author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. George Lawrence WATSON, Appellant.
    No. 49972.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Thomas R. Green, Special Asst. Atty. Gen., St. Louis, for respondent.
    David A. Yarger, Versailles, for appellant.
   DALTON, Judge.

Defendant was charged and convicted of burglary second degree under the Habitual Criminal Act and was sentenced to eight years in the state penitentiary. See Sections 560.070, 560.095 and 556.280 RSMo 1959, V.A.M.S. It was further “ordered by the court that sentence is to begin at the expiration of sentence of cause number C-31649, making a total of thirteen (13) years in the penitentiary.” Defendant has appealed as a poor person from the judgment entered against him, and a full transcript has been provided. He is represented in this Court by an attorney of his own choice.

By an information filed in the Circuit Court of Jackson County on April 4, 1962, it was charged that defendant, “on the 13th day of March, 1962, at the County of Jackson, State aforesaid, did unlawfully, felo-niously and burglariously break into and enter a certain building, to-wit: the store room of one Walter Weinberg, located at 3303 Brooklyn, Kansas City, Jackson County, Missouri, by then and there breaking and bursting the side door or said store room there situate, the same being a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, feloniously and burglar-iously to steal * *

The Weinberg store at 3303 Brooklyn was a grocery, also referred to as Walter’s Market, and next door to it on the north, at 3301 Brooklyn, was the drugstore of one Herbert Elliott. Both stores were located in the same building, but the stores were completely separated from each other by a partition wall, except near the rear where there was an enclosed common areaway and steps that led to the basement. On each side of the areaway there was a door, one opening into the drugstore and the other into the grocery store. The record and certain admissions indicate that, at about the date of the filing of.the above charge involving the grocery, a similar charge of burglary second degree and stealing on the same date had been filed against defendant involving the drugstore of Herbert Elliott at 3301 Brooklyn. Appellant’s brief concedes that “these were separate businesses, each having their own doors to lock or attend to that led into a common passageway.”

On November 14, 1962, an amended information was filed against defendant under the Habitual Criminal Act, which added to the prior charge, a charge that defendant “on the 8th day of December, 1952, in the United States District Court for the Western District of Missouri, Western District, was then and there convicted of Bank Robbery, and was sentenced therefor to serve a term of 7 years therefor, in the Federal Penitentiary at Leavenworth, Kansas, and thereafter was received at said penitentiary on January 30, 1953, and thereafter was discharged from said penitentiary * * (Italics ours.)

Thereafter, a further amended information was filed against defendant on November 30, 1962 wherein the prior information was amended so as to exclude the words “to steal” and to conclude the charge as follows: “ * * * with felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being then and there unlawfully, felo-niously and burglariously to commit a felony therein, to-wit to unlawfully, feloniously and burglariously break into and enter a certain building, known as 3301 Brooklyn, Kansas City, Jackson County, Missouri; against the peace and dignity of the State.” The information contains no further allegation with reference to the ownership of the drugstore or any allegation with reference to the intent of the defendant when breaking into the drugstore of one Herbert Elliott, the owner.

The record further shows that, thereafter, the defendant filed a petition for a writ of habeas corpus claiming that he was unlawfully imprisoned because of alleged defects in the amended information. A hearing was had and relief was denied.

Thereafter, defendant filed an application for a change of venue (rather for a change of judge) based on the alleged prejudice of the judge. The application was sustained and a transfer was ordered from the division of the Circuit Court of Jackson County presided over by Judge John H. Lucas to the division presided over by Judge Paul A. Bu-zard. A further motion to dismiss the charge against defendant was then filed by defendant, pro se, because of the alleged defects in the information, one claim being that defendant was now charged with two charges of burglary, both committed “on the same building with only one entry and one exit, this constitutes only one crime.” Defendant’s further theory was that the two prior separate charges against him were now combined in one information. The motion to dismiss was denied. Defendant then filed a second petition for a writ of habeas corpus on substantially the same grounds as had been previously ruled and it was denied.

