author: BELCHER, Judge. MORRISON, Judge

text:
    Manuel PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34631.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied June 30, 1962.

      Russell B. Wine, Theo. Pat Henley, San Antonio, for appellant.
    Charles J. Lieck, Jr., Criminal Dist. Atty., Norma Fink, Asst. Criminal Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Judge.

The conviction is for the sale of marijuana; the punishment, twenty-five years.

Officer Lucero testified that about 9:10 P.M. he observed the appellant talking and moving from one table to another in Club Chico, and when appellant walked out towards the rest room in the rear of the building he followed; that he spoke as he passed the appellant, who had stopped and was talking to another person, and while passing he heard them using terms which indicated weed or marijuana.

When Officer Lucero came out of the rest room, he again spoke to the appellant and asked him if anything was going on, which was language meaning if there was anything for sale in the form of marijuana. Appellant replied: “How much do you want?”, and Lucero said “about $2.00”. Then Lucero gave the appellant $2.00 and the appellant gave him four cigarettes. Officer Lucero notified Detective Rosas, of the Narcotic Bureau, and Lucero and Rosas in the presence of each other marked said four cigarettes for identification purposes and placed them in the evidence locker of the police department.

Proof was offered that the four cigarettes were analyzed and found to contain marijuana.

The appellant did not testify or offer any evidence in his behalf.

Appellant insists that under the evidence the punishment of twenty-five years assessed by the jury is cruel and excessive and cannot be sustained.

Any person convicted for the sale of marijuana may be punished by confinement in the penitentiary for not less than five years nor more than life. Art. 725b, Sec. 23, Vernon’s Ann.P.C.

The punishment assessed was within the limits prescribed by law. This precludes the necessity of any further consideration on the ground that the punishment was cruel and excessive. 16 Tex.Jur.2d 120, Sec. 19; Garcia v. State, 166 Tex.Cr.R. 482, 316 S.W.2d 734.

By Formal Bill of Exception No. One, appellant urges error because of the prosecutor’s opening argument to the jury as follows: “In this case there hasn’t been any dispute at all in the testimony.”

At the time of such statement, no objection was made and no reason appears or is assigned for such failure. During further argument, which did not refer to the subject matter in the above quoted statement, the appellant objected as follows:

“Now just a minute. I object to that line of argument as improper and prejudicial, may it please the court.”

The objection was overruled, but no exception was reserved. No motion of any kind was made upon the basis of such argument. The court certified that he considered that appellant’s objection was directed to the immediate preceding argument instead of the statement above quoted. The appellant did not testify. No error is presented.

In Formal Bills No. Two, Three, and the last contention in No. Four, complaint is also made of certain argument to the jury by the state’s attorney. The court certified in these bills that no objection was made, nor a request that the jury be instructed not to consider it, or a motion for a mistrial. Therefore, these bills show no error.

In Bill of Exception No. Four, appellant contends that the state’s attorney committed error in making the following statements in the opening argument to the jury:

“Now when I leave this court room I am going back down to my office, and it is my intention to write a letter to Chief Bichsel, who is the Chief of Police of the San Antonio Police Department, * * * ”

At this time, the appellant made the following objection:

“I am going to object to this extraneous matter being argued before the jury, may it please the court, not reasonable deductions on the evidence.”

The objection was sustained. No request was made to instruct the jury to disregard the argument or for a mistrial because of it. This argument in view of the court’s action in sustaining the objection, shows no error.

By Formal Bill of Exception No. Five, appellant claims that error was committed by the prosecuting attorney in his closing argument when he stated:

“He won’t go to work and try to make an honest living.”

To such argument, the appellant objected because it was improper and prejudicial. The court sustained the objection, instructed the jury to disregard the remarks of the state’s attorney and not to consider them for any purpose whatsoever in their deliberations.

The bill shows that the remark of counsel immediately preceding the statement complained of was:

“He wants to get that stuff and keep it turning, so he can put some more money in his pocket.”

There was no objection to these remarks.

In view of the evidence and the argument quoted and the prompt and adequate instruction to the jury by the trial court, no reversible error is shown.

The evidence is sufficient to support the conviction.

The sentence orders that the imprisonment be for a period of not less than two nor more than twenty-five years. It is reformed to read “not less than five years nor more than twenty-five years”, five years being the minimum punishment for the offense charged.

As reformed, the judgment is affirmed.

MORRISON, Judge

(dissenting).

Bill of exception No. 5 reflects the failure of the trial court to grant a mistrial after the prosecuting attorney stated to the jury in his argument, “He (appellant) won’t go to work and try to make an honest living.” There is not a scintilla of evidence in the record to support this statement.

In Sparks v. State, 159 Tex.Cr.R. 111, 261 S.W.2d 571, we held that the prosecutor committed reversible error by stating that the appellant possessed marijuana for the purpose of selling it to school children where there was no evidence in the record to support such a statement.

In Kirk v. State, 159 Tex.Cr.R. 124, 261 S.W.2d 721, we held the prosecutor’s statement to the jury that he had helped appellant out of other trouble reversible error where there was no evidence in the record to support the same.

In the case at bar, the prosecutor injected new and harmful facts into the case which were highly prejudicial to the rights of appellant because he told the jury one of the most damaging pieces of evidence against any one charged with crime, as I see it; i.e., that the accused was a professional criminal and had no other occupation.

I respectfully dissent.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Thomas BUSH, Appellant, v. The STATE of Texas, Appellee.
    No. 34598.
    Court of Criminal Appeals of Texas.
    May 30, 1962.
    Rehearing Denied June 30, 1962.
    Robert W. Tarrant, Houston, W. E. Martin, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Neil McKay, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is kidnapping for extortion under Article 1177a, Vernon’s Ann.P.C.; the punishment, 25 years.

The prosecuting witness Bonnie Fay Greer, a strip tease artist, testified that one “Honey Bee” Johnson, another member of her same school of dancing, was present on the night charged in the indictment and saw her receive $150.00 in payment for one week’s work, that Honey Bee invited her to join a party, and that she agreed. She stated that they left her place of employment in a convertible automobile and drove to another address in Houston, where they were joined by one Regina Landig and, as they were driving away, appellant, whom she did not know, jumped in the front seat, pushed Honey Bee over on her, took the wheel, and, in spite of her pleas to be returned to her place of employment, drove through the night, ultimately arriving at the city of Victoria. As to disposition of her week’s pay, the prosecutrix testified:

“Q. What did you do with the hundred and fifty dollars he gave you ?
“A. I put it in my billfold and then put my billfold in my overnight case.”

As to what transpired during this trip, we quote the following:

“Q. Do you know what, if anything, happened to your billfold?
“A. Well, I don’t know what they were doing with it, but I heard them looking through my identification and he said: ‘Hand me that stuff,’ and Regina handed it to him and I never saw it anymore.
“Q. And I believe you said you were driving down the highway somewhere and Tommy Bush asked Honey Bee to hand your money back up in the front seat?
“A. He asked Regina and she reached over and got it out of the back and handed it to him.”

We need add only that it is apparent from this record that Honey Bee worked for appellant and that the two women (Honey Bee and Regina) were acting upon his command and were in a large measure dominated by appellant.

Prosecutrix finally gained her freedom several days later by means of swimming the Brazos River while her captors were asleep. She was discovered by the officers in a bruised and incoherent condition.

Appellant did not testify or call any witnesses in his behalf.

Without resort to what transpired following the taking of the money, we have concluded that the evidence is sufficient to show that appellant at the moment he entered the convertible in Harris County had the intent to forcibly take away the person of prosecutrix for the purpose of taking her money, as charged in the indictment. The fact that he may have also had the intent, as the evidence clearly indicates, of forcing her to become a prostitute so that he might profit therefrom would in nowise preclude a prosecution for the first offense shown.

Appellant next contends that the court erred in failing to instruct the jury on the law of false imprisonment and to authorize the jury to convict for such offense and not kidnapping.

Though false imprisonment is a lesser included offense to kidnapping under the terms of Article 695, Vernon’s Ann.C.C.P., the necessity for such a charge has been decided adversely to appellant’s contention in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479. There, we said: “ * * * merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged.” See also Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75.

Appellant did not testify or call any witnesses in his own behalf, and there was no evidence which would show that, if guilty, he would be guilty only of the lesser included offense.

The court in his charge followed the terms of Article 1177a, supra, and the indictment, and we find no merit in appellant’s contention that the court erred in failing to give his requested charges.

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


author: WOODLEY, Presiding Judge.

text:
    Robert O. HUGHES, Appellant, v. The STATE of Texas, Appellee.
    No. 34685.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    Jacko Hargrove (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Thomas C. Dunn, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, 30 years.

The undisputed evidence, including the testimony of appellant, shows that at about 'll o’clock P.M. on August 3, 1961, just outside Katy’s Lunchroom, where lunches and beer were sold and pool games were played, appellant shot and killed the deceased.

