author: EDWARD P. HILL, Judge.

text:
    Earl SCUDAMORE, d/b/a Superior Acid and Cementing Company, Appellant, v. Paul W. HORTON and Globe Insurance Company, Appellees.
    Court of Appeals of Kentucky.
    March 1, 1968.

      Davis M. Howerton, Jr., Henry A. Trip-lett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellant.
    Henry T. Merritt, Louisville, for appel-lee, Paul W. Horton.
    William A. Miller, Louisville, for appel-lee, Globe Ins. Co.
   EDWARD P. HILL, Judge.

Appellant Earl Scudamore, doing business under the trade name Superior Acid and Cementing Company, appeals from a judgment for $20,000 rendered in favor of appellee Paul W. Horton after a verdict by an advisory jury in Horton’s suit for personal injuries he claims to have sustained when appellant’s truck failed to ascend a hill, rolled back down the same, and injured appellee.

Joined as a party defendant was Wallace G. Moody and his Somerset Machine Shop on the theory that Moody did certain un-workmanlike repairs on the truck involved that caused or contributed to failure of the truck to make the grade and run, uncontrolled, back down the hill. The work Moody did involved extending the length of the chassis 21 inches, which necessitated lengthening the drive shaft and brake lines sufficiently to correspond to the new length.

Globe Insurance Company is a party ap-pellee herein by reason of its obligation as insurance carrier for Horton’s employer. Globe has paid compensation benefits to Horton and was subrogated by the judgment to the right of Horton to the extent of compensation paid prior to the date of judgment.

The facts reveal that on August 27, 1964, Horton decided to acidize an oil well located near the top of a 30 to 35 degree incline. Horton engaged Scudamore to send his acid-carrying truck and do the job. Horton waited near the foot of the incline for the truck. Shortly, one Austin Franklin came along with the acid truck. Horton got in the truck, and they proceeded toward the incline to the well to be acid-ized. As they approached the incline, Horton says he started to Austin Franklin: “Austin, this is a pretty good hill, is this a good truck,” and that Austin said, “yes, this is an excellent truck.” After reaching a point near the crest of the incline, the truck “bogged down” and Franklin “pushed down on the gas to pick it up and all at once this terrific noise” was heard. Franklin then “put on the brakes and they went to the floor,” meaning that the brakes failed. The truck rolled back down the hill, out of control, throwing Horton out and causing his injuries.

An inspection of the truck after the wreck revealed the drive shaft was completely twisted in two pieces and that the brake line was also punctured, allowing brake fluid to be released preventing the brakes from operating.

Moody settled Horton’s claim before trial. No mention is made in the briefs concerning Scudamore’s cross-claim against Moody.

First, we should discuss appellant’s contention he was entitled to a “regular” jury trial. The circuit court empanelled an “advisory” jury. And from the best information we can glean from the record, the jury used by the trial court was from the regular panel, was accepted according to usual procedure, was fully instructed by written instructions and made the customary verdict as distinguished from verdicts containing only answers to interrogatories. Nevertheless appellant contends the trial court erred in overruling his motion for a regular jury trial.

On July 1, 1966, appellant filed amended answer wherein he alleged that Moody’s negligence or contributory negligence caused plaintiff’s injuries. His demand for a jury trial was made on July 9, 1966. The trial was begun on July 11, 1966.

The right to jury trial in civil cases is controlled by CR 38.01 and 38.02. The latter rule provides that the demand for jury trial must be made “not later than 10 days after the service of the last pleading directed to such issue.”

The demand was made within 10 days after the filing of amended answer on July 1, 1966, but appellee contends that appellant’s original answer contained a general denial and that the filing of an amended answer alleging that Moody alone was negligent was unnecessary, was fruitless, and was only for the purpose of attempting to bring his later demand for jury trial within the ten-day provision of the code. With this theory we are inclined to agree. In Clay’s Kentucky Practice, CR 38.02, Author’s Comment 3, page 523, appears the following: “The time is not extended as to original issues by raising new ones in a subsequent pleading.” We recognize that the courts indulge every presumption against waiver of the right to trial by jury. Rodenbur v. Kaufmann, 115 U.S.App.D.C. 360, 320 F.2d 679.

The counterpart of CR 38.02 in the Federal Rules of Civil Procedure has been interpreted in Connecticut General Life Insurance Company v. Breslin, 5 Cir., 332 F.2d 928 (1964), a case in which the pleadings were practically identical to those in the present case. It was written in Breslin at page 931:

“The original answer of the appellant, which did not contain a demand for a jury trial, contained a denial of the allegations of the appellee’s complaint that the insured died as a result of accidental means within the policy coverage. The amended answer, which contained a demand for a jury trial, was different from the original answer only by the addition of an affirmative allegation that the death of the insured was not effected through accidental means within the policy provisions, and that death was effected by causes reasonably foreseeable on the part of the insured. The amended answer did not raise any issues which were in any material zvay different from those presented by the original answer. In such a case the waiver originally made remains effective and the subsequent demand is ineffective.” (Emphasis added.)

To summarize: (1) We conclude appellant enjoyed a “regular” jury trial from every practical consideration, notwithstanding it was designated an “advisory” jury; (2) trial by jury was waived.

Appellant next urges that he was entitled to a directed verdict on the theory the evidence on negligence was too speculative and on the theory Horton assumed the risk.

First we think it clear from the evidence that two events concurred to cause the injuries: (1) the twisting apart of the drive shaft; and (2) the breaking of the brake line, leaving the truck on the hill without brakes. There was evidence that both the drive shaft and the brake line were rusty and corroded from leakage of acid (hydrochloric or muriatic acid) from the tank. Whether this corrosion weakened the drive shaft or brake line sufficiently to bring about the breakage is uncertain. Appellee also hints that the breaking of the drive shaft was caused by the unscientific extension of the same to accommodate the longer wheel base. Horton stated Scuda-more admitted on a visit to the hospital that “you know I think — what I am afraid of is that acid leaked and got on the brake and maybe the shaft. What happened to the brakes, I am afraid, is the acid got on it and deteriorated the line and that is what caused the accident.” This Scudamore denied.

The witness Compton said the brake line “was very rusty — more rusted than you usually see”; that “it was split out — it looked like pressure had pushed it up.”

Appellant admitted that “we had a few minor leaks around this connection from the bottom of the tank in the front”; that they threw cornmeal in the tank at times to stop the leaks. In any event, those were jury questions which were submitted by appropriate instructions.

In Crawford v. Alexander, Ky., 259 S.W.2d 476, a brake failure case, this court said:

“ ‘The jury are as much the judges of the inferences and conclusions to be drawn from the proven facts as they are of the facts themselves and if the inferences or conclusions drawn by them are such as might be drawn by a reasonable mind, the jury’s finding, based on such inferences or deductions, should not be disturbed even though the inferences or deductions may not have been those we would have drawn had we been sitting as triers of fact.’ ”

The following cases cited by appellant are not similar factually and are of little help: Jones v. Hinkson, Ky., 313 S.W.2d 415 (plaintiff tripped in an underwater hole in a swimming area) ; Hobson v. Turner, 299 Ky. 342, 185 S.W.2d 550 (tire blow out) ; Louisville & N. R. Co. v. Adams’ Adm’x, 301 Ky. 7, 190 S.W.2d 690, and McKamey v. Louisville & Nashville Railroad Co., Ky., 271 S.W.2d 902 (injuries at railroad crossing) ; Tinnell v. Commercial Carriers, Inc., Ky., 383 S.W.2d 914 (driver racing with another vehicle); Klingenfus v. Dunaway, Ky., 402 S.W.2d 844 (“wobbly” marks on gravel road, as evidence of defective steering gear); and Luckett v. Adolphus Cleaners, Ky., 262 S.W.2d 191 (oxalic acid crystals found in plaintiff’s hat band after having been cleaned by defendant, causing skin irritation and discoloration).

On the question of Horton’s “assumption of risk,” which we prefer to call contributory negligence, it is true Horton knew the difficulty experienced by vehicles in “making” the hill. In fact, as they approached the hill, Horton asked Franklin whether he had a good truck and made the observation that “this is a pretty good hill.” We just wonder whether Horton had a right to assume that Franklin knew the weight he was carrying and knew the capabilities of his truck.

We are not inclined to say as a matter of law that Horton was guilty of contributory negligence.

Instruction 1-a and 1-b is questioned by appellant on the ground that said instruction failed to inform the jury that before it could find against Scudamore on the defective brake theory it must find that he knew or should have known of the defective conditions.

It is provided by CR 51 that “no party may assign as error the giving or the failure to give an instruction, unless he objects thereto before the court instructs the jury, stating specifically the matter to which he objects and the grounds of his objections.” (Emphasis added.)

The only reasonable objection made by appellant to the instruction in question was made at the conclusion of plaintiff’s evidence and incorporated in his objection to the instructions at the close of the case. Here it is:

“Earl Scudamore moves the court for a directed verdict in his favor on the question of liability on the following grounds: * * * 1-a There has been no evidence that the defendant negligently maintained his truck. Quite to the contrary. The proof has been he did have periodic maintenance checks of his truck which is shown by Scudamore’s deposition read by the plaintiff.”

This objection merely states Scuda-more’s theory that the only evidence on the question of maintenance and inspection was his own evidence. It should be remembered, however, in this connection that there was evidence of rust and corrosion from leaking acid both on the drive shaft and on the brake line, and the jury inspected both. Anyway, we do not consider the objection to have stated specifically the matter to which he objected and the grounds of his objections as required by the rule.

True appellant made a proper objection to this instruction in his motion for judgment notwithstanding the verdict, but this came too late. See Young v. De Bord, Ky., 351 S.W.2d 502, and CR 51.

In Young, supra, it was written:

“The record discloses they objected to the giving of these instructions upon the ground there ‘is no evidence in the record’ upon which to base them. On this appeal they undertake to point out specific defects which are raised here for the first time, and this brings up the question of whether they can assign one reason for objecting to an instruction in the trial court and a different one on this appeal.
* * *
“Obviously, CR 51 condemns such a practice and, in consequence, we must hold they cannot now be heard on these matters.”