The amended information upon which the cause was tried is attacked in this Court on numerous grounds both in the appellant's brief filed pro se and in the brief filed by appellant’s attorney. Further, under S.Ct. Rule 28.02, V.A.M.R., it is our duty on this appeal to determine the sufficiency of the amended information since the rule, in part, provides: “ * * * No assignment of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence shall be necessary upon an appeal and the appellate court shall render judgment as to those matters upon the record before it. * * * ” Defects in an information may be raised for-the first time in this Court. State v. Jeffords, Mo., 64 S.W.2d 241, 242 [2,3].

The first question presented involves the sufficiency of the allegations of the last amended information to invoke the provisions of Section 556.280 RSMo, as amended Laws 1959, S.B. No. 117, § 1, V.A.M.S., and to authorize the trial judge, rather than a jury, to assess the punishment in the event the defendant was found guilty of the offense charged.

The mentioned statute in part provides: “If any person convicted of any offense punishable by imprisonment in- the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows: * * * Evidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation shall be heard and determined by the trial judge, out of the hearing of the jury prior to the submission of the case to the jury, and the court shall enter its findings thereon. If the finding is against the prior conviction, sentence and subsequent imprisonment or fine, parole or probation, then the jury shall determine guilt and punishment as in other cases. * * * ”

Appellant contends that the amended information in the final form upon which the cause was tried “did not charge that appellant had been ‘subsequently placed on probation, parole, fined or imprisoned’ ” as a result of the conviction for the prior offense alleged; that the amended information only charged that he was “received at a certain penitentiary” and not that he was “imprisoned” as required by the statute. It is insisted that the allegations of the amended information with reference to the prior conviction were not sufficient to invoke the provisions of the Habitual Criminal Act, as amended.

We think the allegations of the amended information were in fact insufficient to invoke the provisions of the Habitual Criminal Act; and that, while as a question of fact an inference might possibly be drawn from the allegations that appellant was in fact imprisoned in the mentioned institution, yet the Court did not so find and the several allegations to the effect that defendant was “received at said penitentiary” and thereafter “discharged from said penitentiary” do not clearly and definitely comply with the provisions of the mentioned statute and do not constitute an allegation or charge that defendant was subsequently placed on probation, paroled, fined or imprisoned for the prior offense, hence the trial court had no authority to assess the punishment. See State v. Bryant, Mo., 375 S.W.2d 107, 109 [3-5]; State v. Franck, Mo., 260 S.W.2d 52. We must and do hold that the amended information was fatally defective in the respects mentioned and in view of the defective allegations and the failure of proof as hereinafter set out, the defendant was not subject to the procedure provided for by the Habitual Criminal Act, as amended Laws 1959, S.B. No. 117, § 1 et seq., hence appellant was entitled to have a jury assess his punishment in the event he was found guilty of the subsequent crime sought to be charged against him.

A further assignment of error is that the information is otherwise fatally defective for the reason that it does not charge an offense under Section 560.070 RSMo 1959, V.A.M.S., for burglary in the second degree. This section provides: “Every person who. shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” (Italics ours.)

Under this statute intent is an essential element of the offense and must be established by the evidence beyond a reasonable doubt. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275 [2-4]. Breaking is also an element of the offense, although raising a window and entering without consent has been held a sufficient breaking under this statute. State v. O’Brien, Mo., 249 S.W.2d 433, 434 [1-4], Entry is also an essential element of burglary as defined by the statute, although entry may consist of the insertion of any part of the body for the purpose of committing a felony. State v. Pigques, Mo., 310 S.W.2d 942, 945 [2-5]; State v. Whitaker, Mo., 275 S.W.2d 316, 319 [3, 4]. It was immaterial to any of the issues here that the drugstore and the gro-eery store were located in the same building since the occupancy or possession of the stores was in different persons and such occupancy or possession of the grocery store by Weinberg was sufficient to support that part of the charge of burglary with reference to the ownership of that store. State v. Jeffords, supra, 64 S.W.2d 241, 242 [4, 5] ; State v. Peterson, Mo., 305 S.W.2d 695, 697 [5, 6].