The state’s evidence was that appellant, who was carrying a pistol, cursed a cousin of the deceased and the manager told appellant to leave. As he was leaving he “bumped into” the deceased, who was shooting pool; that the deceased asked appellant, “Why did you bump into me?” and appellant replied, “Come outside and I will show you”; that the deceased started outside, still carrying the pool stick or cue, and just as he got outside the appellant shot him; that appellant then stood in the doorway of the lunchroom and said “I am going to kill all of you”, and fired several shots into the lunchroom.

The jury rejected appellant’s claim that he shot deceased without intending to kill him and in self-defense.

No formal bills of exception were filed.

The sole ground for reversal is presented by informal bill reserved in the statement of facts. It relates to the denial of appellant’s request for a prior statement of the witness Richard Johnson, after he had testified as to the shooting of the deceased and had further testified that one of the bullets fired into the lunchroom hit his shirt pocket in which he had a dime. The dime which was claimed to have deflected the bullet was introduced in evidence.

Under the holdings of this Court in Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; and Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528 (decided after the trial of this cause) the appellant was entitled to inspect the statement after the witness had testified and to use it for the purpose of cross-examination, and the court was in error in denying the request therefor made after the witness had testified on direct examination.

Under the same authorities, reversal is not called for unless it be shown that harm or prejudice to appellant resulted from the court’s failure to require the production of the prior statement of the witness. See also Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931.

Upon motion of the district attorney, the statement of the witness Richard Johnson was included in the statement of facts as a qualification to the informal bill of exception relating to the request of appellant’s counsel to have the opportunity to examine the statement, and to require its production for the purpose of the informal bill of exception.

An examination of the testimony of the witness Richard Johnson and his prior statement reveals no discrepancy or conflict. The prior statement contains nothing that would exculpate the appellant. The prior statement does omit any reference to the bullet striking a dime in the witness’ shirt pocket, but the witness testified at the trial that this was omitted from his prior statement.

The statement of facts was agreed to by counsel and approved by the trial judge. It was filed within the 90 days allowed by law. During the trial appellant sought to have the statement produced for the purpose of the informal bill of exception. He is in no position to complain that it was incorporated in the record as a qualification to such bill.

We overrule the contention that the trial judge was without authority to make the statement a part of the record on appeal by incorporating it in the statement of facts as a qualification to an informal bill of exception, in order that this Court might determine whether or not the appellant was injured or prejudiced by the trial court’s ruling complained of in such bill.

The judgment is affirmed.


text:
    Robert Lee STEELE, Appellant, v. The STATE of Texas, Appellee.
    No. 34625.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    Aubrey Robison, Daingerfield, for appellant.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our attention being directed to the fact that the record contains no recognizance or bond on appeal, our prior opinion affirming the conviction is withdrawn and the appeal is dismissed.


text:
    Marion J. GREGORY et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34647.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    No attorney for appellant of record on appeal.
    G. Curtis Jackson, County Attorney, Crystal City, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal in a bail bond forfeiture case.

There is nothing in the record showing that a brief has been filed in this Court, as required by the Texas Rules of Civil Procedure, Art. 866, Vernon’s Ann.C.C.P.

Failure to comply with the rules requiring the filing of briefs authorizes a dismissal of the appeal for the want of prosecution. Chase et al. v. State, 168 Tex.Cr.R. 398, 328 S.W.2d 295, and cases cited.

Accordingly, the appeal is dismissed.


author: DICE, Commissioner.

text:
    Billie Raymond BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 34580.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    Rehearing Denied June 30, 1962.

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

The conviction is for felony theft; the punishment, confinement in the penitentiary for two years.

The state’s evidence shows that the injured party, Troy Fountain, was foreman on a bridge construction job for the Texas Highway Department in Brown County. When he went to work on the morning of January 13, 1961, he discovered that the tool house on the job had been broken into and certain items of property were missing. The property had been locked in the house the evening before and among the missing items were five tires, a case of Esso motor oil, a pavement breaker, and a jack-hammer.

The state’s evidence further shows that on the morning of January 13, 1961, between the hours of one and two a. m., City Patrolman Cecil Stone met the appellant driving a pickup truck on Highway 377 in the city of Stephenville. Observing that the pickup was weaving on the road and being driven close to the center line, he turned his vehicle at a “Y” and proceeded to follow and stop the appellant just outside the city limits. At such time, a companion by the name of James Carr was riding with appellant. While following the appellant, Officer Stone observed the pickup he was driving “weaving over the center line and back.” After stopping appellant, he observed that he had been drinking, and saw some truck tires, a jack-hammer, and some lubricating oil in the pickup.

Following his arrest, the officers recovered from the pickup one 825 x 20 U. S. Royal tire, one 750 x 20 Goodyear tire, one 900 x 20 National deep-tread tire and wheel, one 100 x 22 Firestone transport tire and tube, a case of twenty-two quarts of Humble Esso Extra motor oil, one pavement breaker, and one jack-hammer. The articles of property were identified by the injured party as property taken from his tool house in Brown County on the night in question. The injured party testified that the property was taken without his consent and that the value of the jack-hammer was $200. A padlock was also found in the pickup, which was identified by the injured party as having come from his gasoline tank.

The state’s proof further shows that after appellant was returned to Brown County, Deputy Sheriff Long obtained some scrapings of dirt from his shoes and from the shoes of his companion, Carr. The deputy then went to the scene of the crime and obtained a sample of dirt from the ground near the tool house. The three dirt samples were delivered to the crime laboratory of the Department of Public Safety for examination. Chemist P. W. Maupin, of the department, testified that he made several tests of the dirt samples; that a screen test showed that the samples had similar composition as to size of grains in the soil, an alkalinity test showed that the samples were slightly alkaline, and a spectographic analysis showed that the samples contained identical metallic elements. Chemist Mau-pin expressed the opinion that the three dirt samples were similar and could have come from the same place.

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

There are no formal bills of exception or objections to the court’s charge, and no brief has been filed on behalf of the appellant.

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

Appellant, by Some of the bills, questions the legality of the search of the pickup by the officers without a search warrant.

The testimony of Officer Stone as to the manner in which appellant was driving the pickup upon the public highway and that he had been drinking and was “too tight” to be driving was sufficient to authorize his arrest without a warrant, under the provisions of Art. 803, Vernon’s Ann.P.C. Hurley v. State, 155 Tex.Cr.R. 315, 234 S. W.2d 1006; Granado v. State, 161 Tex.Cr.R. 128, 275 S.W.2d 680; Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264; and Mayo v. State, Tex.Crim.App., 344 S.W.2d 685. The arrest of appellant being lawful, the incidental search of his automobile was lawful. Mayo v. State, supra.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Mary Margaret RENTY, Appellant, v. The STATE of Texas, Appellee.
    No. 34684.
    Court of Criminal Appeals of Texas.
    June 13, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Donald M. Keith, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon waiver of a jury, the appellant was convicted for the offense of giving a check in the sum of $35 without sufficient funds and with the intent to defraud; the punishment, sixty days in jail.

Mrs. Rae Mooney testified that on December 31, 1959, she was employed as a cashier for J. Weingarten Incorporated. On that date the $35 check, which is the basis of this case, was presented to her. As agent of her employer she cashed the check after placing her mark of identification on the check and making a photograph of both the check and of the person presenting it.

The photograph showing both the check and the person presenting it, and the $35 check itself were introduced in evidence. These exhibits and the appellant were before the trial judge.

Mrs. Mooney, while testifying, expressed the opinion that the accused was the same person who presented the check and for whom she cashed it. She also identified the check by her mark of identification.

The proof shows that said check was presented in the due course of business to the named bank and was returned unpaid because the account was closed at all times here in question.

The appellant did not testify or offer any evidence, and no brief has been filed on her behalf.

There are no formal bills of exception, and an examination of the informal bills shows no error.

The evidence is sufficient to support the conviction, and therefore the judgment is affirmed.

Opinion approved by the Court.


author: COLLINGS, Justice.

text:
    HESS, INC., Appellant, v. Frank GARCIA, Appellee.
    No. 3676.
    Court of Civil Appeals of Texas. Eastland.
    May 4, 1962.
    Rehearing Denied June 15, 1962.

      Vinson, Elkins, Weems & Searls, Houston, for appellant.
    W. Jiles Roberts, Houston, for appellee.
   COLLINGS, Justice.

Frank Garcia brought suit against Hess, Inc., for damages under the Jones Act, 46 U.S.C.A. § 688, and the General Maritime Law of unseaworthiness. Plaintiff alleged that he was a seaman and employee of the defendant and a member of the crew of the S.S.Hess Diesel; that while in the course of such employment he injured his low back because of the negligence of defendant Hess Inc., its agents, servants and employees and/or because of the unseaworthiness of the S.S. Hess Diesel, and sustained serious bodily injury for which he sought to recover damages. Plaintiff also sought to recover on the theory of res ipsa loquitur. The case was tried before a jury and, based upon the verdict, judgment was rendered against Hess, Inc., in the amount of $25,000.00. Hess, Inc., has appealed.

