied to a child of the age of fourteen or over, at least in the absence of some showing of a lack of the mental development which is ordinarily found in children of that age or of a very exceptional state of facts.” The court held that consideration must be given “both to the character of the danger” and to age and maturity of the child.

To meet implications of this decision, appellants introduced the school records of deceased, which showed he was failing most subjects in the seventh grade, and that “mental maturity” and achievement tests based on “word meaning”, sentence and paragraph comprehension, information, matching, number concept, copying, analogy, vocabulary and similar factors, showed the “mental age” of deceased was from 1 year and 9 months to 2 years and 7 months less than his chronological age. The evidence established, however, that deceased attended school less than half of the regular school days during the year before his death. He had an intelligence quotient of from 78 to 86, and a non-language I. Q. of 94. Appellant, the mother of deceased, testified he was “a boy of average intelligence.” Without detailing the unfortunate environment and parental background in which the boy was reared, it may be characterized as somewhat less than auspicious. The undisputed evidence establishes that the boy could not be expected to have the educational attainments of an average child his age or to pass his' school work, by attending less than half the time, and by existing under the conditions surrounding his upbringing. The school superintendent, plaintiff’s witness, testified, “if he is not present, he can’t learn from school.” These facts, when the record is considered most favorably to appellants under familiar rules, do not raise the issue that deceased was not of such years and discretion to fully understand, appreciate and realize the risk involved, where he had been specifically apprised of such risk, and, as the evidence shows, had repeatedly attempted to evade and elude defendant’s employees who evicted him from the property. Other contentions have been considered and are overruled.

The judgment is affirmed.


author: FANNING, Justice. DAVIS, Justice.

text:
    George Thompson BROWN and Dan Christian Woldert, Jr., Appellants, v. John L. DELLINGER, Appellee.
    No. 7387.
    Court of Civil Appeals of Texas. Texarkana.
    March 6, 1962.
    Rehearing Denied April 3, 1962.

      Leachman, Gardere, Akin & Porter, Thompson, Knight, Wright & Simmons, Dallas, Willis Jarrel, Tyler, for appellants.
    Johnson, Hathaway & Jackson, Tyler, for appellee.
   FANNING, Justice.

John L. Dellinger sued George Thompson Brown and Dan Christian Woldert,. Jr., minors, (who were represented by their respective guardians ad litem) to recover' damages to his house and furnishings in a, fire which occurred on January 23, 1959. Plaintiff Dellinger filed an amended motion for partial summary judgment on the issue of liability, contending that the minor defendants were liable as joint trespassers as: a matter of law, and were also guilty as a-matter of law of the commission of an intentional tort of invading or interfering with vested property rights of the plaintiff. Defendants also filed motions for summary judgment. Certain stipulations were made and certain depositions were placed in the record by the parties. The trial court sustained plaintiffs’ amended motion for partial summary judgment and denied defendants’ motions. The parties then agreed, without prejudice to any future trial, to a stipulation as to the amount of damages. The trial court entered a final judgment in favor of plaintiff for the amount of the stipulated damages with certain stated interest against the two minor defendants. Defendants have appealed.

The judgment of the trial court is affirmed.

The minor appellants on January 23, 1959, the date of the fire, were between 7 and 8 years of age. The appellant Brown was born in September, 1951, and appellant Woldert was born in October, 1951. They were both in the first grade in school and were normal boys of at least average or perhaps above average intelligence for their ages — one of the boys was apparently an “A” or near “A” student and the other one was not rated that high as a student but was apparently at least an average or perhaps above average student. They had both been warned about playing with matches. They lived in the neighborhood where the Dellinger home was located and they had played in and on the Dellingers’ yard and had been in the house of the Dellingers at times when the Dellingers were at home. There is also some evidence in the record that they had played in the Dellingers’ garage before the fire. There is also evidence in the record that the two minor appellants were present when Mr. Dellinger burned leaves on an adjacent lot and assisted him in doing so, with Mr. Dellinger cautioning them to keep back from the fire.