In the part of the case tried to the jury, defendant was not tried for the burglary of the drugstore and the amended information does not charge any intent to steal or commit any crime in the drugstore. The allegation contained in the amended information with reference to the breaking and entering of the drugstore was clearly intended solely for the purpose of trying to make out the offense sought to be charged against defendant, to wit, a charge of burglary second degree of the grocery store, but further the crime alleged to have been intended to be committed by defendant, when breaking and entering the grocery store, could only be committed in the drugstore and not in the grocery store.

We think the amended information wholly fails to state an offense under the the mentioned, statute because it fails to charge that the breaking and entering of the grocery store was done with the intent to steal or commit any crime therein. Section S60.070 RSMo 1959, V.A.M.S. While it does charge that the breaking and entering was done with an intent “to commit a felony therein,” the felony alleged could not be committed within the grocery store. Even if we assume that defendant broke and entered the grocery with the intent to to break into the drugstore and that he then broke into and entered the drugstore, yet to be burglary second degree of the drugstore, he would have to have had a further intent to steal or commit a crime in the drugstore, and an entering of the drugstore would have had to have taken-place and, therefore, the second offense- intended could not be committed in the grocery store, but in the drugstore.

Even if we assume that the charge was intended to cover a state of facts where the defendant broke into and entered the grocery store with an intent to break a hole in the partition wall between the two stores and reach his arm through the hole and steal goods, wares ■ and merchandise from the drugstore, such facts might well constitute a breaking and entering of the drugstore with an intent to steal in the drugstore, but such offense would not be committed in the grocery store, hence the amended information upon which the case was tried did not charge an offense under § 560.070, supra, as far as the grocery store was concerned, and it did not state facts to support the intent charged to commit a crime in the grocery store.

The State’s theory of the case on its merits clearly appears from the statement of the assistant prosecuting attorney to the Court prior to the beginning of the trial, when the amended information was under attack in the last habeas corpus proceeding. The statement is as follows: “The charge in this one case of 31766 is alleged complaint of the — of Walter Weinberg, who is the owner of the grocery store. In 31765, it is charged with breaking and entering the storeroom and premises of a Herbert Elliott, I believe, who at that time was the owner of the drugstore. Briefly the State’s proof will be that entry was made through the grocery store at 3303 Brooklyn and then from that grocery store into the drugstore, which is 3301 Brooklyn. If the Court will notice in my Information, I pleaded in the case which is up for trial today, 31766, that I pleaded that he broke into this grocery-store with the intent to commit a felony therein, to-wit: to break and enter the drug store. That is the way I pleaded the case and there is no question that my proof will —he was apprehended inside the drug store by the police -officers, there is no question— my proof will be that he broke into the grocery store and then went in through the two side-doors, into the drug store.”

The State contends that- “the amended information properly alleged that a burglary was performed at 3303 Brooklyn” and in support of that position relies upon State v. Taylor, 362. Mo. 676, 243 S.W.2d 301; and State v. Peebles, 178 Mo. 475, 77 S.W. 518. These cases do not support the State’s theory.