The objection was not seasonably made so as to enable the trial court to consider appellant’s theory.

In Swope v. Fallen, Ky., 413 S.W.2d 82 (1967), the rule of law that the owner of a motor vehicle has the duty to exercise ordinary care to see that the brakes are maintained in a safe condition was reaffirmed. Really the brake on a motor vehicle is the most important safety mechanism; and the older the vehicle grows, the greater the duty to inspect becomes. More care is required to keep an old vehicle going. The truck in question was a 1959 model. It had been altered, and the parts that failed were rusty and corroded. Furthermore, the product transported by the truck was inherently dangerous. The danger of operating an acid truck of such age and condition of use without safe brakes is obvious.

Appellant next contends that error was committed by the trial court when Dr. Stanley Collis, an orthopedic surgeon of Louisville, Kentucky, was permitted to read (by deposition) to the jury reports from Dr. George M. Lawson, an x-ray specialist, and Dr. Thomas M. Marshall also of Louisville.

Appellant is in a poor posture to object to the report of x-ray examination by Dr. Lawson due to the fact that filed in this record is a “stipulation” which contains this certificate by C. David O’Donnell, notary public:

“There appearing at the Louisville Methodist Evangelical Hospital, Louisville, Jefferson County, Kentucky, on June 21, 1966, at 4:00 P.M., Mr. Henry T. Merritt, Counsel for Plaintiff, Mr. David' M. Howerton and Mr. Norman A. Curtis, Counsel for Defendants, whereupon the following stipulation was made: STIPULATION : The Plaintiff and Defendants and each of them by Counsel do stipulate that the attached documents are copies of original records pertaining to Paul W. Horton, on file at the Methodist Evangelical Hospital and that both plaintiff and defendants each have a right to introduce said documents and/or read said documents at the trial of the accident to be heard as evidence in the above styled action. Mr. Curtis: All right? Mr. Merritt : Agreed. Mr. Howerton: Agree to that. Reporter’s note: Whereupon the following records were furnished to the reporter by the assistant medical record librarian attached hereto.”

Among those records thus agreed to be filed and used on the trial was a report of Dr. George M. Lawson, the x-ray man. This report contains all the information about which Dr. Collis referred in his deposition. So much for the objection as to the report of Dr. Lawson.

The objection to the reading by Dr. Collis of a letter or report from Dr. Marshall presents a more serious question for it was in effect the taking of evidence of Dr. Marshall without an opportunity by Scuda-more to cross-examine. It was improper, but let us see whether it was prejudicial. Here is the material part of the report of Dr. Marshall read to the jury by Dr. Collis:

“Impression: This man has sciatica which apparently is post-traumatic and is due apparently to injury of nerve roots comprising the sciatic nerve. It is extremely doubtful that he has a protruded inter-vertebral disc explaining part of his symptomatology, yet I believe that a Myelogram should be done to rule out any intraspinal pathology. Fractures of the transverse processes could have produced enough changes in or around the nerve roots to produce his present symptoms.”

Dr. Marshall’s reference to “protruded intervertebral disc” is not unfavorable to appellee’s contention, as is evidence by the testimony of Dr. George C. Cheatham, his chief doctor after his injury and during his convalescence, and about which we shall have more to say hereafter. However the report of Dr. Marshall to the effect that Horton “has sciatica” and “fractures of the transverse processes could have produced enough changes in or around the nerve roots to produce his present symptoms” is strong evidence in support of appellee’s theory as to the consequence of his injury. Let us examine the evidence with the question in mind, was this evidence merely cumulative ?

Prior to the injury, appellee was a “tall, thin” man, 44 years of age, in good health. He was confined to the hospital 26 days beginning August 27, 1964. His loss of earnings was approximately $4500 (15 months at $300). Dr. George C. Cheatham of Greensburg was appellee’s doctor while he was in the hospital and for some time thereafter. Dr. Cheatham referred appellee to Dr. Collis. We quote from the testimony of Dr. Cheatham:'

“A. Mr. Horton was admitted to the hospital on 8-27-64; he was discharged on September 22nd 1964.
Jjc ⅜ >jc ⅜ ⅝ ⅜
“A. * * * I might mention also that Mr. Horton had quite a bit of trouble in the hospital. He develop a paralytic ileus while in the hospital which in lay terms, this is where the bowels don’t function. He had to have tubes put in his stomach and we had to feed him with intravenous fluids, and he progressed along real well I felt for the amount of injury he incurred.
⅜ ⅝ ⅝ ⅜ ⅜ ⅜
“A. I discharged him on September 22nd, 1964; I again saw Mr. Horton on October 6, 1964, I saw him again on October 20, 1964; on November 2, 1964; on November 13, 1964, on Nov. 20, 1964; on Dec-cember 29, 1964; on July 19, 1965; on July 31, 1965; on August 13, 1965; on November 1, 1965; on ■ November 27, 1965; on March 15, 1966; and on April 23, 1966.
******
“A. Well, I felt that the reason this patient was experiencing muscle spasm was due to some irritation of these muscles.
******
“A. I have not observed his footdrop to show any improvement whatsoever since I first noted it.
******
“A. The irritation which is apparently causing the neuropathy in his left leg would have to be alleviated and then exercises could re-develop the leg.”

The evidence of Dr. Collis although rambling and somewhat indecisive supports Dr. Cheatham. Dr. Collis was asked and answered as follows:

“Q. Doctor, on your previous deposition there was some doubt in your mind as just precisely what was the cause of these symptoms. You seem to think there was a possibility of nerve root irritation and some possibility of a ruptured disc in the back. Would your examination during this past three weeks lead you to any firm conclusion as at what would be causing these symptoms?
“A. Well, at first I think still, his nerve root irritation, I don’t know for sure, I would think that this is on the outside of the vertebra instead of a ruptured disc. Of course I cannot be positive about it, but that is my opinion. I think my opinion was substantiated with having Dr. Marshall see him again, and he did not at that time recommend a myelogram.
“Q. Is this nerve root irritation sometimes referred to as a lesion?
“A. Yes, lesion, it’s some difficulty with the skeletal system, so I guess you call it lesion.”

We conclude that Dr. Marshall’s report was merely cumulative to appellee’s other evidence. Perhaps a layman would have arrived at the same conclusion as did Dr. Marshall’s report. Furthermore, appellant makes no argument that the verdict is excessive. The only evidence offered by appellant was the reading of the deposition of Dr. Earl W. Roles, an orthopedic surgeon, but who belongs to no medical society devoted to the practice of orthopedic surgery. Dr. Roles saw appellee only once, on February 28, 1966. He took x-rays and found no disability from the injury although he stated his x-ray disclosed “a united old fracture of the right transverse process of the third lumbar vertebrae” and “hyper-tropic arthritis of the fourth and fifth lumbar end of the lumbosacral joint,” which was substantially the findings of Dr. Marshall whose report by Dr. Collis we have heretofore discussed.

Appellant’s final argument relates to improper argument by counsel for appellee and the trial court’s exclusion of evidence pertaining to the settlement of Horton’s case against Moody.

Here is what occurred in regard to appellant’s contention that “counsel for ap-pellee told the jury that Judge Bertram had told them Horton had made a case.”

Argument of William A. Miller, attorney for appellee:

“This case, the defense here is — you haven’t proved your case, as Judge Bertram says you have—
“Henry Triplett: Objection.
“Judge Bertram: I am going to sustain the objection. This is not a proper argument. The jury is not to consider that. (Mr. Miller continuing.) The instructions tells you that Scudamore was negligent, which was the cause of this accident.”

It is concluded the admonition of the trial judge sufficiently counteracted any adverse effect the remarks of Mr. Miller may have had on the jury.

The remaining contention that the trial court erred in excluding evidence showing the amount of settlement between Horton and Moody is entirely without merit.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Florence NELSON, Appellant, v. MIDWEST MORTGAGE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Robert E. Webb, Joe A. Wallace, Wallace & Webb, Louisville, for appellant.
    David J. Thompson, Jr., A. J. Deindoer-fer, Boehl, Stopher, Graves & Deindoer-fer, Louisville, for appellee.
   EDWARD P. HILL, Judge.

This appeal is from a judgment entered upon a directed verdict for defendant-ap-pellee in plaintiff-appellant’s action to recover damages for injuries sustained in a fall at appellee’s bowling alley.

Appellant contends her fall was caused by a small quantity of water on the floor and that appellee was negligent in not keeping the premises free of such liquid. Ap-pellee counters with the argument that it exercised such care as was required of it and that the evidence was speculative as to how and when the liquid got on the floor.

On the night of April 30, 1965, appellant and four other people, composing her league team, commenced bowling about 8:30 p.m., after awaiting the departure of the team that bowled immediately previous thereto. Appellant was bowling her thirtieth frame, having bowled twenty-nine previous frames, when she slipped and fell fracturing the patella (the kneecap). She customarily used what is known as a “sliding delivery” when bowling, and apparently., a small quantity of liquid on the shoe soles caused her slide to get out of control and cause her fall.

Appellee sold soft drinks and beer to its customers, and the circular benches used by the players awaiting their turn to bowl were equipped with holders for their drinks.

Appellant charges that appellee failed to cause the floors to be inspected and cleaned immediately before appellant’s team commenced bowling. Appellee admits it did not have its janitor inspect and clean the area involved after the bowling by the group that bowled immediately before appellant’s team started.

We examined the evidence relative to the quantity and the location of the “liquid” thought of by appellant as the culprit of the tragedy. Mrs. Láveme Hazelip stated she saw a spot of water about the size of her “thumbnail” on the step leading from the circular bench to the bowling lane. Mr. Gionet and Mr. Blankenship saw “water” under the bench where appellant was sitting. Mr. Gionet said there was water in an area about “eighteen inches square,” perhaps one-half cup. Mr. Blankenship said he saw water “underneath the bench where the bowlqrs sit,” which covered an area “a foot long” and “maybe six inches across.”