Appellee, Frank Garcia, alleged that the S.S.Hess Diesel was unloading kerosene on the occasion of his injury in the harbor of Boston, Massachusetts; that during the unloading operation, a reducing coupling broke allowing kerosene to spill out on the deck of the ship to a depth of about three or four inches; that he slipped and fell in the kerosene on the deck, thereby injuring his back. He alleged that since that time he has continuously had trouble with his back and because thereof has each year missed about two or three months of work as an able-bodied seaman; and that because of his injury he has since been unable to work as a mate; that this condition will be permanent. It was shown that after his injury appellee Garcia remained aboard the vessel until it docked in Freeport, Texas, at which time he secured a Master’s Certificate to go to the Public Health Service where he received treatment both as an in patient and an out patient for approximately 33 days, and was discharged as fit for duty on January 3, 1956; that he thereafter shipped out on the S.S.Adabelle Lykes on January 10, 1956; that while serving aboard that vessel he sustained another accident which resulted in injury to his back and received treatment by the Public Health Service for such injuries for some two or three weeks. He was again declared fit for duty by the Public Health Service and shipped out on May 15, 1956. He has been working approximately ten months out of the year since that time.

In numerous points appellant contends that the court erred in submitting the following special issues to the jury over timely objection, because appellant contends that each of such issues amounts to a general charge and does not inquire as to any fact or group of facts amounting to an ultimate issue in the case:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the mate on watch failed to exercise that degree of care in supervising the discharge of cargo at the time and on the occasion in question, which a reasonably prudent person would have exercised under the same or similar conditions?
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that the reducer coupling in question was defective?
“SPECIAL ISSUE NO. 13
“Do you find from a preponderance of the evidence that at the time and on the occasion in question that the defendant Hess, Inc., its agents, servants, or employees were negligent?
“SPECIAL ISSUE NO. IS
“Do you find from a preponderance of the evidence that the kerosene on the deck of the S.S. Hess Diesel prevented the deck of the S.S. Hess Diesel from being a reasonably safe place to work?
“SPECIAL ISSUE NO. 17
“Do you find from a preponderance of the evidence that the reducer coupling was defective?
“SPECIAL ISSUE NO. 19
“Do you find from a preponderance of the evidence that the winch to which the line was attached was defective ?
“SPECIAL ISSUE NO. 21
“Do you find from a preponderance of the evidence that the defendant failed to properly rig and man the cargo hose, line and winch?”

It was alleged in appellee’s pleadings that appellant, its agents, servants and employees were guilty of negligence proximately causing his injuries in the following respects, to-wit: that tire place appellant furnished appellee to work was not a safe place because of the defective reducer coupling; that the winch to which the line that was connected to the hose was not secure; that the line to the cargo hose was attached to the winch; that the line to the cargo hose was not attached to the deck; that the mate on watch failed to properly supervise the discharge operations; that appellant, its agents and representatives were negligent in failing to turn off the pumps as soon as the reducer coupling broke and in failing to furnish safe equipment with which to work. Ap-pellee further alleged that the circumstances under which his injury occurred were such as do not ordinarily occur in the absence of negligence, that the vessel was under the control of appellant, and appel-lee invoked the rule known as res ipsa loquitur.

Appellee also alleged that the S.S. Hess Diesel was unseaworthy, in the following particulars proximately causing the injury sustained by appellee, to-wit: that the ship in question was not a safe place to work because of the kerosene on the deck; that the reducer coupling was defective in that it broke while being put to its ordinary use; that the discharge hose, line and winch were not properly rigged; that the power was left on the winch to which the line to the cargo hose was attached without an attendant being present; that the winch to which the line was attached was defective, and that the breaking of the cargo reducer or coupling under the circumstances speaks for itself to establish the unseaworthiness of the vessel, and appel-lee invoked the doctrine of res ipsa loqui-tur.

No reversible error is presented in any of appellant’s points in this connection. To disturb the judgment it would be necessary to hold each of such points well taken. The issues complained of were supported by appellee’s pleadings either generally or specifically. Some of these pleadings were general in their nature and no objections were made thereto, such as the pleadings upon which special issues numbers 1 and 19 were based. Other special issues such as issues Nos. 13 and 21 were submitted under the doctrine of res ipsa loquitur and in such cases a general allegation and submission of the issue is proper. Dallas Railway & Terminal Company v. Clayton, Tex.Civ.App., 274 S.W.2d 422.

As noted, an alternate plea of recovery by appellee was based upon alleged unseaworthiness of the S.S. Hess Diesel. In 91 C.J.S. Unseaworthy, 507, 508, it is stated that unseaworthiness “is a comparative term, and in its ordinary sense means a deficiency of the vessel in equipment.” It is indicated that in determining seaworthiness, consideration must be had for the vessel, the voyage and the cargo; that inability to withstand the ordinary strain of loading or discharging cargo constitutes unseaworthiness; that seaworthiness contemplates a reasonable fitness of the vessel for the purpose of the voyage, so that its cargo may be carried safely and delivered in good condition; that a material consideration is the fitness of the ship for carrying the particular merchandise which it takes on board. Appellee’s pleadings supported the issues bearing upon the question of unseaworthiness and the court did not err in submitting such issues to the jury. The findings in answer to such issues fully support the judgment. Appellant’s points in this connection are overruled.

There was ample evidence to justify the submission of special issues to the jury and the answers of the jury thereto to the effect that the winch to which the line was attached was defective and was not secured. We overrule appellant’s points urging that there was no evidence and that the evidence was insufficient to support such findings.

Appellee alleged and the evidence is undisputed that the pumps were not cut off as soon as the reducer coupling parted and that the pump man was not at the switch at the time. Contrary to appellant’s contention, the submission of special issue No. 3, inquiring whether the failure to so turn off the pumps was negligence did not amount to a comment by the court on the weight of the evidence to the effect that the pump man was under a duty to turn off the pumps as soon as the coupling broke.

The court likewise did not err in submitting over a similar objection on the part of appellant special issue No. 5 inquiring whether the fact that the line was not attached to a cleat was negligence. We also overrule appellant’s point urging that the matter inquired about in special issue No. 5 was irrelevant and immaterial because no inquiry was made concerning whether the negligence inquired about was that of the appellant. The matter inquired about constituted a part of the operation of the ship’s business and whoever the person or persons may have been performing such operations they were agents of appellant.

It is urged by appellant that the court erred in submitting to the jury over its objection Special Issue No. 17, which inquired whether the reducer coupling was defective because it constituted a re-submission of Special Issue No. 7, and therefore, emphasized appellee’s theory of the case and in all probability influenced the jury in favor of appellee. This point is not well taken. Appellee sought recovery under the Jones Act which requires negligence as a basis of recovery and under the General Maritime Law based upon unseaworthiness regardless of negligence. Appellee was entitled to a separate and independent submission of the two grounds or theories of recovery sought in his pleadings and supported by the evidence. Rule 48 Texas Rules Civil Procedure, Texas General Indemnity Company v. Scott, 152 Tex. 1, 253 S.W.2d 651.

Appellee took the witness stand and was permitted to testify over appellant’s objection that the reducer coupling here involved was properly regarded as part of the ship’s gear, stating that all ships have to carry reducer couplings because they will sometimes be in a port where a shore line is smaller than the ship’s line on the manifold and it must therefore be reduced. Appellant objected to the testimony urging that it amounted to a conclusion. Appellant says that the reducer coupling in question was never identified as belonging to the ship and calls attention to appellee’s further testimony that he did not know whether this reducer coupling belonged to the ship or not. The point presented in this connection is overruled. Ownership of the reducer coupling which broke is not material to appellant’s liability. Appellee was entitled to recover if he sustained injuries because of unseaworthiness of the S.S. Hess Diesel. A vessel is unseaworthy if its equipment is defective. It is held that a vessel is un-seaworthy and its owner is liable for injuries sustained by a seaman thereon because of defective equipment brought aboard the vessel by its owner. Petterson v. Alaska S.S. Co., Inc., 9 Cir., 205 F. 2d 478, affirmed 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798.

Appellee’s wife was called as a witness and upon direct examination by appellee’s counsel inquiring if the injuries sustained by appellee had anything to do with their marital relationship, appellee in a display of emotion jumped up and left the court room. Immediately thereafter counsel for appellant made a motion for mistrial based on the fact that such conduct was highly prejudicial to appellant. In appellant’s second point it is contended that the court erred in overruling and in failing to sustain his motion for mistrial. In our opinion the evidence concerning emotional display by appellee before the jury was not such as was reasonably calculated to cause or to have probably caused the rendition of an improper verdict. Appellant did not contend in the trial court that the verdict was excessive nor did he assign such as a ground for a new trial. This point is overruled.