On January 23, 1959, the date of the fire, appellee Dellinger and wife were out of town. Their garage was attached to their residence. Before leaving home they had placed a canvas curtain or tarpaulin which closed the entrance to their garage, weighting same down with boards and fastening same down with fasteners. Appellant minors gained entrance to the garage and discovered therein a small portable charcoal grill which they moved within a short distance of the inside of the curtain hanging over the entrance to appellee’s garage. The morning was a cold morning, and appellants stated that they wanted to build a fire to get warm. Appellants then secured some leaves from a leaf pile outside of the garage, filled the grill with leaves, and the minor Woldert then went to his home which is located nearby, secured some matches at his home and returned to the garage. Whereupon the appellants both proceeded to ignite the fire. Appellants experienced some difficulty in igniting the fire, and the appellant Woldert made two more additional trips to his home for the purpose of securing more matches with which to continue appellants’ efforts in building a fire in the grill in the garage. The appellants were finally successful in their joint efforts in igniting the leaves in the grill and turned around and stood with their backs toward the fire for some interval (warming themselves), after which they discoverd that the canvas curtain had caught fire. Appellants observed the curtain to flap in the wind and appellant Brown stated that perhaps the wind either blew the curtain against the fire or blew the fire over to the curtain. Appellants were unable to extinguish the fire, but got out of the garage safely. The fire rapidly spread to the remainder of the house causing substantial damage to the garage, house and contents thereof, in excess of $28,000.00.

It was admitted that on no occasion did the appellee or his wife conduct themselves individually or together in such a manner as to cause the appellants to have reason or cause to believe that either of said appellants had any implied authority to build a fire in the grill which was ignited by appellants on January 23, 1959.

On no occasions were appellants ever given express authority to play with or build a fire in the subject charcoal grill or play with matches in appellee’s garage, nor did appellee or his wife ever conduct themselves so as to give appellants reason or cause to believe that they had implied authority to start or build a fire any place on appellee’s premises, or to play with fire or matches in appellee’s garage, or to build a fire in appellee’s grill in appellee’s garage.

Neither appellee nor his wife in any manner consented to the lighting of the fire in question.

Appellee never permitted appellants to play with fire or build a fire and neither of appellants had ever built a fire or played with fire in appellee’s garage before appellants ignited the fire on January 23, 1959, when appellee and his wife were away from home in Austin. Appellee had never used the charcoal grill in the presence of the appellants. It also appears that no other children, to the knowledge of appel-lee and his wife, had ever played with fire or matches anywhere on the premises of the appellee, except on several occasions when appellee was raking and burning leaves on an adjacent lot when appellants attempted to throw (or threw) some leaves on the fire, or would get too close, and it appears from the uncontradicted testimony of appellee that on each occasion appellee would instruct them to desist and get back from the fire.

There was no other fire near the curtain or garage, and the evidence is conclusive that the fire ignited in the grill, spread to or reached the canvas curtain, and from there to the garage, house and contents of the house.

The primary meaning of the term “trespass” is any act which transcends or passes beyond the bounds of legal right. Texas courts have observed that the gist of a trespass is the doing of an unlawful act in an unlawful manner, to the injury to the person or property of another. The term “trespass” is also applied to an act which results in injury to or destruction of personalty and to an act which consists in an entry upon or injury to real estate. 41-A, Tex.Jur., Trespass, Sec. 2, p. 464-5.

Sections 8, 9 and 10, Trespass, 41-A Tex.Jur., p. 471-2, read as follows:

“§ 8. — The commission of a trespass necessarily involves an actor an injury or damage done by him to the person or property of another resulting from his action. To constitute a trespass, the injury must result from an affirmative act of the person committing the same. The trespass is the misfeasance or wrongful act, and the injury is the result of the trespass rather than a part of it.
“§ 9. Intent. — Regardless of the motive which prompted the act of the defendant, liability is incurred. Thus his liability for actual damages which have resulted from his conduct is not affected by an honest belief that he was the owner of the property.
“§ 10. Negligence. — Where actual or material injury or damage has resulted from a trespass, the trespasser is held to be liable without reference to ‘negligence’ or the exercise of ‘care’; a recovery may not be defeated on the ground that the harm done was not a foreseeable consequence of the defendant’s conduct. An issue as to ‘negligence’ on his part should not be submitted to the jury, the only question to be resolved being the amount of the plaintiff’s loss or damage. Thus, where it appears that the defendant entered a house of the plaintiff and lighted therein a fire without the plaintiff’s consent, with the result that the building was destroyed, a right of recovery exists by reason of the defendant’s act of trespass; and the decision of the case involves no question as to negligence in the lighting or management of the fire." (Emphasis added.)