The record is silent as to how or when the liquid got on the floor. Some of the members of appellant’s . team could have spilled it or it could have been the fault of the previous group. We are left entirely to speculation as to who spilled it and as to when it was spilled.

Undoubtedly one conducting such a business as bowling is required to exercise such care as is commensurate with the dangers involved. Bowling is an athletic activity demanding alleys clear of liquid and other debris. The proprietor must exercise ordinary care in maintaining the premises in a reasonably safe condition. See Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47; Donoho v. O’Connells Inc., 13 Ill.2d 113, 148 N.E.2d 434; and Burns v. Goldammer, 38 Ill.App.2d 83, 186 N.E.2d 97.

In Burns, supra, the Illinois court said:

“ ‘[Liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if it was placed there by the negligence of the proprietor or his servants; or, if there is no showing how the substance got on the premises, if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered.’ ”

There is an absence of any evidence that appellee or its servants spilled the liquid. Neither is there evidence that they knew of the presence of liquid or that it was on the floor a sufficient length of time that in the exercise of ordinary care its presence should have been discovered by appellee.

While we think the “ordinary care” of approaches to bowling lanes demands more frequent inspection and cleaning than of common passageways in retail stores, we do not find any evidence of neglect on the part of appellee or its employees to inspect and keep the premises clean. After all, there must be some duty imposed upon the participants themselves not to litter the premises with liquid or any other material that may cause a fall.

There was some evidence offered by appellant that “there were cigarette stubs about the place,” but the cause of appellant’s fall was not cigarette stubs. This evidence was competent on the question of knowledge on the part of appellee of conditions, but we do not consider its exclusion to have been sufficiently convincing on the question of notice to justify the conclusion it was prejudicial. With this evidence admitted, we would be of the same opinion that appellant did not prove sufficient facts to require submission to the jury-

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Lloyd DYE et ux., Petitioner, v. WESTERN FIRE AND INDEMNITY COMPANY, Respondent.
    No. B-693.
    Supreme Court of Texas.
    March 6, 1968.
    Rehearing Denied May 1, 1968.
    Splawn & Maner, Don Reed, Lubbock, for petitioner.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for respondent.
   PER CURIAM.

The court of civil appeals reversed the judgment of the trial court and remanded the cause for retrial on the sole ground that the jury finding on the issue of the workman’s wage rate was contrary to the overwhelming weight of the evidence. The intermediate court refused the workman’s tendered remittitur of the full amount of that part of the finding which was questioned. 423 S.W.2d 143.

The jury found that Naomi Dye’s weekly wage rate was $56.82 and the trial court rendered judgment for total and permanent disability computed upon that rate. The intermediate court held that the finding included the sum of $9.74 as earnings for extra work and other allowances, and that the finding as to the additional sum was against the overwhelming weight of the evidence. The workman tendered a remit-titur which would have subtracted the full sum of $9.74 from the finding on the wage rate issue and moved the court to render judgment upon the basis of a weekly wage rate of $47.08. A judgment upon that wage rate would have excluded all of the questioned part of the weekly wages. The court refused to grant the remittitur.

The judgment of the court of civil appeals in this case conflicts with several opinions of this court. See, Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956) ; Dallas Railway & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Texas Employers’ Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942). By authority of Rule 483, Tex.Rules Civ.Proc., the judgment of the court of civil appeals is reversed on the application for writ of error, and the cause is remanded to that court for compliance with Rule 440.


author: WALKER, Justice.

text:
    LIBERTY SIGN COMPANY et al., Petitioners, v. Lee E. NEWSOM, Respondent.
    No. B-390.
    Supreme Court of Texas.
    March 13, 1968.
    Rehearing Denied May 1, 1968.

      Malone, Seay, Gwinn & Crawford, George Seay and Durwood Crawford, Akin, Gump, Strauss, Hauer & Feld, Dallas, for petitioners.
    Grady, Johnson, Smith & Blakeley, Robert C. Johnson, Dallas, for respondent.
   WALKER, Justice.

This suit was brought by Liberty Sign Company to recover accrued rent, liquidated damages and attorney’s fees alleged to be owing under its advertising display sign rental contract with Lee E. Newsom. The Court of Civil Appeals held that Liberty is not entitled to liquidated damages because: (1) Liberty had breached the lease contract by failing to replace the signs after they were removed by New-som’s assignee; and (2) Liberty, by demanding and accepting payment of accrued rent, had lost its alternative right to terminate the lease and claim liquidated damages. We do not agree with either of these conclusions.

There is no dispute as to any of the basic facts. In September, 1964, Newsom opened a restaurant known as Ginny Lee’s Pancake House in Preston Royal Plaza, a shopping center in Dallas. The interior portion of the building occupied by the restaurant was held by Newsom under lease. The exterior of the building as well as the adjoining parking area was controlled by one Padgett, who owned the shopping center.

On August 14, 1964, Liberty and Newsom executed a written contract under the terms of which Liberty agreed to furnish, install and maintain an advertising display sign on the parking lot of the shopping center for a period of five years and as long thereafter as the parties might elect. New-som paid Liberty $827.22 when the contract was signed and agreed to pay an additional $153.35 plus tax per month “payable in advance for 60 consecutive months, commencing on the day Lessor’s installation of display is completed.”

On September 16, 1964, the contract was amended by a written rider in which Liberty agreed to furnish, install and maintain an additional canopy sign on the roof of the building. Newsom agreed to and did pay an additional initial rental of $357.00, and the monthly rental payment was increased from $153.35 to $191.85 plus tax. Liberty furnished and installed the two signs, making its own arrangements with Pad-gett and obtaining his consent.

The installation was completed the latter part of September, and Newsom paid the installments of rent due October 1 and November 1. He was over a month late in making the December 1 payment, and defaulted in the installments due January 1, February 1 and March 1, 1965. Liberty was satisfied with his credit, however, and did not immediately elect to terminate the lease.

In February, 1965, Newsom sold the restaurant, including his interest in the signs, to the 2538 Corporation, hereinafter referred to as the corporation, which was wholly owned by J. H. Stecker. The written contract of sale obligated the corporation to assume the rental payments to Liberty, and the corporation further agreed not to remove or damage any of the property without the consent of both Newsom and the owner. It was also provided that New-som would have the right to take possession of all properties, rights and interests covered by the contract if the corporation defaulted in the performance of any of its undertakings. Stecker guaranteed performance of the contract by the corporation, hut Liberty did not consent to the assignment.

Stecker changed the restaurant into a steak house, redecorated the premises and began business about February 16, 1965. He considered the signs unsuitable for his new operation and requested Liberty to make certain alterations. They were unable to agree on the cost, and Stecker wrote Liberty demanding that the signs be removed by March 15th. He advised that if Liberty failed to do so he would have the signs removed and delivered to Liberty’s warehouse.

This threat was discussed by the attorneys for Liberty and Newsom. Both Liberty and Newsom objected to the removal of the signs, and each insisted that the other was obligated to protect the signs and should obtain an injunction against Stecker. Neither took legal action of any kind, but Newsom’s attorneys advised Stecker on several occasions that Newsom objected to the removal of the signs. Liberty informed Newsom that it would declare the lease terminated and the liquidated damages due if the signs came down.

On March 21, 1965, Stecker had the signs removed by Lawrence Schell, the owner of Dallas Neon Sign Company, who delivered them • to Liberty. Oliver, who was a vice-president of Liberty, and New-som went to the shopping center while the signs were being taken down. Newsom remained across the street. Oliver took some pictures and then informed one of the workmen that he was employed by Liberty and that the signs belonged to Liberty.

Four days later the attorneys for Liberty wrote Newsom that “since the signs have been removed and Liberty has not received the payments due on the signs for the past three months, it has no alternative but to declare the contract in default and the entire amount due as set forth therein.” The letter included a demand for the payment of the following amounts claimed to be owing under the contract:

Accrued and unpaid rent $575.55
77% of unaccrued rent 7,977.12
2% sales tax 171.05
Total $8,723.72

When the claim was not paid, Liberty instituted the present suit against Newsom, Stecker and the corporation. Newsom prayed for judgment over against the corporation and Stecker, and also filed a third party action against Schell. During the trial Newsom paid the $575.55 accrued rent into the registry of the court. At the conclusion of the evidence, the trial court withdrew the case from the jury and rendered judgment in favor of Liberty and against Newsom, Stecker and the corporation, jointly and severally, for the amount claimed plus $2,750.00 attorney’s fees. The $575.55 paid by Newsom into the registry of the court was credited on the judgment and withdrawn by Liberty. Newsom was given judgment over against Stecker and the corporation, and a take nothing judgment was rendered in favor of Schell. Only Newsom appealed.