The evidence offered by the State followed its trial theory, as appears from the amended information and counsel’s statement to the Court. The State’s Exhibit No. 4 offered and admitted in support of the alleged prior conviction was a certified copy of the records of the Medical Center for Federal Prisoners at Springfield, Missouri. The exhibit was admitted over objection. It showed the prison record of George Lawrence Watson, as follows: “Received from Eastern District of Missouri * * * December 18, 1952 at U. S. Penitentiary, Terre Haute, Indiana with final transfer to Medical Center for Federal Prisoners, Springfield, Missouri Nature of Crime Armed Bank Robbery Sentence 7 years * * * Date of Discharge January 29, 1958, upon compliance with sentence.” . (Italics ours.) The exhibit further showed that George Lawrence' Watson entered a plea' of guilty to the offense indicated above in the U. S. Dist. Court for the Eastern District of Missouri, Eastern Division, and the record there showed a sentence of seven years for the “offenses of unlawfully by force and violence, and by intimidation, taking from the presence of another, property and money belonging to a certain bank, the deposits of which are insured by the Federal Deposit Insurance Corporation; said defendant did put in jeopardy the life of the said person or persons by the use of a dangerous weapon and device; as charged in cts.' 1 and 2 of indictment * * The judgment record further stated that “the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of seven (7) years as to and under the charge as contained in each of counts one and two of the indictment herein; such terms of imprisonment to begin, run, and terminate concurrently.”

It will be noted ' that the exhibit does not conform to the allegations of the amended information concerning a prior conviction, nor does the exhibit support the other allegations of the amended information. Neither the pleadings nor the evidence on the mentioned issue were sufficient to take from the jury the right to fix defendant’s punishment in the event of a conviction.

The State insists that “the second offender statute was complied with notwithstanding any variance between the amended information and the State’s Exhibit No. 4,” but the cases cited do not rule the facts shown by this record. The allegations of the amended information are not supported by the exhibit as to the name of the crime, the place or Court where the conviction was had, or the place to which the convict was sent or as to the place of discharge. The exhibit was objected to by defendant (who was attempting to defend himself) on the ground thát the exhibit did not conform to the allegations of the amended information, particularly as to where he was “received and discharged from.” Further, when Exhibit No. 4 was admitted in evidence out of the presence of the jury, the only finding made by the trial judge was that “the Court finds that you have formerly been convicted of a felony under the Federal Statute.” The only record entry with reference to the hearing of evidence on the matter of a prior conviction charged in the amended information was that evidence was heard and “the Court finds that the defendant was convicted' of a former crime, set forth in the information.” The Court failed to make any finding as to whether the defendant, after sentence, had been “subsequently placed on probation, paroled, fined or imprisoned.” See Section 556.280 [2] RSMo, as amended Laws 1959, S.B. No. 117, § 1, V.A.M.S. Nevertheless the Court fixed defendant’s punishment.

The evidence offered by the State to support the charge of burglary in the second degree of the grocery was briefly as follows A Mrs. Stover lived in the back of her place-of business at 3305 Brooklyn. In the early-hours of March 13, 1962, at approximately-5:30 a. m., she was awakened and heard; noise and movements in the grocery store next door. She promptly telephoned the-police department, since she could not seethe grocery store owner’s car in front of' the store. The police arrived in a few minutes and found a 1950 Oldsmobile parked, on the south side of 33rd Street adjacent, to the north side of the mentioned drug-, store; its front was near the alley at the-rear of the mentioned stores. One officer was sent to the front of the grocery and drugstore, while the other followed the-tracks of two persons in a light snow as the tracks left the automobile and entered the alley. He continued to follow the tracks in the alley to the rear of the mentioned grocery store, where he noted the tracks entered the back door of the grocery, but he saw no tracks coming out of the store. The officer further noted that the rear door, of the grocery had been pried open and. there were several pry marks on the outside of tlie facing’ of this rear exterior door. He then entered through the door and noted that an inside door of the grocery-opening onto the areaway between the rear portions of the two stores had been forced open. Finding no one in the grocery store he proceeded through the second door into the areaway and there observed that a door from the areaway into the drugstore had been forced; a lock was lying on the floor, and a crossbar on the inside of the drugstore had also been pried off. The officer then proceeded through this third doorway into the drugstore and there observed the defendant and another person engaged in prjdng at an exterior door in 'the north wall of the drugstore. This exterior door opened onto 33rd Street. It had been nailed up but defendant and his associate were trying to get it open. When the officer entered defendant had the Kem-Tool and his companion had a piece of pipe. A piece of plywood on the outside had not yet been removed when the arrest was made. He then placed both persons under arrest. A piece of two-by-four was lying on the floor, together with dust and nails and another piece of wood which had been removed from the floor was there with some nails sticking up. All of the three doors through which the officer passed before seeing defendant and his companion working at the fourth door were damaged. There was testimony that the rear door and the side door of the grocery store had been carefully locked and secured the previous evening, but there was no evidence as to whether the door from the areaway into the rear of the drugstore had been actually locked up or closed the night before. The owner of the grocery store testified that he could see nothing disturbed and nothing missing from his grocery. He said that the damage to the rear door of the grocery and the side door which entered the area-way exceeded $40. The rear door had been protected by two iron bars on the inside of the building and a lock. The iron bars were out and the lock broken when the owner arrived at his store. The lock on the interior door into the areaway had also been broken.