The Supreme Court of Texas in Mountain States Tel. & Tel. Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148, held that the cutting by a street paving contractor of a telephone cable lawfully in place beneath the surface of the ground' was a violation of a property right which gave .rise to a cause of action for trespass regardless of negligence. We quote from the Supreme Court’s opinion in said case in part as follows:

“ * * ⅜ we think a recovery upon the theory of trespass is clearly supported by the record, and we need.not further mention the negligence theory other than to say that as we understand the telephone company’s theory of liability it is that Vowell by reason of having 'severed the cable which was lawfully in the street, became liable in damages regardless of whether such severing was the result of a negligent act or not. The Court of Civil Appeals on the other hand seems to have taken the position that for the severing act to constitute a trespass Vowell must have actually intended to cut the cable. * ⅜
“ ‘The gist of trespass to personalty is an injury to, or interference with, possession, unlawfully, with or without the exercise of physical force.
“ ‘Destruction of, or injury to, personal property, regardless of negligence, may be a trespass.’ 87 C.J.S. Trespass §§ 8, 9, p. 962. See, Carter v. Haynes, Tex.Civ.App., 1925, 269 S.W. 216, loc. cit. 219.
“Here, the scraper was deliberately and intentionally used in making a cut to the designated subgrade. The telephone cable was lawfully in place. The molesting or severing of the cable was a violation of a property right which gave rise to a cause of action regardless of negligence. Champion v. Vincent, 20 Tex. 811; McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618, writ refused; Shell Petroleum Corporation v. Liberty Gravel & Sand Company, Tex.Civ.App., 128 S.W.2d 471, no writ hist.; Whitehead v. Zeiller, Tex.Civ.App., 265 S.W.2d 689; Illinois Bell Telephone Co. v. Charles Ind. Co., 3 Ill.App.2d 258, 121 N.E.2d 600; New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765, 21 L.R.A.,N.S., 470. The particular appellation or classification to be given the particular act is not of controlling effect. The important thing is that a property right was violated. * *

Where one has the status of a licensee or invitee and exceeds the limits of authority provided by the license or invitation, he becomes a trespasser. Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598.

A conditional or restricted consent to enter land creates a privilege to do so only insofar as the condition or restriction is complied with. Restatement of the Law, Torts, Sec. 168, p. 407. Illustration 7 under said section 168, p. 409, reads as follows:

“A grants to B, a contractor, a license to store his trucks in A’s barn. B not only stores his trucks in A’s barn, but also makes extensive repairs on such trucks while they are in the barn. While using an acetylene torch in repairing a truck, B sets fire to and burns down the bam. B is a trespasser.” (Emphasis added.)

We hold that the record is conclusive that the minor appellants unquestionably became trespassers as a matter of law when they ignited the fire in the charcoal grill in appellee’s garage.

In Texas, as a general rule, minors are civilly liable for their own torts. Chandler v. Deaton, 37 Tex. 406; Heidingsfelder v. Rodgers, Tex.Civ.App., 96 S.W.2d 147; 23 Tex.Jur. 749, Sec. 55.

In 27 Am.Jur., Infants, Sec. 90, p. 812-3, it is stated in part as follows:

“ * * * It is frequently stated that an infant is liable for his torts generally where there is no basis in any contract relation, or that an infant is liable for his torts which are not connected with and do not arise out of contracts. Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts * * * ” (emphasis added).