The Court of Civil Appeals concluded, for the reasons mentioned above, that Liberty may not recover liquidated damages and is entitled to only the $575.55 accrued rent paid by Newsom into court plus reasonable attorney’s fees. The judgment of the trial court in favor of Schell was accordingly affirmed, but as to the remainder of the case such judgment was reversed and the cause was remanded for a redetermination of the attorney’s fees. 416 S.W.2d 442. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The relevant provisions of the lease contract are as follows:

“1. Lessor shall, to Lessee’s special order and specifically for Lessee’s use, construct, install and, during the term of this Agreement, maintain for and lease to Lessee an advertising display (s) described in the specifications * * *.
* * * * * *
“5. In the event Display is destroyed or substantially damaged from any cause except deliberate act of Lessee or his agents, Lessor will, upon notification of such damage by Lessee, rebuild Display to conform to its original specifications * * *⅜
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“DISPLAY RENTAL TERMS AND CONDITIONS
“A. Lessor shall use' due diligence in furnishing, installing and maintaining Display, but the performance of Lessor under this Agreement shall be subject to any delay resulting from strikes, breakage, fire, labor disputes, unforseen commercial delays, war, act of God, or other causes beyond control of Lessor.
“B.. Lessor, at its expense, shall maintain Display in good condition and appearance. If Display fails to operate for any reason except through fault of Lessee’s agents or employees, Lessor shall, upon notice in writing by Lessee, repair Display within forty-eight hours of receipt of such notice * * *.
“D. If Lessee shall default in payment of the rental herein provided for, Lessor may, at its option and without demand or notice, terminate this Agreement and remove the display at Lessee’s expense. In such event, the unpaid rent for the unexpired portion or period of this Agreement shall become immediately due and payable. Lessee agrees to pay Lessor all such rents and any other amounts due Lessor, less 24% of un-accrued rentals, which amount Lessee agrees constitutes the actual liquidated damages Lessor shall sustain by reason of Lessee’s default hereunder and that same is not a penalty. Lessee further agrees to pay Lessor the reasonable cost, including, but not limited to, attorney’s fees incurred by Lessor in collecting any monies that shall accrue under the terms of this Agreement.
* * * * * *
“E3. Display, for all purposes, shall be deemed personal property, and shall not, by reason of attachment to realty be deemed a fixture or appurtenance thereto, and shall remain severable therefrom and the sole property of Lessor. Without prior written consent of Lessor, Lessee shall not, at any time or at any location, permit Display to be repaired, replace, altered or other work to be done on Display by anyone other than Lessor or Lessors’ agent.
******
“E5. This Agreement is binding upon and inures to the benefit of the successors and assigns of the parties hereto, but the interest of Lessee shall not be transferable through operation of law or otherwise without prior written consent of Lessor * *

Newsom contends and the Court of Civil Appeals held that Liberty was obligated by the provisions of Paragraph 5 to replace the signs after they were removed by Stecker on March 21. We do not agree. Although Stecker was not the agent of Newsom, he was the sole owner of and acting for the corporation. Newsom had sold his interest in the signs to the corporation, and the latter had assumed payment of the rent to Liberty. Under the provisions of Paragraph 5, Liberty was not obligated to restore the signs if they were damaged by the deliberate act of “Lessee or his agents.” Paragraph E3 provides that without prior written consent of Liberty, “Lessee” shall not permit the signs to be replaced or altered by anyone other than Liberty or its agents. The parties further agreed in Paragraph ES that the lease would be binding upon their successors and assigns, but that Newsom’s interest was not transferable without the written consent of Liberty.

If Liberty had consented to the sale of Newsom’s interest, removal of the signs by the corporation would clearly be an act of the lessee within the meaning of Paragraph 5. See Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775. We are satisfied that the parties did not intend for Liberty to be under any greater duty if the signs were damaged or destroyed by one to whom Newsom had assigned without Liberty’s consent. In our opinion the term “Lessee” as used in Paragraph 5 includes Newsom and anyone holding through and under him. The restriction on his right to assign was for Liberty’s benefit, and could be waived by Liberty at any time. The assignment made in violation thereof was not void. We hold, therefore, that Liberty was under no duty to replace the signs and did not breach its contract by failing to do so. This does not mean that every reference to the lessee in a lease of real or personal property necessarily includes an assignee of the original lessee. That depends upon the nature of the provision, the purpose of its inclusion in the lease, and the circumstances under which the contract was made. See In re Clerc Chemical Corp., 3rd Cir., 142 F.2d 672.

Turning now to the question of election, Paragraph D of the lease gives Liberty the right to terminate the agreement at its option in the event of default in the payment of rent. It further provides that upon such termination the unpaid rent for the unexpired portion of the lease shall become immediately due and payable, and that lessee shall pay all such rents and other amounts due lessor, less 24% of unaccrued rentals, as liquidated damages. The rent for January, February and March had accrued and was unpaid when Liberty elected to terminate the lease. It was then entitled under the provisions of Paragraph D to the rent for these three months plus 76% of unaccrued rents. The demand, suit for and acceptance of the $575.55 accrued rent was not inconsistent with and does not preclude Liberty’s asserting its right to 76% of the unaccrued rents as liquidated damages.

There is another problem which was not reached by the Court of Civil Appeals. A printed iorm was used for the original contract dated August 14, 1964, and the figure “24%” was written by a typewriter in a blank left in the liquidated damages provision. A printed form was also used for the rider dated September 16, 1964. The latter contained a number of blanks which were completed by typewriter before the rider was signed. As executed by the parties, the rider reads as follows, with the typewritten portions shown in italics:

“ * * * this rider shall become part of the Rental agreement above designated and previously entered into between the parties to this rider on the 14th day of August, 1964. The original terms and conditions of the aforesaid contract shall remain in full force and effect, except as this rider shall change or alter them as follows:
“Change in rates, if any (strike out if none):
“Monthly rate will be $191.85
“Monthly continuance rate will be $71.75
“Monthly rate in default clause will be $ 23%
“Other--
“This rider shall become effective September 16, 1964.”

Newsom contends that the effect of the rider was to provide that the liquidated damages would be 23% of the unaccrued rents. In the alternative he says the provision is so ambiguous as to render the entire default provision void. The right to terminate upon default in the payment of rent is plainly granted, and when the rider is considered in the light of the circumstances under which it was executed we think the effect of its provisions is equally clear. The printed form used for the rider was prepared to enable the parties to make changes in the figures inserted in blanks in the original contract. The language of the rider is not entirely appropriate, because no monthly rate is stated in the default clause of the original contract. There is, however, only one blank in such clause and this blank was completed by inserting the percentage by which the unaccrued rents were to be reduced in computing liquidated damages. We think it is clear that the parties intended by the rider to change that figure from 24% to 23%.

In Paragraph VII of its first amended original petition Liberty alleged that it had employed attorneys and agreed to pay them a reasonable fee in the amount of $1,500.00. The prayer was for the recovery of $8,723.72 with interest thereon from March 25, 1965, together with attorney’s fees in the amount of $1,500.00, and for general relief. By trial amendment Paragraph VII of the petition was changed to allege that Liberty had employed attorneys and agreed to pay them reasonable fees for the preparation and trial of the case and for handling the cause on appeal. The amount of a reasonable fee was not alleged, and the prayer was not amended. In the course of the trial it was stipulated that a reasonable fee for the services rendered by Liberty’s attorneys should be $1,750.00 through the trial court, an additional $500.00 in the event the cause was appealed to the Court of Civil Appeals, and an additional $500.00 if the cause was appealed to the Supreme Court of Texas.

The $1,500.00 figure stated in the prayer would ordinarily constitute a ceiling on the amount that could properly be awarded as attorney’s fees. See Williams v. Wyrick, Tex.Civ.App., 242 S.W.2d 669 (affirmed, 151 Tex. 40, 245 S.W.2d 961). In view of the trial amendment and the stipulation of the parties in the present case, however, both parties as well as the trial court must have understood that Liberty was seeking and would be entitled up to $2,750.00 attorney’s fees if its claim was established. We think that in these circumstances attorney’s fees in the amounts stipulated were properly awarded under the prayer for general relief. There is no contention that the trial court could not make part of such award contingent upon an appeal. See Cooksey v. Jordan, 104 Tex. 618, 143 S.W. 141; Preferred Life Ins. Co. v. Dorsey, Tex.Civ.App., 281 S.W.2d 368 (wr. ref. n. r. e.).

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author: CALVERT, Chief Justice. GRIFFIN, Justice.

text:
    HARDWARE DEALERS’ MUTUAL FIRE INSURANCE COMPANY, Petitioner, v. Agnes L. KING, Respondent.
    No. B-24.
    Supreme Court of Texas.
    March 20, 1968.

      Akin, Vial, Hamilton, Koch & Tubb, James A. Knox, Arthur M. Albin, Dallas, for petitioner.
    Gordon Wellborn and Rex Houston, Vaughan O. Stewart, Henderson, for respondent.
   CALVERT, Chief Justice.

The motion for rehearing filed herein by respondent is granted; the judgment entered on November 29, 1967, is set aside; the opinions filed on that date are withdrawn, and the opinion and judgment set out below are substituted.

This is a workman’s compensation case. The case was tried to a jury and judgment was rendered upon the jury’s verdict awarding the respondent-employee, Agnes King, a recovery of compensation benefits. The court of civil appeals affirmed. 408 S.W.2d 790. We reverse the judgments of the courts below and remand the cause to the trial court for retrial.

By way of special defense to Mrs. King’s suit, Hardware Dealers Mutual Fire Insurance Company, the insurance carrier, pleaded that Mrs. King was not an employee of Musser Motors, Inc., its assured, at the time and on the occasion of her injury, but was a domestic servant of an officer of the corporation. Domestic servants are excluded from coverage afforded by our Workmen’s Compensation Act. Article 8306, Section 2, Vernon’s Ann.Tex. Civ. Stats.

The case was submitted to the jury on special issues. In answer to Special Issues Nos. 1 and 2, the jury found that Mrs. King sustained an accidental injury on May 6, 1964. Special Issue No. 2-A inquired, “Do you find from a preponderance of the evidence that Agnes King was not hired or retained by Musser Motors, Inc. as a domestic servant?” To this issue, the jury answered, “She was not hired or retained by Musser Motors [as a domestic servant].” In answer to Special Issue No. 2-B, the jury found that on the date of her injury Mrs. King was an employee of Musser Motors, Inc. Special Issue No. 2-C inquired, “Do you find from a preponderance of the evidence that such injury, if any, was sustained in the course of her employment with Musser Motors, Inc.?” In connection with this issue the court instructed the jury as follows: “‘Injury sustained in the course of employment,’ as used in this charge is meant all injuries of every kind and character, having to do with or originating from the work, business, trade, or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.” The jury answered this issue, “Yes.”