In appellant’s 21st point it is contended that the court erred in submitting to the jury special issue No. 27, which inquired concerning the damages sustained by appellee because of his injuries. Appellant contends that there was no evidence of probative force from which the jury could determine (1) the amount, if any, of earnings lost by appellee from the time of his injury to the time of the trial, (2) the loss, if any, of appellee’s earning capacity, if any, in the future, and (3) that there was likewise no evidence upon which the jury could base a finding of damages for physical pain and suffering. This point is overruled. Appellant has presented no point and did not contend in the trial court that the verdict was excessive. The contention is that there was no evidence of probative force upon which an issue concerning damages could be based. The contention is not well taken. There was evidence' to the effect that Garcia, as a result of his injury, has lost between two and three months each year as an able-bodied seaman since the time of his injury; that the average earnings of an able-bodied seaman has increased from around $525.00 per month at the time of appellee’s injury to around $600.00 at the time of the trial; that appellee at the time of his injury was sailing as an able-bodied seaman because of difficulty with the Master Mates & Pilots Ass’n., but was free to go back to sailing, as a mate, after one year; that after the injury he sailed from December 28th, 1956, through July 5th, 1957, as an officer but found that he could not do this work because of the injuries complained of; that there is a pay differential of about $300.00 per month between the earnings of an able-bodied seaman and a second officer and about $50.00 for a third officer; that Garcia was 46 years of age with a life expectancy of 24.43 years, and that his condition is about the same as it was before he received another injury in March 1956, and that he has to place boards under his mattress to sleep even when on board ship. Appellee’s medical witness testified that his condition was permanent.

In appellant’s third point it is contended that the court erred in overruling and failing to sustain appellant’s motion for mistrial based upon the cross examination of Dr. J. S. Oliver, concerning a suit against him for damages as a result of alleged malpractice. Dr. Oliver had testified, in effect, that appellee was in excellent physical condition and had been for the past five years. He based his testimony principally upon the records of ap-pellee’s pre-employment examinations kept in the doctor’s office or clinic. The records covered about seventeen different examinations. The Doctor had seen Garcia only one time and did not remember him. The remainder of the examinations, as shown by the records of the clinic, had been conducted by a male nurse under the doctor’s direction. Dr. Oliver testified that the entries on the record had been made at the time of the examinations. Counsel for ap-pellee, on cross examination, made inquiry as to whether entries made in the hospital records at the Park View Clinic and Hospital, of which Dr. Oliver is part owner, were made at the time the transactions took place. Appellant objected to the question because “Mr. Garcia has never been in the hospital and it has nothing to do with that.” Counsel for appellee, thereupon, stated to the court that he thought that “he could tie it in with the record” and was willing for it to be stricken if he was unable to do so. Thereupon, the court indicated that it would be all right to go ahead with that line of questioning. Dr. Oliver denied that he had ever changed the records in the hospital. Counsel for appellee then proceeded to question the Doctor about a case in the 152nd District Court of Harris County in which the Doctor was defendant in a malpractice case and asked him if he had not testified in a deposition taken in that case to the effect that he had added to a record kept by the hospital. No objection was made to this question and the Doctor replied to the effect that he had gone back and added more information to the record but this was done before the controversy developed; that the change had not been made after the patient developed symptoms of tetanus; that he did not see the patient after he developed tetanus and that the patient went to another doctor. No request was made to strike the above testimony nor was there any request for an instruction to the jury not to consider it.

, Before the case was submitted to the jury appellant made a motion for mistrial based upon such cross examination of Dr. Oliver, urging that no instruction to the jury could prevent it from resulting in harm and prejudice to appellant and that appellant under the circumstances could not receive a fair trial from the jury. The sole question then is whether the matter complained of shows such prejudicial error that it could not have been cured by an instruction from the court. In our opinion such error is not shown. Appellant’s third point is overruled. An examination of the record as a whole does not show that the error complained of was so prejudicial and amounted to such a denial of appellant’s rights that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. R.C.P .Rules 434, 503; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; State of Texas v. Parrish, 159 Tex. 306, 320 S.W. 2d 330; Crofford v. Bowden, Tex.Civ.App., 311 S.W.2d 954; Alamo Cas. Co. v. William Reeves & Co., Tex.Civ.App., 258 S.W.2d 211.

We have carefully examined all points urged by appellant and find no reversible error. The judgment is affirmed.


author: TIREY, Justice.

text:
    J. R. GRAY COMPANY, Inc., Appellant, v. RITCHEY FLYING SERVICE, INC., Appellee.
    No. 4003.
    Court of Civil Appeals of Texas. Waco.
    May 17, 1962.
    Rehearing Denied June 14, 1962.

      Hassell & Hassell, J. W. Hassell, Jr., Dallas, for appellant.
    McGown, Godfrey, Logan & Decker, John W. McMackin and George Q. Mc-Gown, III, Ft. Worth, for appellee.
   TIREY, Justice.

The action is one for damages (for commission on sale of an airplane) on an alleged implied contract of agency. The cause was tried without the aid of a jury. The Court found that the plaintiff was entitled to recover, and that the reasonable commission was the sum of $10,000.00 and decreed accordingly. At defendant’s request the Court filed Findings of Fact and Conclusions of Law. We quote the pertinent parts: (1, 2, 3, 4, S and 6) That during the year 1960 Cleminson was a salesman for plaintiff, and Ritchey was President of plaintiff; that Gray was President of defendant, and Hubbard as sales manager for defendant; that in March or April 1960, Cleminson, as agent of plaintiff, originally contacted Harry Newton of Graham about the purchase or lease of a new airplane; that prior to May 27, 1960, Clem-inson, as agent for plaintiff, made two additional contacts with Newton concerning the purchase or lease of a new plane; “(7) Subsequent to May 27, 1960, Ritchey Flying Service, Inc., was asked to make no further contacts with Harry Newton, but to allow J. R. Gray Company, Inc., solely, to continue negotiations. This request was made by George Hubbard, representing J. R. Gray Company, Inc. Ritchey Flying Service, Inc. did step aside in this transaction;

“(8) On or about July 13, 1960, an M — 35 Beech Bonanza airplane was leased directly to Harry Newton by J. R. Gray Company, Inc.;

“(9) Ritchey Flying Service, Inc. was paid a commission of $5,357.80, or 20 per cent on the Harry Newton transaction by J. R. Gray Company, Inc.;

“(10) On March 21, 1960, Robert Clem-inson, representing Ritchey Flying Service, Inc., made the original contact with C. B. Christie of Wichita Falls, Texas, concerning the purchase of a new airplane;

“(11) On April 10, 1960, and April 18, 1960, Robert Cleminson, representing Ritch-ey Flying Service, Inc., made additional calls on C. B. Christie concerning the purchase of a new airplane;

“(12) Subsequent to April 18, 1960, George Hubbard and Edwin Ritchey jointly called on C. B. Christie of Wichita Falls, Texas, about the purchase of a new airplane ;

“(13) Within a week after the trip to Wichita Falls, Texas, by Edwin Ritchey and George Hubbard, J. R. Gray Company, Inc., acting through George Hubbard, sold a new airplane to C. B. Christie. Ritchey Flying Service, Inc., was not notified of this sale until after it had been consummated;

“(14) Ritchey Flying Service, Inc., was paid a commission of $5,308.20, or 20 per cent, by J. R. Gray Company, Inc., on the sale of an M-35 Beech Bonanza to C. B. Christie;

“(15) On February 2, 1960, Edwin Ritchey and Robert Cleminson, representing Ritchey Flying Service, Inc., contacted Charles Prothro in Wichita Falls, Texas, concerning the purchase of a new Beech airplane, and particularly the new Beech Queen-Air ;

“(16) Subsequent to February 2, 1960, and prior to the middle of July, 1960, Robert Cleminson, as agent for Ritchey Flying Service, Inc., made a number of contacts with Charles Prothro concerning the purchase of a new airplane;

“(17) In the middle of July, 1960, Charles Prothro’s old airplane crashed in Colorado. Immediately after this accident, Edwin W. Ritchey was contacted by J. R. Gray and George Hubbard who asked that Ritchey Flying Service, Inc., step aside and let J. R. Gray Company, Inc., handle all further negotiations with Charles Prothro;

“(18) On September 6, 1960, Ritchey Flying Service, Inc., was billed $56.51 by J. R. Gray Company, Inc., which represented the cost of demonstrating a Beech-Queen-Air plane to Charles Prothro in Wichita Falls, Texas. This charge was paid by Ritchey Flying Service, Inc.;

“(19) On or about November 3, 1960, J. R. Gray Company, Inc., sold a new Queen-Air plane to Charles Prothro for $145,000.00;

“(20) Ritchey Flying Service, Inc., was not paid a commission on the sale of the airplane to Charles Prothro although its agents had made the original contacts, had stepped aside at the request of J. R. Gray Company, Inc., and subsequently Ritchey Flying Service, Inc., had paid the cost of demonstrating the plane which was purchased ;

“(21) The Court further finds all additional facts, circumstances and inferences necessary to support its judgment herein rendered.”