In 67 A.L.R.2d p. 572-3 it is stated in part as follows:

“Accordingly, where the only intention necessary to the commission of the tort is to perform the physical act in question, as in trespass to property or person, it seems settled that even an infant of quite tender years may be held liable.
* * * * * *
“§ 3. Torts in the nature of trespass. There are certain torts, based on a direct application of force to the plaintiff’s person or property, as to which liability may be imposed on a showing that defendant intentionally activated the force in question, without any necessity of showing that he intended harm, and the courts appear to be agreed that in so far as a young child can form the intention to do the physical act releasing the harmful force he can he held liable.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“Stating, arguendo, that an infant under 7 years of age was incapable of the malicious intention necessary to commit the tort of libel, the court in Munden v. Harris (1911) 153 Mo.App. 652, 134 S.W. 1076, said that this view was not inconsistent with the conclusion that a child of even tender years might commit a trespass and be civilly liable for damages, since doli capax cut no figure in that instance, as a trespass does not necessarily imply malice or evil intention.
“An infant a little more than 6 years old was held in Huchting v. Engel (1863) 17 Wis. 230, 84 Am.Dec. 741, properly found guilty on a charge of trespass in entering plaintiff’s premises and breaking down shrubbery, the court distinguishing the question of criminal liability and of liability for contributory negligence, and saying that no finding of intention was necessary under the circumstances.
jjc ⅜ ⅝ ⅝ sjs ⅜
“The case of O’Brien v. McNamee (1953) IR.R. 86, as stated in the Eng. and Emp.Dig.1958, 3d Cum.Supp., Infants, p. 76, held liable a 7-year-old defendant who carried a lighted paper into plaintiff’s hay shed and caused a fire, no question of malicious intention arising and a showing of malice not being necessary to establish liability. * * * »

The acts of the minor defendants in bringing matches onto the premises of appellee and igniting the fire in the charcoal burner in appellee’s garage were all voluntary and purposeful and were acts which they even at their tender years had sufficient capacity to do, as evidenced by the fact that they did do such acts. Undoubtedly they did not intend for the fire to escape from the grill and spread to the' curtain canvas and burn and damage the? garage, house and contents thereof. However their acts of igniting an unauthorized fire on appellee’s premises made them trespassers, and they must be held civilly liable for the consequences which directly flowed from their unauthorized acts of igniting the fire in question.

We hold that under the record there were no unresolved material fact issues raised by the record, and that the trial court correctly granted plaintiffs’ amended motion for summary judgment and thereafter correctly entered judgment for appellee in the amount stipulated as damages with certain stated interest thereon.

The judgment of the trial court is affirmed.

CHADICK, J., concurs.

DAVIS, Justice.

I dissent. This is a suit against two minors; seven and eight years of age.The transcript does not contain any evidence of any service of citation upon either of them. The minors must be served with citations. A notice for the request for admissions was served on the Guardian Ad Litems. The service of such process on the minors is a necessity. 30 Tex.Jur. (2) 732, Sec. 69. 43 C.J.S. Infants § 115, p. 313.

An attorney can represent the minors, but he can not waive nor admit away any substantial rights of the minors. 43 C.J.S. Infants § 114b, p. 312. All facts must be proved. There can be no admissions of fact, as a matter of law, against a minor under nine years of age. 30 Tex.Jur. (2) 664, Sec. 3; Hatton v. Bodan Lumber Co., 57 Tex.Civ.App. 478, 123 S.W. 163, err. ref.; Austin et al. v. Collins et ux., Tex. Civ.App., 200 S.W.2d 666, er. ref., N.R.E.; 30 Tex.Jur. (2) 703-4, Secs. 49 and 50.

There is a question of fact as to the consent of the appellee in permitting the minors to play upon his premises. The ap-pellee testified, by deposition, that the two minors had played in his garage before, and were welcome to do so. The attorneys for the two minors stipulated that they had not played in the garage before. The attorneys had no authority to make such stipulation of fact. The fact had to be proved by evidence before the court. 43 C.J.S. Infants § 114b, p. 312.

I would reverse the summary judgment.

      . Among the cases cited in support of the underlined portion of Section 10, supra, are Wetzel v. Satterwhite, 59 Tex.Civ. App. 1, 125 S.W. 93, and Badu v. Satterwhite, Tex.Civ.App., 125 S.W. 929.