Hardware has presented only one point of error on appeal as a basis for its contention that the judgment of the trial court should be reversed and judgment should be rendered that the plaintiff take nothing. The point of error as stated in Hardware’s brief in the court of civil appeals is as follows: “The error of the Court in entering judgment for the Appellee and overruling Appellants’ amended motion for a new trial because there was no evidence to support the jury’s finding that the Appellee was not hired or retained as a domestic servant.” We treat this point of error as stating that the trial court erred in entering judgment for Mrs. King because the evidence establishes conclusively that she was hired or retained by Musser Motors as a domestic servant. As thus restated, the question presented is whether the trial court erred in entering judgment for Mrs. King if the evidence shows conclusively that Mrs. King was hired or retained by Musser Motors as a domestic servant. We hold that it did not.

Examination of the trial court’s charge as a whole clearly indicates that it was tried on the theory that the terms of Mrs. King’s contract of employment with Musser Motors was determinative of her right to compensation benefits; that if Mrs. King was “hired or retained” as a domestic servant, she was not entitled to compensation benefits, but that she was entitled to benefits if she was “hired or retained” as an employee of the business establishment. Special Issue No. 2-A speaks only to- Mrs. King’s contract of employment; it does not speak to the particular type of work in which she was engaged at the time of her injury.

The evidence shows that Mrs. King was employed by Musser Motors some eight or ten years prior to the trial of this case. The evidence in the record, which we need not detail, establishes conclusively that Mrs. King was “hired or retained” by Musser Motors in two- capacities, as a domestic servant in the homes of officers of the company and as a janitress at the company’s place of business. If we substitute for the jury’s answer to Special Issue No. 2-A the answer which we have found is conclusively established by the evidence as the correct answer to the issue, that is, that Mrs. King was employed as a domestic servant and as a janitress, we yet cannot say that the answer is a sound reason for holding that the trial court erred in rendering judgment for Mrs. King. The reason we cannot do so is because the answer does not establish that she was injured while performing work in her employment as a domestic servant.

A person’s contract of employment may provide for services in two capacities or enterprises, in one of which he is covered by the Compensation Act and in the other of which he is not covered. Tex. Emp. Ins. Ass’n. v. Derrick, 207 S.W.2d 199 (Tex.Civ.App.1947, writ ref’d n. r. e.). If injured while performing work or services in a capacity or an enterprise covered by the Act, he may recover benefits; but if injured while performing work or services in a capacity or an enterprise excluded from coverage, he may not recover. Denny v. Dept. of Labor & Industries, etc., 172 Wash. 631, 21 P.2d 275, at 278 (1933); Maeda v. Dept. of Labor & Industries, 192 Wash. 87, 72 P.2d 1034, at 1035 (1937). See also 172 A.L.R. 382.

Hardware argues in this court, as it did in the court of civil appeals, that the evidence establishes conclusively that Mrs. King’s injury was sustained while she was performing services in her capacity as a domestic servant. The impediment to consideration of this argument is that Hardware has no- point of error to which it is reasonably related or referable. It presented a motion for instructed verdict in the trial court at the close of all the evidence on the ground that “the evidence of record conclusively establishes that at the time of the injury * * * the plaintiff herein was a domestic servant. * * * ” The trial court overruled the motion. The action of the trial court in overruling the motion was assigned as error in the motion for new trial, but at no stage of the appeal has Hardware complained that the trial court erred in overruling the motion. If it had done so, we would have an entirely different question presented for our consideration. Not having complained of this action of the trial court, the error, if any, in overruling the motion has been waived. Moreover, as is pointed out above, the court submitted Special Issue No. 2-C inquiring, in effect, if Mrs. King’s injuries originated in “the work, business, trade or profession” of Musser Motors, Inc., and Hardware did not object to its submission on the ground that there was no evidence of probative force to support its submission. Neither has Hardware presented a point of error at any stage of the appeal asserting that the jury’s affirmative answer to Issue No. 2-C is not supported by evidence. Again, if it had done so-, we would have a different question for consideration. In short, even under our liberal rules for interpreting points of error in the light of arguments made under them, we do not feel justified in transposing a complaint directed at the jury’s answer to one special issue into a complaint directed at action of the trial court in overruling a motion for instructed verdict or in the submission of another special issue, or at the jury’s answer to- such other issue. This court could not render a take-nothing judgment against Mrs. King without setting aside the jury’s answer to Special Issue No. 2-C, an answer which has not been attacked by Hardware.

The only other action of the trial court which is complained of in this court as error is its refusal to submit Hardware’s requested special issue with its accompanying instruction, which reads as follows:

“Do you find from a preponderance of the evidence, that at the time and on the occasion in question, the plaintiff, Agnes L. King, was not a domestic servant?
“Answer: ‘She was not a domestic servant,’ or ‘She was a domestic servant.’
“We, the Jury answer:_
“Domestic Servant as used in this charge means a person who primarily is employed in and about the maintenance of a home itself. Such a person is a household servant working within the house for the upkeep thereof, and the care, comfort and convenience of the occupants thereof.”

We sustain this point of error. The requested special issue does not speak to the contract of employment. It speaks to the status of Mrs. King “at the time and on the occasion” of her injury. Since the evidence establishes conclusively that Mrs. King was employed in two- capacities, the crucial question in the case is, as pointed out above, whether she was injured while performing services in her capacity as a domestic servant. Perhaps the requested issue could have been better worded to frame the crucial inquiry, but in our opinion it meets the requirements laid down by Rule 279, Texas Rules of Civil Procedure, for reversal in that it is “in substantially correct wording.” Moreover, in our opinion refusal to submit the issue probably resulted in an improper judgment, and thus requires reversal of the trial court’s judgment. Rule 503, Texas Rules of Civil Procedure. Hardware was entitled to have this issue submitted in clear and unambiguous language. It was obviously not so submitted in Special Issue No. 2-C.

If the evidence on a retrial of the case is the same with reference to the contract of employment, no special issue should be submitted with respect thereto since we have held that the evidence establishes conclusively that Mrs. King was employed as a janitress in Musser Motors’ place of business and as a domestic servant in the homes of officers of the company. If the evidence is sufficient to take the issue to the jury, a proper special issue should be submitted inquiring whether Mrs. King was injured while performing services as a domestic servant.

The judgments of the court of civil appeals and the trial court are reversed and the cause is remanded to the trial court.

DISSENTING OPINION

GRIFFIN, Justice.

I cannot agree that this cause should be reversed and remanded because “Hardware has no point of error” reasonably related or referable to Hardware’s argument in the Court of Civil Appeals and in this Court “that the evidence establishes conclusively that Mrs. King’s injury was sustained while she was performing services in her capacity as a domestic servant.”

In Hardware’s brief in the Court of Civil Appeals, Point No. One was:

“1) The error of the Court in entering judgment for the appellee and overruling appellant’s amended motion for new trial because there was no evidence to support the jury’s finding that the ap-pellee was not hired or retained as a domestic servant.” (Germane to assignment of error number 1.)

Under the heading “ARGUMENT” Hardware sets out the evidence in the trial court and says: “The question presented to this Court is whether at the time of her injury, - appellee was a domestic servant.” Again, in the argument Hardware says: “It is appellant’s position that even under this test [for a no evidence point] the appellee’s testimony shows that at the time of her injury, and for a long time prior thereto, appellee was required to perform the duties of a domestic servant.” Again: “Thus the evidence uncon-trovertibly established that she was hired to do and regularly did duties of a domestic nature, and thus as a matter of law was at the time of her injury a domestic servant, and the jury’s finding has no support in the evidence.” Again: “It is submitted, however, * * * nonetheless, her testimony established that at the time of her injury she was performing the duties of a domestic servant, for which duties she had been expressly hired, and which she did regularly, and this was as a domestic servant * * * as a matter of law.” Again: “It is submitted that her work at the time of her injury is controlling under Texas law; and at the crucial time she was a domestic servant as a matter of law.”

In its motion for rehearing in the Court of Civil Appeals, Hardware had set out verbatim its point of error quoted from its brief, and under this point says: “It is respectfully urged that as a matter or law, that at the time of her injury, the appellee was performing duties of a domestic nature and was a domestic servant” and excluded from recovery under the Workmen’s Compensation Law.

In its application for writ of error filed in this Court, Hardware as its Second Point of Error copies verbatim its Point (1) in the Court of Civil Appeals above set out and makes the same argument as I have quoted from its brief in the Court of Civil Appeals.

With Hardware’s brief and argument in the Court of Civil Appeals and in its application for writ of error in this Court, I cannot say Hardware has not raised the point that at the time of her injury the evidence in this case shows as a matter of law that Mrs. King was working as a domestic servant. The majority states that the evidence in this casé establishes conclusively that Mrs. King was hired or retained by Musser Motors in two capacities, (1) as a domestic servant in the homes of the officers of the company and (2) as a janitress at the company’s place of business. If (1) is by this record “established conclusively,” then the jury’s answer that Mrs. King was not hired or retained as a domestic servant must of necessity have no support in the evidence. The evidence conclusively established that at the time of her injury Mrs. King was not working as a janitress at the Motor Company’s place of business. Therefore, she was not injured while working in the industrial part of her employment contract, but in the domestic servant phase of her employment.

Not working in the industrial part of her employment at the time of her injury, she was working in the usual course of her employment under her contract of employment with Musser Motors, and the jury answer to issue 2-C was and is correct. She was injured under her contract of employment with Musser Motors to do work as a housemaid. Plaintiff contends that the answer of the jury to this issue 2-C must be set aside in order to prevent a recovery by her. The vice in this contention is that being employed by Musser Motors in two capacities, she was engaged in the usual course of her employment by Musser Motors when she was working in either capacity. The jury’s answer to 2-C does not specify in which capacity she was working at the home of Mr. Musser. She cannot recover as a housemaid; therefore, the jury’s answer decides no issue material to this case. As a housemaid or domestic servant, she is not covered by the Compensation Act, although she was injured in the course of her employment with Musser Motors.