“CONCLUSIONS OF LAW

“(1) The written contract between Ritch-ey Flying Service, Inc., and J. R. Gray Company, Inc., of January 20, 1960, was abandoned by the parties prior to the Newton, Christie and Prothro transactions.

“(2) Ritchey Flying Service, Inc., was the agent of J. R. Gray Company, Inc., in the lease of the new airplane to Harry Newton and the sale of new airplanes to C. B. Christie and Charles Prothro. Such agency arose by action of the parties in consummating each of these transactions;

“(3) Ritchey Flying Service, Inc., through its agents and employees, was instrumental in bringing together Charles Prothro and J. R. Gray Company, Inc., and J. R. Gray Company, Inc., as a result thereof, sold a new Beech QueemAir airplane to Charles Prothro on terms satisfactory to J. R. Gray Company, Inc.;

"(4) Ritchey Flying Service, Inc., was the procuring cause of the sale to Charles Prothro by J. R. Gray Company, Inc., of the new Beech Queen-Air airplane;

“(5) Ritchey Flying Service, Inc., is entitled to a reasonable commission on the sale of the airplane to Charles Prothro;

“(6) A reasonable commission to Ritchey Flying Service, Inc., on the sale of the airplane to Charles Prothro based upon the extent and character of the services and the circumstances under which they were rendered is $10,000.00.”

In response to defendant’s motion for additional Findings of Fact, the Court further found:

“REQUESTED FINDINGS OF FACT

“(1) With regard to Defendant’s Requested Finding No. 1, the Court finds that its original finding of fact No. 21 was made pursuant to and in conformity with Rule 299, Texas Rules of Civil Procedure and that therefore no further finding is necessary;

“(2) With regard to Requested Finding No. 2, the Court finds that Plaintiff and Defendant did enter into a written contract on January 20, 1960, designated as ‘Dealer Agreement’ but that as set out in Conclusion No. 1, heretofore filed by this Court, in its finding of fact and conclusion of law, such contract was abandoned by the parties prior to the Newton, Christie and Prothro transactions and that an agency relationship arose between Plaintiff and Defendant with regard to these transactions by action of the parties;

“(3) With regard to Requested Finding No. 3, the Court finds that Defendant did not account to Plaintiff for commissions under the terms of the contract of January 20, 1960, on the Newton and Christie transactions but accounted to Plaintiff for commissions as agents under the implied agency which arose by action of the parties;

“(4) With regard to Requested Finding No. 4, the Court finds that Harry Newton did not present himself at the offices of Defendant for the purpose of leasing or purchasing an airplane without solicitation by Defendant since such original solicitation was made by Defendant’s agent, Ritch-ey Flying Service, Inc., through its agents and employees;

“(5) With regard to Requested Finding No. 5, the Court finds that C. B. Christie did not present himself at the offices of Defendant for the purpose of purchasing an airplane without solicitation by Defendant;

“(6) In view of the Court’s finding in answer to Requested Finding No. 5, it is not necessary to make any finding with regard to Requested Finding No. 6;

“(7) With regard to Requested Finding No. 7, the Court finds that there was no discussion between Plaintiff and Defendant prior to November 1, 1960, regarding the withdrawal from or the cancellation of the contract of January 20,1960; and the Court further finds that such withdrawal or cancellation was not necessary since Plaintiff and Defendant wholly abandoned such contract prior to the Newton, Christie and Prothro transactions and that such transactions were consummated on the basis of an implied agency agreement between the parties which arose by action of the parties;

“(8) With regard to Requested Issue No. 8, the Court finds that such finding would be irrelevant to any issue in this case since under the allegations of Plaintiff and proof adduced at the trial Plaintiff is entitled to a reasonable commission on the Prothro sale as procuring agent which the Court has heretofore found to be the sum of $10,000.00.”

The judgment is assailed on what appellant designates as 24 Points. Points 1 and 2 are to the effect that the Court erred in failing to sustain exceptions 3, 4, 6 and 9, because such exceptions sought to require plaintiff to make a proper declaration of its cause of action that it intended to establish; and 2, because the allegations complained of were of an implied contract, and because the petition showed upon its face that there was an express contract between the parties, there being no pleading in the alternative. We overrule each of these Points for reasons which we shall hereinafter briefly state. The plaintiff went to trial on its first amended petition. It is true that this pleading did allege that plaintiff entered into a dealership contract on January 20, 1960, but that after orders for the first 4 airplanes were made, giving the dates and style of the claims, that this contract was completely abandoned by the parties, and that plaintiff relied for its recovery on an implied contract. The pleading alleged specifically three sales by naming purchasers; how such sales were made and by whom they were made for the purpose of showing abandonment of the written contract, and further alleged the method of compensation paid to it by appellee for two of the three sales, and further alleged appellant failed to compensate appellee for the third sale. It specifically alleged the terms of the third sale and reasons why it was entitled to a commission, and also alleged it was a procuring cause of the third sale to Prothro, and further alleged that its reasonable commission on said sale, due to its relationship with appellant as its agent, was the sum of $15,000.00. The petition further alleged exemplary damages, but this feature was stricken and no errors cross assigned. We are of the view that plaintiff’s amended pleading meets the provisions of Rule 47, Texas Rules of Civil Procedure, and that there was no error in overruling the special exceptions. This view is supported by 2 McDonald, Texas Civil Practice, Sec. 612, p. 552. Appellee, by its pleading, did not attempt to recover on the express contract referred to in its pleadings, but on the contrary alleged that this contract was abandoned by the parties, and that an implied contract arose by the subsequent action of the parties. In McDonald v. Wm. Cameron & Co., Tex. Civ.App., 80 S.W.2d 1065, n. w. h., we find this statement of the Rule:

“An implied contract is one which arises from the dealings of the parties, from which it is apparent that the minds of the parties met on the terms of the contract without any legally expressed agreement thereto. The implied contract ofttimes is established in the fact of the contention of one of the parties that he did not so agree or understand himself to be agreeing to any such contract. This is sometimes said to be, because it would be inequitable to allow him to repudiate the benefit of his acts,” (citing cases).

See also Martin v. Campanaro, 156 F.2d 127, Cir.Ct.App., 9 Cir., Writ of Cert. denied, 329 U.S. 759, 67 S.Ct. 112, 91 L.Ed. 654. We think it is clear from the pleadings of the appellee and the evidence submitted to the Court that the recovery in this cause is and was based on an implied contract and not on any theory of quantum meruit or quasi-contract.

Points 3 to 5 inclusive are to the effect that the Court erred in rendering judgment on an implied contract because it was undisputed that the parties had entered into an express contract, and because ap-pellee had plead an express contract, and because there was no showing of a rescission by the parties, and recovery could be had only if authorized by the written contract; that since appellee had contracted in writing as a dealer in airplanes distributed by appellant and was unsuccessful in making any sales except such as were procured through the efforts of appellant, and which sales were accounted to appellee as though the same had been made by appel-lee and were accountable under the contract, that appellee cannot be heard to say that the contract itself had been abandoned and could not recover as in quantum meruit upon an implied obligation. We overrule each of these points for reasons which we shall hereinafter briefly state. We have previously stated that pleading is sufficient to admit proof showing an abandonment of the original contract entered into between the parties, and that it is likewise sufficient to admit proof that an implied agency was thereafter created by action of the parties. It is clear from the terms of the written contract that (1) planes were to he sold by appellant to appellee for resale; and (2) appellee was to receive a discount on the list purchase price from appellant; (3 and 4) appellee was free to set its own selling price, and appellee was never called upon to pay for appellant’s demonstration flights; (5) commission paid to appellee on sales were never contemplated by the terms of the original contract between the parties. As we understand appellant’s contention, it is that since the parties hereto entered into the dealership contract dated January 20, 1960, that such contract remained binding upon the parties in the face of ample testimony which shows the abandonment of that contract subsequent to January 20, 1960. Appellee specifically set out three separate sales on which it relied, and on which it tendered evidence. Testimony tendered is to the effect as to the first of these transactions, plaintiff contacted and found prospect Newton, and that during the time that these negotiations were in force and effect, plaintiff was requested to discontinue its negotiations with the prospect prior to the sale, and all the terms of the sale, date, and price to be paid for trade-in were dictated by appellant and presented to appellee on a “take or leave it basis.” Appellee acceded to appellant’s request, and thereafter appel-lee completed the sale, and a plane was transferred to Newton out of appellant’s stock, and thereafter appellee received a statement from appellant which designated appellee’s compensation as a commission on this particular sale. The second sale was a prospect by the name of Christie, who was contacted by appellee, and during the first and second transactions appellee disclosed his prospect to appellant, and thereafter, appellant asked appellee to let it handle the transaction, and he acceded to this request, and the transaction was consummated on appellant’s terms, which appellant knew were unsatisfactory to the appellee, and without appellee’s knowledge. Appellee did not know of the terms of the sale until after it was made. In this transaction the old plane was taken in trade at appellant’s price, and sold to appellee on a “take or leave it basis.” Appellee was to get whatever he could for the old plane, and here again a commission was paid to appellee. The final transaction was the one with Prothro. Appellee and his agent contacted Prothro, and after negotiations with Proth-ro, appellant requested appellee to let it handle Prothro, which appellee agreed to do. With reference to this transaction Ritchey testified to the effect that Prothro was in Colorado in the summer of July, 1960, and while there he had an airplane accident in which his plane was damaged, and that when he found this out he called the appellant’s office and talked with both Gray and Hubbard, his sales manager. It was Gray and Hubbard’s idea to take a plane to Prothro, and they asked Ritchey if he would pay the expense of this trip, and he said he would; that the trip was not made because Prothro objected to them bringing a plane to him there. At a later date Gray contacted him and asked him if he would lay off of attempting to sell Proth-ro an airplane; that Gray and Hubbard said they were in a better position to close the deal than he. He testified that they said to him: “it was an old adage that too many cooks might spoil the broth.” He further testified:

“Q. Was there any discussion at this time about the commission?
“A. Since I didn’t own an airplane that the commission would be approximately ten percent of the sale price of the airplane.
“Q. * * * what conversation did you have after this conversation with Mr. Hubbard and Mr. Gray ?
“A. Mr. Hubbard paid a visit to my office after this conversation took place and instructed me not to make any further attempts to sell Mr. Prothro an airplane, and he was in my office a short while, a very short time; when he received a phone call from Dallas and he says, — he used this expression, ‘My God, Mr. Prothro is over there ready to buy an airplane.’ And with that he dashed down the steps and was gone.
“Q. Did Mr. Hubbard at any time before the sale was consummated call you — ?
“A. Oh yes. Yes.
“Q. — concerning the terms?
“A. He called me. Right at this time he called me up and asked me if I would leave it up to him to have complete authority to close the deal as they seen best fit; could he close it and use his own initiative in the transaction.
“Q. He was asking you?
“A. He asked if it was all right with me and I replied, ‘Absolutely not.’
“Q. For what reason?
“A. I asked him if there was going to be any other consideration, an oil well traded in or a cracked up airplane traded in for this. He said, no, it would be a straight retail sale. I asked him if there would be any discount and he said a straight retail sale and I said, ‘Hubbard, I would be foolish to stand in your way if that is the transaction.’ He assured me I would receive my commission on the retail trade, and there would be no other consideration taken.”

Mr. Gray testified in part with reference to the Newton deal:

“Q. If he didn’t take the deal at all you sold the plane and he didn’t get anything ?
“A. That is right.”

With reference to the Prothro sale he testified in part:

“Q. * * * Now, on the Prothro transaction you say that your exact words were not to tell them to lay off of Prothro, is that correct?
“A. Yes, that is correct.
“Q. But even from your side of the story it had the same effect, the same general idea, to let you handle it instead of Mr. Ritchey on the balance of the negotiations?
“A. It was by mutual agreement.
It was something we discussed as advisable, and it was decided by both of us that would be the way most likely to produce a sale.
“Q. You suggested that?
“A. I suggested it. Yes.”
He further testified in part:
“Q. In connection with those further negotiations, and this is in the early part of September, Mr. Hubbard, I believe your sales manager, made a demonstration of a Queenair and a Bonanza to Mr. Prothro in Wichita Falls.
“A. Yes, sir.
“Q. And Mr. Ritchey was billed for the expense of the demonstration ?
“A. He was billed for the gasoline and oil, yes sir.
“Q. That was after the time you asked him to back off and let us handle the negotiations?
“A. Yes sir.”

We think the foregoing undisputed testimony brings this case under the rule:

“The consent of the parties to the rescission of a subsisting simple contract may be implied from acts, conduct with reference to their dealings with the property and need not be shown by an express agreement.”

See Lynch Davidson & Co. v. Denman Lumber Co., Tex.Civ.App., 270 S.W. 225, writ dis. See also Whaley Lumber Co. v. Reliance Brick Co., Tex.Civ.App., 2 S.W. 2d 911. In 17 C.J.S. Contracts § 388, p. 880, we find this statement of the Rule:

“The cancellation, abandonment, or rescission of a written contract may not only be written but it may also be oral or by implied agreement, which may be shown by the acts of the parties and the surrounding circumstances.”

See also Bartlett v. Stanchfield, 148 Mass. 394, 19 N.E. 549, 2 L.R.A. 625, (Mass.Sup.Jud.Ct., 1889); St. Paul Fire & Marine Ins. Co. v. Pipkin, Tex.Civ.App., 207 S.W. 360, n. w. h.; O’Loughlin v. Poli, 82 Conn. 427, 74 A. 763, (Sup.Ct. of Err. of Conn., 1909). In Holmes v. Tyner, Tex.Civ.App., 179 S.W. 887, n. w. h., we find this statement of the Rule:

“ * * * but it must be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances, it appears that there was at least an implied intention to create the relation, it will by implication be held to exist.” See also Brinker v. First Nat’l. Bank, 37 S.W. 2d 136, (Tex.Com.App., 1931) Moore v. El Paso Chamber of Commerce, Tex.Civ.App., 220 S.W.2d 327; Dodson v. Dooley, Tex.Civ.App., 280 S.W.2d 758, n. r. e.; Tudor v. Thomas, Tex.Civ.App., 301 S.W.2d 733, n. r. e.

We think it is clear from the record that on the sales to Newton and Christie, appellee, as a result of appellant’s course of action, acted as appellant’s sales agent and received commissions therefor. Moreover, it is equally clear that the actions of the appellant in the Prothro transaction, were sufficient to create the agency relationship in appellee in the procuring of the purchaser and in the sale to the purchaser. Moreover, the trial court was the trier of the facts, and it was his duty to find the facts, and we think under the testimony here tendered that the trial court was certainly justified in finding that the original contract had been abandoned, and that there had been created an implied agency contract between the parties, and that under the testimony tendered the appellee had earned his commission under the implied agency agreement. It is without dispute that neither the sale to Newton nor to Christie were made and handled under the terms of the written contract, and it is without dispute that the appellant recognized this and paid Ritchey a commission on each of these sales. We think the testimony is ample to support the findings of the Trial Judge that the appellee was the procuring cause of the sale. See 3 C.J.S. Agency § 185, p. 86 and Keener v. Cleveland, 250 S.W. 151 (Tex.Com.App.). See also 17 Tex.Jur., 2d Damages, Sec. 197, and cases there cited, and Bond v. Hancock, Tex.Civ.App., 163 S.W. 660. Where the evidence is ample to support the finding of the Trial Court, the Court of Civil Appeals cannot substitute its findings for that of the Trial Court. See Wilson v. Teague Indep. School District, Tex.Civ.App., 251 S.W.2d 263, writ ref., Points 1 and 2. Also Consolidated Cas. Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, n. r. e., Pt. 5, p. 715. Being of the foregoing view, we think it was the duty of the trial court to enter the decree it did in view of its findings, and being of this view, each of the other points tendered raised by appellant pass out of the case; however, if we be mistaken in this view, they are expressly overruled.

The judgment of the trial court is affirmed.


author: RICHARDS, Justice.

text:
    GUARANTEE MUTUAL LIFE INSURANCE COMPANY, Appellant, v. William A. HARRISON, Commissioner of Insurance, et al., Appellees.
    No. 10968.
    Court of Civil Appeals of Texas. Austin.
    May 23, 1962.
    Rehearing Denied June 13, 1962.

      Dan Moody, Jr., Austin, for appellant.
    Will Wilson, Atty. Gen., Bob E. Shannon and Dudley D. McCalla, Asst. Atty. Gen., for appellees.
   RICHARDS, Justice.

Guarantee Mutual Life Insurance Company, appellant, brought suit against William A. Harrison, Commissioner of Insurance of the State of Texas, Jesse James, State Treasurer of the State of Texas, Will Wilson, Attorney General of Texas, and the State Board of Insurance of the State of Texas, appellees, under the provisions of Art. 1.05, Title 122A, Taxation-General, Vernon’s Civil Statutes, for the refund of certain gross premium taxes assessed and collected from appellant under the provisions of Art. 4769, V.C.S., for the calendar years 1957 and 1958, which taxes were paid under protest. After trial before the Court without a jury, the Trial Court entered a “take nothing” judgment against appellant, from which judgment this appeal has been perfected.

Appellant bases its appeal upon three points of error to the effect that the Trial Court erred in holding that in computing its taxes for the years 1957 and 1958, the ratio of its “Texas securities”, to its similar securities owned in the State of Nebraska for the purpose of determining the applicable tax rate under Art. 4769, V.C.S., appellant was required to include any part of its Nebraska real estate which was of such character that it would not have been included, if located in Texas, within the term “Texas securities” as that term is defined in Art. 3.34, Texas Insurance Code, V.C.S.