Not being injured under her employment as a janitress, she can only recover if she had been temporarily directed or instructed by Musser Motors to act as housemaid at Mr. Musser’s home at the time of her injury. Art. 8309, Sec. 1, Vernon’s Ann. Civ. Statutes; Oilmen’s Reciprocal Ass’n v. Gilleland (Tex.Com.App.1927), 291 S.W. 197; Texas Emp. Ins. Ass’n v. Wright, 128 Tex. 242, 97 S.W.2d 171 (1936). This record establishes conclusively that plaintiff worked regularly as a housemaid and not temporarily as such.

The majority opinion now agrees with the Court’s prior holding that the evidence establishes conclusively that Mrs. King was hired or retained as a domestic servant. To my mind, this settles the case so that the original disposition is the correct one. The Compensation Law very plainly and clearly excludes domestic servants from its coverage. No agreement of parties, no paying of compensation premiums can put one within the coverage who the Legislature has specifically directed shall not be covered.

The cases by this Court are legion wherein it is recognized that no technical wording or form will be required for this Court to consider an error complained of by argument and citation of authorities. In Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228, 230 (1956), quoting from Lang v. Harwood (Tex.Civ.App.1940), 145 S.W.2d 945, the court said:

“ * * * It has long been the policy of this court to apply the most liberal construction in favor of the sufficiency of the brief and to give effect thereto, if it is possible for us to ascertain either from the assignment, proposition or statement and argument the point intended to be presented thereby. * * *”

In McKelvy v. Barber, Tex.Sup., 381 S.W.2d 59 (1964), this Court recognized and discussed a contention and reversed and remanded the cause to the trial court when no point complaining of the error upon which remand was ordered was before the Court of Civil Appeals. This Court then said that since all parties had briefed this question in the Court of Civil Appeals and the Court of Civil Appeals had decided it, “ * * * we think it should be treated as having been properly presented at the intermediate court level even though not raised by a formal point of error in the appellant’s brief.”

In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), this Court said:

“ * * * If a ‘point’ is sufficient to direct the Court’s attention to the matter complained of, the Court will look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the ‘point’ in the light of the statement and argument thereunder.”

In her answer to the application for writ of error respondent sets out all of the evidence shown in the record which will sustain the jury’s answer to special issue No. 1 that Agnes King was not hired or retained by Musser Motors as a domestic servant. Under her argument and authorities following this statement, respondent says: “The law of this State is that the nature of the business in which the employee is hired to work and not the duties he regularly performs are the controlling tests and not the specific activity he is engaged in at the time of his injury.” Respondent cites Hill v. Georgia Casualty Co. (Comm. of App. 1932), 45 S.W.2d 566; Commercial Cas. Ins. Co. v. Strawn (Tex.Civ.App.1932), 44 S.W.2d 805, writ refused; Tex. Emp. Ins. Ass’n v. Weber (Tex.Civ.App.1965), 386 S.W.2d 835, writ refused, n. r. e.; Fidelity Union Cas. Co. v. Carey (Comm. of App. 1932), 55 S.W.2d 795.

The parties to this litigation in the trial court and on appeal joined issue on the question of whether or not Agnes King was hired and retained by Musser Motors as a domestic servant, and was injured while working in such capacity. The parties pitched their case on this issue. The majority recognizes that she was so hired and retained as a domestic servant, even though she was also hired and retained as a jani-tress at the office of Musser Motors.

In the last paragraph of the majority opinion it is stated that on a retrial of the case, if the evidence is the same with reference to the contract of employment, no issue should be submitted “since we have held the evidence establishes conclusively that Mrs. King was employed as a janitress in Musser Motor’s place of business and as a domestic servant in the homes of officers of the company.” Then the opinion says if the evidence on retrial raises an issue as to whether or not Mrs. King was injured while performing services as a domestic servant, such issue should be submitted. In my reading of the facts of this cause, the evidence conclusively establishes that Mrs. King was injured while working at the home of Mr. Musser. She had been working as a domestic servant at the home on the day of her injury since about 7:30 or 8:00 a. m. This fact is testified to by Mrs. King, as well as Mr. and Mrs. Musser. She suffered her injury at about 1:30 p. m. on this very day. Her work at the home of Mr. and Mrs. Musser was not of a temporary nature, but was a part of her regular job as an employee of Musser Motor Company. She was injured in this capacity, and the Compensation Law excludes her from its coverage.

The evidence, including her own, establishes conclusively that she was not covered by the Act, in that she was a domestic servant. Being a domestic servant, the Legislature has excluded her from the benefits of the Act, and no court can put her within such coverage.

I would reverse and render the case as a majority of the Court did when it handed down its original opinion on November 29, 1967.

WALKER and POPE, JJ., join in this dissent.

      . Emphasis ours throughout unless otherwise indicated.

      . All emphasis supplied by the writer.


author: DICE, Judge.

text:
    Alfred Ralph STEVENS, Appellant, v. The STATE of Texas, Appellee.
    No. 41173.
    Court of Criminal Appeals of Texas.
    April 3, 1968.
    Will Gray, Houston, (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., Joseph W. Doucette and Allen McAshan, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for forgery; the punishment, three years.

Trial was before the court, a jury being waived, upon appellant’s plea of not guilty.

Three grounds of error are urged by appellant in his brief filed in the trial court.

The first two grounds challenge the sufficiency of the evidence to support the conviction.

The evidence will be briefly summarized.

The witness Norval Walton testified that he was employed by Wagner Hardware, in Palm Center, Harris County. On April 14, 1964, appellant came into the store and purchased a lawn mower for approximately $91.75. In payment therefor appellant gave a check for $100, which he filled out and signed in the presence of the witness. The check was drawn on the Bank of the Southwest and signed “Allen J. Schifani, Jr.” At such time, appellant identified himself by both social security and check identification cards under the name of “Allen J. Schifani, Jr.”

In the transaction, appellant received approximately $9 in change. The mower was to be delivered to a certain address given by appellant. Some two days later, the mower was back in the store.

Arthur J. Schifani, upon being called as a witness, testified that he had never before seen the check in question, that the signature thereon was not his, and that he did not have an account in the Bank of the Southwest. He further stated that he did not know anyone by the name of “Allen J. Schifani, Jr.,” and that he did not give the appellant or anyone else permission to sign his name to the check.

The witness’s wife, Mrs. Rhea Schifani, also testified that she did not know an “Allen J. Schifani, Jr.” in Houston and that she did not give anyone permission to write the name of Schifani on a check such as the one in question. She stated, “ * * we were the only family here [Houston]1 with that name,” and that a lawn mower was delivered by Wagner Hardware to her home in Houston and since neither she nor her husband purchased the mower she called the store.

Officer S. L. Smith testified that in his investigation of the alleged forgery of the check he was unable to locate anyone by the name of “Allen J. Schifani, Jr.” He further testified that the only persons he located by the name of “Schifani” were the witnesses at the trial.

Testifying in his own behalf, appellant denied having written the check in question and swore that he had never been in the hardware store.

It is the state’s contention that the name signed to the check was that of a fictitious person.

Under the decisions of this court, the signing of a fictitious name to an instrument with intent to defraud may constitute forgery. See: 3 Branch’s P.C. 732, 2d Edition, Sec. 1589, and cases there cited.

It is appellant’s contention that the evidence fails to show that the name signed to the check was fictitious because of the absence of any proof that “Allen J. Schifani, Jr.” did not have an account in the Bank of the Southwest and that the check was not paid. It is also argued that because there was no evidence that the lawn mower was delivered to the address given by the purchaser a reasonable hypothesis existed that, through mistake, it was delivered to the “wrong Schifani” and that Allen J. Schifani, Jr. stopped payment on the draft.

Norris v. State, 115 Tex.Cr.R. 57, 27 S.W.2d 246, is cited by appellant in support of his contention.

In that case, the court, in reversing the conviction, pointed out that the state did not attempt to prove that no person by the name signed to a check kept an account in the bank or that the check was ever seen by the bank — which, under certain authority, would be prima facie evidence he was a fictitious person, but, instead, the district attorney in his jury argument gave un-sworn testimony that he was a fictitious person — which was error.

In the instant case, the state did offer testimony of the witnesses which was sufficient to show that the name signed to the check was that of a fictitious person. The ground of error is overruled.

In his third ground of error, appellant insists that he was denied a fair trial because “the learned trial judge rejected without consideration the handwriting specimens introduced by both the State and the Appellant, and decided the issue of Appellant’s guilt or innocence solely upon Walton’s purported identification of the Appellant as the person who drew the draft in question.”

The record reflects that certain specimens of handwriting were introduced in evidence by the state and the appellant and after the evidence was closed the trial judge, in announcing his judgment of guilty in the case, stated:

“I am not a handwriting expert. I have examined this handwriting and, of course, handwriting may or may not be disguised. But the testimony of the witness, Mr. Walton, is convincing to the Court, beyond a reasonable doubt, that the defendant is guilty of the offense of forgery, as charged in the indictment.”

We perceive no error. While sitting without a jury, the court was authorized to accept or reject any or all of the testimony. Walker v. State, Tex.Cr.App., 395 S.W.2d 645. The ground of error is overruled.

The judgment is affirmed.


author: ONION, Judge.

text:
    Freeman Weldon SENSABAUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 41172.
    Court of Criminal Appeals of Texas.
    April 3, 1968.

      H. Edward Johnson, Fort Worth (Court appointed on appeal only), for appellant.
    Frank Coffey, Dist. Atty., Jack Neal and Roland H. Hill, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, life.

The sufficiency of the evidence is not challenged and we do not deem it necessary to set forth all the facts. The record does show that the deceased, Grover Cecil Steward, died from massive bleeding resulting from multiple stab wounds inflicted by the appellant in the front yard of the deceased’s house at approximately 3 p.m. on November 30, 1966. The State’s testimony reflects that approximately one week prior to the killing appellant, in presence of witnesses, displayed a knife, identified as the murder weapon, and threatened to kill the deceased with the same, and further stated he had a pistol if he was unsuccessful with a knife. Such threats were shown to have been communicated to the deceased. Other State’s testimony reflects that when the appellant entered the yard just prior to the killing the deceased told him to “stay out” and fired a shotgun into the ground approximately 30 degrees away from appellant’s position. Thereafter it appears that appellant with a knife in hand advanced on the deceased, a struggle ensued and the stab wounds resulted. Appellant’s claim of self-defense was rejected by the jury’s verdict.