In its brief appellant asserts that the principal issue to be decided is the construction of the phrase “similar securities” as used in Art. 4769, V.C.S., the “gross premium” tax statute. This statute provides that the tax rate applicable each year for an insurance company not organized under the laws of Texas shall be based on the ratio of the amount the company had invested in “Texas securities” on December 31st of the preceding year to “the amount that it had invested in similar securities in the State in which it then had the highest percentage of its admitted assets invested.”

The present controversy arises from different interpretations of the following portion of Art. 3.34, Insurance Code:

“The investments required by this chapter may be made by the purchase of not more than one building site, and in the erection thereon of not more than one office building, or in the purchase, at its reasonable market value, of such office building already constructed and the ground upon which the same is located in any city of the State of more than four thousand (4,000) inhabitants.

Art. 3.40, Texas Insurance Code, also provides that a life insurance company organized under the laws of Texas may secure, hold and convey “one building site and office building for its accommodation in the transaction of its business and for lease or rental * *

On December 31, 1957, appellant owned and used a building site and office building in Nebraska. It also owned certain real estate in Nebraska which it has acquired for the purpose of erecting thereon an office building for its use upon completion. On December 31, 1957, the new office building was being constructed upon the property so acquired but not having been completed as of that date, it was not being utilized by appellant. The building having been completed during the year 1958, appellant moved its office into the new building which was included in its tax return for the year ending December 31, 1958. The controversy concerning the taxes which ap-pellees assert that appellant should be required to pay are therefore confined to taxes due based upon the tax return for the year 1957, since the old office property which was then utilized by and included in the 1957 tax return of appellant was separate and distinct from the uncompleted new office building.

The specific issue involved is whether the building site which was acquired and owned by appellant during the year 1957 for the purpose of erecting an office building thereon which had not been completed for appellant’s use on December 31, 1957 constituted a similar security in computing the ratio in addition to the building site and office building which appellant was using on December 31, 1957 or whether only the building site and office building which was then in use by appellant constituted a “similar security” if located in Texas. Appellant contends that since Art. 3.34 permits an insurance company organized under the laws of Texas to legally own only one building site and office building thereon, the inclusion of the building site acquired in 1957 upon which an office building was being erected but not completed for use on December 31, 1957, could not have been a legal investment in “Texas securities” since a domestic insurance company would have been prohibited'from owning and holding more than one building site and building thereon under the provisions of Arts. 3.34 and 3.40 of the Insurance Code.

Appellees’ position in requiring appellant to report the investment in the building site and the uncompleted office building in addition to the building site and office building then in use by appellant as a “similar security” in its 1957 tax return is based upon an Attorney General’s opinion rendered to the Board of Insurance Commissioners, dated December 7, 1951, holding that the use by the Legislature of the phrase “similar securities” rather than “identical securities” implied a legislative intent to include property of a character which would not be included within the term “Texas securities” if located in Texas and if the Legislature had intended that the word “similar” should mean “identical,” then it would have used the latter word, in which case the position taken by appellant would be correct.

Webster’s New International Dictionary (2nd Ed.) defines “similar” as “nearly corresponding; resembling in many respects; somewhat like; having a general likeness.” It is a word with different meanings depending on the context in which it is used.

Art. 3.41, Texas Insurance Code, governing authorized investments in securities or property for foreign life insurance companies reads as follows:

“The assets of any ‘foreign company’ shall be invested in securities or property of the same classes permitted by the laws of this State as to ‘domestic’ companies or by other laws of this State in other securities approved by the Board of Insurance Commissioners as being of substcuitially the same grade.” (Italics supplied.)

Appellees contend that the use by the Legislature of the words “of the same classes” and “of substantially the same grade” in Art. 3.41 indicates a legislative intent that such words should be construed as having the same meaning as the words “similar securities” used in Art. 4769. With this contention we are unable to agree for the reason that if the Legislature had intended that the words “similar securities” in Art. 4769, V.C.S., were to be given the same meaning as the words “of substantially the same grade” or “of the same classes” as used in Art. 3.41, Insurance Code, it would have adopted and used the same words in each article. Presumably, in the use of the different phrases or words in the two articles, the Legislature intended to differentiate between the meaning and construction of the words when used in statutes enacted for different purposes.

Art. 3.34, Insurance Code, provides that cash deposits in regularly established National or State banks or trust companies in Texas on the basis of average monthly balances throughout the calendar year constitute “Texas securities”. Assuming ar-guendo that the Legislature had omitted deposits in National banks from its definition of “Texas securities”, then any deposit made by appellant in a National bank in the State of Texas would not have constituted a “Texas security” for which it could receive credit under the provisions of Art. 4769, although the deposits in a National bank in the State of Nebraska would constitute admitted assets both in Nebraska and Texas “of the same classes” or “of substantially the same grade.”

It has long been the practice of the various Legislatures of Texas in enacting laws taxing gross premiums received by foreign insurance companies authorized to do business in Texas to encourage investments by such companies of part of their assets in Texas by providing for reduction in the rate of tax. Board of Insurance Commissioners v. Prudential Fire Insurance Co., Tex.Civ.App., 167 S.W.2d 578, error ref. In the preceding example, a foreign life insurance company would acquire no benefit by depositing its funds in a National rather than in a State bank in Texas for -.in such event it could not receive the benefit of the lower tax rate provided in Art. 4769, V.C.S.

Without further delving into this problem in semantics, we hold that in using the words “similar securities" in Art. 4769, V.C.S., the legislative intent was to require appellant and any other foreign life insurance company required to pay gross premium taxes under the provisions of Art. 4769, V.C.S. to include in its tax return under the words “similar securities” only such property or securities owned by it in the State in which it had the highest percentage of assets invested as it would have been permitted to invest or own in “Texas securities” as defined in Art. 3.34, Insurance Code in the State of Texas.

Under this interpretation, since appellant would not have been permitted by the laws of Texas to own more than one building site and office building thereon in the State of Texas, it was not required to report in its tax return for the year 1957 the building site acquired by it for the erection of an office building which had not been completed on December 31, 1957 as a “similar security” and therefore was not required to pay the tax erroneously assessed against it by appellees.

Appellees urge that if the interpretation of the words “similar securities” advanced by appellant is adopted, a foreign insurance company by carefully investing in property or securities of a character different from those defined as “Texas securities” in Art. 3.34, could qualify for the minimum tax rate under Art. 4769 with only a minimum amount of its admitted assets invested in “Texas securities”. This contention is purely hypothetical but if such condition were to arise, its remedy is the concern of the legislative rather than the judicial branch of the State government.

Appellees also contend that since the rendition of the Attorney General’s opinion in 1951, there has been a long standing and continuous administrative or departmental construction in accordance therewith. Upon the trial, to support their burden of proof to establish such administrative construction, appellees offered the testimony of Miss Virginia Gardner, Tax Analyst for appellee Board of Insurance, who stated that since 1953 the Board of Insurance and its predecessors in office have “always used the market value of the total real estate held in the State in which the company had its highest admitted assets” in computing the tax rate under Item 12 of the Tax Rate Form. Item 12 of the Tax Rate Form reads as follows:

"All real estate owned by Col. 1 life insurance companies Texas Se in this State on December curities 31, 19 — , all thereafter acquired by foreclosure of a lien thereon, and one home office building including building site, in a city of more than four thousand inhabitants, all to the extent of their reasonable market value. - Col. 2 Similar Securities in State of-

Although Miss Gardner testified that she had consistently used the total real estate held in a State where the foreign company had its highest admitted assets in checking the applicable tax rate and that she could recall no occasion since 1953 in which the Department had permitted the real estate report to be treated differently, nevertheless she did not name any specific incident in which the so-called departmental interpretation had actually been applied by her until it arose in the instant case.

Mr. Paul Conner, Assistant to the Insurance Commissioner and Chief Clerk to the State Board of Insurance, testified that the Insurance Department had permitted Texas companies to list two home office sites as “Texas securities” during the interim while building or acquiring a new office building, but that the departmental practice had been to take no action against any company which owned two home office sites during the period when it was building or acquiring a new office building and still remaining in and using the old one, although admitting that such interpretation of Art. 3.40 might be questionable. The evidence offered by appellees fails to show any affirmative departmental construction in accord with the Attorney General’s opinion' other than as applied to appellant in the-case at bar.

While long standing departmental' construction of a statute by the officials charged with its enforcement and the opinions of the Attorney General are to be-given weight in arriving at the legislative-intent in the construction of a statute which is ambiguous or of doubtful meaning, nevertheless where the evidence fails to show am affirmative long standing departmental construction, or the construction of the statute by the Attorney General is in error, as here-we hold it to be, we do not consider that we are bound by such departmental construction or the opinion of the Attorney General in interpreting the words “similar securities”. Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96.

Appellees also contend that appellant is estopped to assert that any of its Nebraska real estate is not similar to “Texas securities” under the terms of Art. 3.41, Texas-Insurance Code, supra, relying upon that specie of estoppel which is based upon the acceptance and rendition by one having knowledge or notice of the facts and benefits arising from a statute which could have been rejected or contested, citing Houston Production Co. v. United States (S.D.Tex.), 4 F.Supp. 715.