In appellant’s first ground of error it is claimed that the improper cross-examination of appellant, permitted by the trial court over objection, resulted in the introduction of unsworn, improper and prejudicial testimony before the jury.

He contends that the prosecutor’s questions were framed and calculated to convey to the jury that (1) appellant had encountered the deceased on the morning of the day of the killing, (2) was then armed with a pistol and (3) made the deceased dance by shooting at his feet, (4) that appellant had that morning threatened to kill the deceased and (5) that the deceased was so scared he had his car packed ready to move at the time of the killing, (6) that the police had been looking for appellant all day, and (7) that appellant had threatened to kill his 13-year-old daughter and she had called the police.

“When the defendant in a criminal case voluntarily takes the stand and testifies in his own behalf he occupies the same position and is subject to the same rules as any other witness, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the same case, or his failure to testify on a former trial, or a confession made while he was in jail without his having been first cautioned that it might be used against him.” 61 Tex.Jur.2d, Witnesses, Sec. 36, p. 573.

With such rule in mind we return to the record. Appellant’s testimony shows that he had been to the deceased’s house twice on the morning of the killing to see Sal Stewart, who lived with the deceased and who later left the scene of the killing with the appellant, but who had died prior to trial. Such testimony does not show that on such occasions he encountered the deceased.

After denying on cross-examination that he had a gun at the time of the killing, a transcription of the court reporter’s notes reflects the following:

“Q. But you had it that morning, didn’t you, when you went out there to Cecil’s house, and told him ‘Dance, Boy, dance’, and you shot at his feet in the floor of that house out there, didn’t you ?
“A. I did not.
“Q. You had it that very morning, didn’t you?
“A. I did not.
“Q. And you pulled it out, and you told him ‘Dance’?
“A. I did not.
“MR. CRAIG: May it please the Court, there is no testimony of any kind to support a question of that sort.
“THE COURT: This is cross-examination. I will permit it. Overruled.
“MR. CRAIG: Not [Sic] my exception.”

It is observed that the question was asked and answered in the negative three times before any objection was interposed.

State’s witnesses had related that appellant had threatened to kill the deceased and that these threats had been communicated to the deceased.

Thereafter appellant was asked on cross-examination :

“Q. The truth of the matter is, you had threatened to kill him, hadn’t you, before you went over there ?
“A. I had not.
“Q. And the truth of the matter is, that Cecil had been running scared all day, hadn’t he?
“A. I don’t know.
“MR. CRAIG: Now, Your Honor, I am going to object; Counsel is engaged in more badgering of the witness.
“THE COURT: I’ll overrule it.”

We find nothing in the foregoing to indicate that the question was limited to a threat made only on the morning of the killing.

Appellant disclaimed on cross-examination any knowledge as to whether the deceased’s car was packed and ready to move at the time of the killing. No objection was offered to such testimony.

After having stated on direct examination that his only purpose of going to the deceased’s house at the time the killing occurred was to see if Sal Stewart was still interested in the purchase of his car, appellant was asked on cross-examination:

“Q. You are certain that you got your wife to take you over there to hide from the Police, because the Police had been called by your own daughter to come out there — ”

Appellant’s general objection to such question was promptly sustained and thereafter appellant made no request to instruct the jury to disregard or a motion for mistrial.

Subsequently, as the cross-examination changed from subject to subject, the prosecutor, after establishing the appellant’s daughter’s name, age and address, asked:

“Q. In truth and in fact, this is not the only person you have threatened to kill, is it?”

Again appellant’s general objection was sustained and no further relief was requested by the appellant.

In answer to the prosecutor’s questions appellant related that following the killing he had gotten rid of his bloody clothes and that he and Sal had driven around to avoid being “picked up by the police.” He was then asked:

“Q. The Police had been looking for you all day, had they not ?
“A. No; they hadn’t.
“Q. You had no reason to believe that they were looking for you that morning ?
“A. No.. I was at home—
“MR. CRAIG: Your Honor, we object to that—
“THE COURT: Just a minute, Counsel.
“A. I was at home until around three o’clock. * * * I was at home from nine-thirty until three o’clock. * * * If the Police had been looking for me, I would have been very easily located.
“Q. And your testimony is that the Police did not come to your house at 200 North Chandler, on November 30th, 1966?
“MR. CRAIG: We object to that, Your Honor. * * * He is again indulging in his attempt to prejudice this Jury. And it is irrelevant and immaterial.
“THE COURT: I overrule your objection.”

Thereafter appellant testified the police had not come by his house while he was home or at any other time that day to his knowledge.

This, we think, is a fair summary of the cross-examination of which appellant complains.

The State takes the position that the questions asked were proper in view of appellant’s testimony on direct examination including his theory of self-defense, or to prove state of mind, and that such questions were all asked in good faith. They point to the lack of objection to some questions and the proper action of the court in sustaining some objections made.

The Court of Criminal Appeals rarely reverses a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause reversal the question must be obviously harmful to the defendant. See Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731.

In deciding such question it must be remembered that each case has its own characteristics and this Court will look at the entire record with the surrounding circumstances, the nature of the evidence sought and its possible relationship to other testimony, in order to determine the probability or possibility of injury.

It is, of course, well established that an accused is to be tried upon the merits of each case alone and that proof of extraneous crimes or specific acts of misconduct are not generally admissible, except under certain conditions and exceptions.

The case at bar can be distinguished from Clark v. State, 115 Tex.Cr.R. 71, 29 S.W.2d 390 and Jackson v. State, 115 Tex.Cr.R. 320, 29 S.W.2d 778, relied upon by the appellant. In those cases the question put to the defendant on cross-examination carried the imputation that the defendant had attempted to suppress testimony in other cases than the one on trial. Further, unlike Lera v. State, 138 Tex.Cr.R. 127, 134 S.W.2d 248, the questions here did not involve a violation of the confession statute.

We recognize that under certain circumstances, permitting a question on cross-examination imputing guilt of another offense is prejudicial error notwithstanding the negative answer of the defendant. Lamm v. State, 94 Tex.Cr.R. 560, 252 S.W. 535. It is noted that in Lamm, however, the defendant claimed that he was not present at the scene of the offense, and that the evidence as to guilt or innocence was nicely balanced.

We have carefully examined the entire record and cannot conclude that under the circumstances presented that the questions were improper or were framed in such a way as to be so harmful to the appellant as to call for reversal, particularly in light of the court’s rulings.

Appellant’s first ground of error is overruled.

In his remaining ground of error appellant complains that the court unduly restricted his right of cross-examination of the State’s witness, Mrs. Patsy Smithpeter. We have examined each question asked which the court, over the State’s objection, refused to allow the witness to answer and find that most are irrelevant and immaterial to any issue in the case. If revelant, the appellant has failed to show what answers the witness would have given and nothing is presented for review.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    William Glenn ANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 40922.
    Court of Criminal Appeals of Texas.
    Fob. 28, 1968.
    Rehearing Denied April 24, 1968.
    Jerry P. Childs, Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Bruce Bangert, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

OPINION

The appeal is from a conviction for burglary with punishment, enhanced under Art. 62 P.C., assessed at 12 years.

Appellant’s first four grounds of error complain of the admission in evidence of his written statement made to Deputy Sheriff James Brown in which he confessed that he participated in the burglary.

A pre-trial hearing was had at which evidence was adduced on the issue of the voluntariness and admissibility of the confession following which the court made and filed his findings on the issues of fact and law and admitted the confession in evidence.

The grounds of error complain of the admission of the confession over appellant’s objections (1) that Art. 15.17 Vernon’s Ann.C.C.P. was not complied with; (2) that the magistrate’s warning was not adequate or sufficient to apprise appellant of his rights under Art. 15.17 V.A.C.C.P. or under the principles of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; (3) that the confession, on its face, showed a failure to meet the requirements of Art. 38.22 V.A.C.C.P.; and (4) that compliance with Art. 38.22 V.A.C.C.P. did not meet the requirements of the principles set out in Miranda v. State of Arizona, supra.

The trial court found, by order reduced to writing, signed and filed, (1) that appellant made the statement voluntarily after having been apprised of his rights and properly warned; (2) “that in connection with the defendant having understood his rights with respect to counsel, that he did understand them and he effectively waived counsel,” and (3) “that the warnings given by the magistrate E. E. Nobles, coupled with the warning given by Mr. Brown, effectively and adequately warned him of his right to counsel and as to other rights under the laws and Constitution.”

The warning portion of the statement dated October 5, 1966, signed by appellant, reads:

“I, William Glenn Anders, have been first duly warned by a magistrate, Judge E. E. Nobles, who is the Justice of the Peace Prec. #3 Odessa, Ector County, Texas, and also by James F. Brown, the person to whom this statement is made, FIRST, that I do not have to make any statement at all, and SECOND, that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, and THIRD, that I have a right to hire and talk with a lawyer; and that if I am unable to hire a lawyer that I can ask to have a lawyer appointed, and that I have a right to have an examining trial. I have further been informed by said magistrate of the accusation against me and the affidavit, if any, filed in support of such accusation.
“Nobody has mistreated, threatened, or forced me in any way to make this statement, and nobody gave me anything or promised me anything to make this statement. I do not want to talk to a lawyer before making this statement and I wish to make the following statement of my own free will:
“My name is William Glenn Anders,

James Brown, Deputy Sheriff of Ector County, testified at the pre-trial hearing before the court and later before the jury to the effect that appellant was taken before Justice of the Peace Nobles to be warned of his rights, and to have bond set, within minutes after he arrived at the courthouse and jail in Odessa.

He further testified that immediately after warning had been given by the magistrate and bond had been set at $3,000, he took appellant to his office and gave him the warning shown on the confession, following which he interrogated him and obtained the confession which was reduced to writing and signed by appellant within 45 minutes to an hour after he was brought to the courthouse.

We quote from the testimony of Mr. Brown, to whom the confession was made :

“Q. All right. Deputy Brown, would you tell the court the nature of the warning that was given by Judge Nobles to the defendant, William Glenn Anders ?
“A. Well, he was told that he didn’t have to make a statement, or any statement that he did make could be used against him and he is entitled to a lawyer or have a lawyer appointed for him.
“Q. All right, sir. Now, Judge Nobles asked Mr. Anders if he wanted a lawyer, didn’t he, at that time ?
“A. Yes, sir.
“Q. What did Mr. Anders say to Judge Nobles in that regard?
“A. Told him that he didn’t want a lawyer at that time.
* * * * * *
“Q. And what did you do in the course of your conversation with him?
“A. I asked him if there was anyone that he wanted to call, his attorney or anyone else that he wanted to call.
“Q. All right, sir. Now, at that time did you or did you not yourself administer a warning to Mr. Anders concerning his rights in regards to giving a statement?
“A. Yes, sir.
“Q. What did. you tell him concerning this warning?
“A. Told him that he didn’t have to make any statement, any statement that he did make could be used against him, he was entitled to have his attorney present at the time that he was making the statement if he wished.
“Q. In this warning did you mention anything to him about the fact that he could have a lawyer appointed if he wanted one and couldn’t afford to hire one?
“A. Yes, sir.
“Q. All right, sir. What did Mr. An-ders answer in regards to this warning that you said you gave him personally ?
“A. He said he understood it and he was ready to go ahead and talk.
“Q. Go ahead and give you a statement?
“A. Yes, sir.
“Q. Didn’t want a lawyer?
“A. No, sir.
He ⅜ ⅜ ⅜ ⅜ ⅜
“Q. That was in your office down there on the second floor in the Ector County Courthouse, is that correct, sir?
“A. Yes, sir.
“Q. He at that time then gave you a statement concerning this burglary, charge, is that correct ?
“A. Yes, sir.
“Q. And you typed it up, I believe, is that right?
“A. Yes, sir.”

On cross-examination:

“Q. Now, your testimony with respect to Mr. Anders and what followed, your testimony is that you carried him before the J. P. and then you did what with him?
“A. After the Judge gave him this warning and set a bond he went back to our office and was offered a telephone to make a call to his attorney or anyone that he wanted to call.
* * * * * ⅜
“Q. Could you testify again for us, please, sir, the extent of that warning, or the nature of it so far as you can recall the exact words that you said.
“A. I advised him he didn’t have to make any statement at all, any statement that he did make could be used against him, that he could call his lawyer and have him present at the time that the statement was being made.
“Q. Did you at anytime — is that all that you told him?
“A. As far as I can recall, yes, sir.

On re-cross-examination:

“Q. Mr. Brown, again in connection with your warning, this warning that you have read over here that is on the statement given by Mr. An-ders, is that substantially the warning that you gave him ?
“A. Yes, sir.
“Q. Did you add anything further than that warning?
“A. No, sir.”

On re-direct examination:

“Q. How much time had elapsed between the time he was surrendered to your custody and the time you were through with the statement? In other words, you had taken the statement, he had signed it, Mr. Baker witnessed it and all, the whole shooting match?
“A. I would say approximately forty-five minutes.
⅜ ⅝ ⅝ ⅝ ⅜ ⅝
“Q. I am talking about from the time he first was surrendered to you, you took him to the magistrate, took the statement from him and took him up and put him in jail, how long was that, how long a period of time?
“A. Approximately forty-five minutes or an hour.”

Judge Nobles testified at the hearing before the court, and his certification as to the warning required by Art. 15.17, supra, which he gave appellant, was introduced in evidence.

The certificate relating to the duties of the magistrate under Art. 15.17, supra (not to be confused with the Examining Trial, Art. 16.01 V.A.C.C.P.) reads:

“This is to- certify that on October 5, 1966, at 6 P.M., William Glenn Anders ... . Odessa appeared before me m - City _ Texas, at which time and County
place I administered to him the warnings required by Article 15.17 of the Texas Code of Criminal Procedure, which becomes effective on January 1, 1966, to-wit: The accusation against him and of any affidavit filed therewith; his right to retain counsel; his right to request the appointment of counsel if he is unable to obtain counsel; his right to have an examining trial; his right not to be required to make any statement or take a polygraph examination; and that any statement made by him might be used against him. I further informed him that he would be granted a reasonable time and opportunity to consult with counsel if he desired.”

Appellant testified at the hearing before the court but did not testify before the jury. His testimony was to the effect that he was arrested at Pittsburg, Texas, by the Sheriff of Camp County under authority of a warrant from Odessa, and a judge told him or read “a bunch of stuff off and told me he would set my bond at $4000, * * *. I don’t remember what it was he told me.” The next day, October 5, 1966, he was brought to Odessa by Ector County Deputy Sheriff Johnson, arriving between five-thirty and six in the afternoon, the distance being more than 400 miles and it being a ten hour drive. Fifteen or twenty minutes after he was “brought upstairs and put in that room over there across from the jailer’s office,” Deputy Brown took him before Justice of the Peace Nobles. Appellant further testified:

“Q. What did Judge Nobles tell you?
“A. I don’t remember what all it was.
“Q. Well, he mentioned the fact that you were entitled to a lawyer if you wanted one, didn’t he?
“A. Yes, sir.
“Q. And so far as that part of it is concerned do you remember anything else?
“A. No, sir, except setting bond at three thousand dollars. That is it.
“Q. Then where did you go?
“A. Back to the room.
“Q. To the same room we are talking about ?
“A. Yes, sir.”

Appellant further testified that he did not recall Deputy Brown giving him any warning, and testified:

“Q. Well, did you feel under any compulsion to give the statement?
“A. All I wanted was to get them off my back.
“Q. Did you feel under any compulsion to give a statement on the basis of what they told you?
“A. The only reason I give the statement they told me they done had one statement.
“Q. Did that coerce you or influence you in giving the statement that you did?
“A. Yes, sir.”

Appellant further testified that Deputy Johnson had not talked to him about the case and that he was placed in jail around 7:30 P.M., after having been taken before Judge Nobles, talking to Deputy Brown and ultimately signing a statement.

Asked if he read the statement he gave, appellant replied: “I read the part I said.”

While there are discrepancies in the testimony as to the exact wording used in warning and apprising appellant of his rights, there is sufficient evidence to- support and sustain the finding of the trial judge and his conclusion that the confession was voluntarily made and was admissible.

We overrule the contention that the confession was inadmissible under the principles of Miranda v. State of Arizona, supra. Our holding to the contrary is consistent with both the majority and dissenting opinions in the recent cases of Charles v. State, Tex.Cr.App., 424 S.W.2d 909, and Torres v. State, Tex.Cr.App., 422 S.W.2d 741.

The confession on its face shows that appellant was warned by Judge E. E. Nobles, a magistrate, who was the Justice of the Peace Precinct No. 3, Odessa, Ector County, Texas, and also by James F. Brown, to whom it was made on October 5, 1966.

The certificate of Judge Nobles signed the same day certified that on October 5, 1966, at 6 P.M., appellant appeared before him in Odessa, Ector County, Texas, at which time he administered to him the warnings required by Art. 15.17, supra.

The state concedes that appellant’s confession does not specifically set out the time, date and place of the magistrate’s warning, and that appellant objected to the admission of the confession because of such omission.

This court has held that the written confession made by a defendant while in custody must show the statutory warning on the face of the confession and that parol testimony or recitals in the officer’s certificate will not supply the omission. 1 Branch’s Ann.P.C. 2d Ed., Sec. 84, and cases cited. Jenkins v. State, 60 Tex.Cr.R. 236, 131 S.W. 542; Overstreet v. State, 67 Tex.Cr.R. 565, 150 S.W. 630; La Fell v. State, 69 Tex.Cr.R. 307, 153 S.W. 884; Grice v. State, 115 Tex.Cr.R. 64, 29 S.W.2d 793.

The question we are called upon to decide is whether the rule applicable to the required statutory warning should be applied so as to prohibit the admission in evidence of a voluntary confession in writing which does not on its face set out the time, date and place of the magistrate’s warning, though the confession meets all other requirements of the Texas Confession Statutes and does not offend the Due Process Clause of the United States Constitution as construed by the Supreme Court in Miranda v. State of Arizona, supra.

Our conclusion is that the purpose of the requirement that the time, date and place the warning was administered by the magistrate be shown is fully met where the testimony, including that of appellant as well as the certificate of the magistrate, shows that the magistrate administered the warning almost immediately prior to the warning given by the person to whom the confession was made and the making of the confession.

Absent the circumstances here presented, our holding should not be interpreted as requiring anything less than a literal compliance with the Confession Statutes.

Appellant’s grounds of error relating to the admission of his confession are overruled.

Ground of error No. 5 complains that an ex parte hearing was held by the court, during the course of the trial, out of the presence of appellant or his counsel.

This ground of error appears to be directed to a supposed conference between the court and members of the district attorney’s staff regarding questions of law which resulted in the court reversing a ruling and admitting evidence offered by appellant. No injury or harm to appellant being shown, ground of error No. 5 is overruled.

The remaining ground of error relates to the rulings of the trial court refusing to allow testimony of Deputy James Brown at the hearing on the voluntariness of the confession and its admissibility to be read by the court reporter at the trial before the jury — “co-existent with appellant’s cross-examination.”

We are cited to no authority supporting this ground of error and know of none.

The judgment is affirmed.

      . Art. 38.22 V.A.C.C.P. has since been amended and two separate warnings are no longer required. Acts 60th Leg. p. 1740.