Appellees admit that they do not rely upon the doctrine of equitable estoppel or estoppel in pais, but contend that since appellant has been granted a certificate of authority to do business in Texas and has permitted such certificate to continue in-effect, the Insurance Department by approving such certificate has expressed its opinion that appellant’s assets are invested in securities or property of the same classes permitted by the laws of Texas as to domestic companies or in other securities of substantially the same grade and therefo're being so invested, they are “similar securities” as that term is used in Art. 4769.

It is admitted that appellant has filed ■with the Insurance Department all of the required reports and statements which list in detail all of the securities or property-owned or held by appellant, including the real estate here in issue, and there is no contention by appellees that there had been any mis-statement, misrepresentation or concealment by appellant of any facts in ■such reports.

In order to claim an estoppel, a •party claiming its benefit must not only be without knowledge of the true situation hut the situation must be such that the party claiming the estoppel is without available means of acquiring knowledge of the truth, Hunt v. W. O. W. Life Ins. Soc., Tex.Civ.App., 153 S.W.2d 857, error ref., and if the means of ascertaining the true situation are available to such party and he fails to ascertain the true factual situation, the doctrine of estoppel cannot be relied upon even though there had been a material misrepresentation of facts. Grinnan v. Dean, 62 Tex. 218; Kelly v. Heimer, Tex.Civ.App., 312 S.W.2d 430, 434, error ref., N.R.E.

Mr. Paul Conner, for the Insurance Department, stated that all of the basic facts concerning the property owned by appellant, both in Texas and Nebraska, were contained in the reports of appellant filed with the Department and that based upon •such reports, the Department had satisfied itself that appellant had fully complied with the law before issuing a certificate of authority under the provisions of Art. 1.14, Texas Insurance Code.

Mr. Conner testified that from such information as contained in the various reports and tax return for the year 1957 filed by appellant, the Department could have ascertained that investment in real estate would be property presumably a legal investment in the State of Nebraska but an •equivalent investment in real estate could not have been acquired in Texas by a Texas ■company, and therefore it could have been determined that certain of the appellant’s property in Nebraska was not such as to fit the description of “Texas securities” had it been located in Texas. Appellees’ defense that appellant is estopped is without merit.

All of appellant’s points of error are sustained and all of appellees’ counterpoints are overruled.

The judgment of the Trial Court that appellant take nothing is reversed and judgment rendered that appellant recover from appellees the sum of $10,938.96, together with interest as provided by law, and for all costs of suit.

Reversed and rendered.


author: WALTER, Justice.

text:
    A. R. STOWE, Appellant, v. CITY OF CORPUS CHRISTI et al., Appellees.
    No. 3719.
    Court of Civil Appeals of Texas. Eastland.
    May 25, 1962.
    Rehearing Denied June 22, 1962.

      Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.
    I. M. Singer, City Atty., Corpus Christi, for appellees.
   WALTER, Justice.

This is an appeal by A. R. Stowe, a suspended policeman, from a summary judgment in favor of the City of Corpus Christi.

The evidence reveals that police officers of the City of Corpus Christi were on routine patrol on the night of February 24, 1959, when they saw officer Stowe emerging from the Village Liquor Store. Stowe was a police officer for the City of Corpus Christi but was not on duty. When Stowe saw the police car, he ran to his automobile which was in front of the liquor store. He was carrying approximately ten bottles of liquor at the time; he put the bottles in the front seat of his automobile, closed the door and started walking toward the police car. Stowe was unsteady on his feet, in a sloppy condition and very wet; his breath smelled very strongly of alcoholic beverages and his speech was slurred. The first thing that Stowe said to the officers was, “you finally got me” or words to that effect. When asked how he broke the glass in the liquor store, officer Stowe replied that he did it with a jack he had in the trunk of the car. He then showed the jack to the officers.

A disciplinary suspension was filed against officer Stowe on the 25th of February, 1959, at 7:00 p. m. Thereafter, on February 28, 1959, officer Stowe was indefinitely suspended by the Chief of Police, under Section 16 of Article 1269m. Within 120 hours after the indefinite suspension, the Chief of Police filed with the Civil Service Commission a written statement giving the reasons for such suspension; said written statement was filed with the Commission on March 4, 1959, at 5:23 p. m. The Chief of Police delivered a copy of the written charges to Stowe on March 4, 1959, at 3:45 p. m.

The Civil Service Commission had a public hearing after which they concluded that Stowe had violated certain of the firemen and policemen’s Civil Service Commission rules. The Commission’s judgment specifically found that Stowe had violated Rules Nos. 417, 418 and 419, of the rules and regulations of the police division of the City of Corpus Christi, Texas, and became subject to discharge under Par. D, E, F, I and P of Sec. 5, Art. 14 of the Rules and Regulations of the Civil Service Commission. The charge filed with the Civil Service Commission satisfied Sec. 1269m by specifically setting forth the acts that Stowe committed which the Chief of Police contended were in violation of the Civil Service rule. The Commission denied Stowe’s appeal from the Chief of Police’s order of indefinite suspension. Stowe appealed. The court granted a summary judgment in favor of the City and denied Stowe’s motion for summary judgment.

Stowe has appealed and contends the court erred in granting the City’s motion for summary judgment because (1) the court misapplied the substantial evidence rule, (2) the City failed to discharge its burden of proof under Rule 166-A, T.R.C. P., (3) the City did not introduce substantial evidence or any evidence before the trial court to support the findings of the Commission as to the time of Stowe’s suspension and whether or not charges were filed within 120 hours as required by Art. 1269m, V.A.T.S., (4) the judgment of the Commission fails to make a finding that Stowe was guilty of the violation of the Civil Service rules, (5) there is an absence of substantial evidence before the trial court to support the finding of the Commission as to the guilt of Stowe, and (6) in failing to grant Stowe’s motion for summary judgment.

Stowe filed a mandamus action against the Civil Service Commission and the Chief of Police of Corpus Christi to reinstate him as a policeman and to restrain the Commission and the Chief from acting on certain charges against him. The court dismissed the mandamus action but granted him a temporary injunction against the Commission and the Chief pending the appeal. Both parties appealed from such judgment. The Court of Civil Appeals at San Antonio in the case of Corpus Christi v. Stowe, 338 S.W.2d 767 (No Writ History) held that jurisdiction to determine the fact issues presented by Stowe’s petition for mandamus rested primarily in the Civil Service Commission, with right of appeal to the court after final decision of the Commission. The court sustained the judgment, dismissed the suit and held that it was not necessary to pass on the injunction matter. The court also passed upon one question that is involved in this appeal. Sec. 16 of Art. 1269m provides that the officer, filing the order of suspension, shall within 120 hours thereafter file a written statement with the Commission, giving the reasons for such suspension and “immediately furnish a copy thereof to the officer or employee affected by such act.” The copy of the charges were delivered to the officer approximately an hour and a half before they were filed with the Commission. Stowe contends this irregularity in service is not a substantial compliance with the statute and renders the proceedings of the Commission null and void. Justice Barrow held that if a copy of the charges were delivered to Stowe either before or at the time of filing, such delivery would be a compliance with the statute.

The City filed a motion for summary judgment and submitted affidavits in support of its motion. Stowe filed a motion for summary judgment and also submitted affidavits and other evidence in support of his motion for summary judgment. One of the basic duties of the court hearing a motion for summary judgment is to determine if there is any issue of fact to be tried, not weigh the evidence or try the issues. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; in the case of Webster v. Webster, Tex.Civ.App., 293 S.W.2d 820 the court said: “in a summary judgment proceeding, credence will be given to testimony most favorable to the party against whom the judgment is sought and evidence to the contrary will be disregarded.”

Stowe contends he was suspended on February 25, 1959, and if his contention is correct, the City failed to file written charges against him within 120 hours required by the statute. The City contends that the Chief of Police gave Stowe a disciplinary suspension on February 25, 1959, but not an indefinite suspension. The City contends the indefinite suspension was entered on February 28, 1959, and that the written charges were delivered to Stowe within the time provided for by the statute.

Our Supreme Court in the case of Southern Canal Company v. State Board of Water Engineers et al., 159 Tex. 227, 318 S.W.2d 619, on the subject of substantial evidence said:

“The type of trial referred to differs in important particulars from the trial of a suit to review the reasonableness of an order or a decision, rule, or regulation of an administrative agency, although the latter type of suit is also held to be a type of de novo trial in that the evidence is heard anew and the reasonableness of the agency’s action is independently adjudged by the court on the basis of evidence admitted in the judicial proceeding. (Cases cited) This latter type of trial has come to be known as a trial under the substantial evidence rule. The major side effects of a trial under the substantial evidence rule are that the only issue to be decided is one of law and trial of the fact issues by a judge or jury is avoided.”

We hold that the record reveals that the order of the Civil Service Commission was reasonably supported by substantial evidence.

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

The judgment is affirmed.