After the arrest of defendant at the north side door of the drugstore, the officer saw a piece of pipe and a pry bar, referred to as a K-23, which is a Kem-Tool, and other things on the floor where the arrest was made.

The door on the north side of the drugstore was not completely open when the arrest was made, since the piece of plywood nailed on the outside obstructed passage. There were a few pry marks along the side of the door near the lock.

While the owner of the drugstore did not appear as a witness, it appeared from the cross-examination of other State’s witnesses that the owner of the drugstore had testified at the preliminary hearing of the defendant to the effect that he found nothing missing from the drugstore and that nothing had been disturbed. There was testimony that an open cash drawer was sitting on a table in the drugstore at the time of defendant’s arrest. Nothing had been taken from it and nothing had been disturbed in the store.

Defendant had a bill of sale in his pocket for the 1950 Oldsmobile in question when arrested.

In his cross-examination of State’s witnesses, the defendant conceded his presence in the drugstore at the time of his arrest, but his theory as shown by the testimony of his witness was that he had just walked in the drugstore through another door to see Rhodes and recover his automobile which he had loaned to a friend who was to return it and leave it parked at this address so that defendant could recover it.

Since we have found the allegations of the amended information insufficient to comply with the provisions of the Habitual Criminal Act and also insufficient to charge the offense of burglary in the second degree of the grocery store and the evidence in support of the allegations of the amended information insufficient to support the alie-gations as to prior conviction and imprisonment, and no finding by the trial judge of any prior imprisonment, the judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Dorothy Delores PASTERNAK, Respondent, v. Frank MASHAK and Frank Mashak, Executor of the Last Will and Testament of Elizabeth Milanko, Deceased, Appellants.
    No. 50335.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.
    Ralph E. Suddes, Mattoon, Ill., Sidney W. Horwitz, Dubinsky & Duggan, St. Louis, for plaintiff-respondent.
    Frank Mashak, St. Louis, for appellants.
   HOUSER, Commissioner.

This is a suit to contest a will. A jury found the instrument not to be the will of testatrix. Defendant, sole beneficiary, appealed on the ground that the proof was insufficient to establish mental incapacity or undue influence and that the jury was improperly instructed on the law of the case.

Inquiry into the first concern of every court convinces us that we do not have appellate jurisdiction and that the case must be transferred to the appropriate court of appeals, for the following reasons.

We do not have jurisdiction on the ground that the title to real estate is involved for the reason that no real estate is listed in the inventory. Winn v. Matthews, Mo.Sup., 130 S.W.2d 484 [1].

We do not have jurisdiction on the ground that the amount in dispute, exclusive of costs, exceeds the sum of $15,000 because the record filed in this court does not affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds that sum.

The pleadings do not place any value on the estate. The petition alleges that testatrix died possessed of “a large amount of property,” without stating how much. The answer is silent on the question. It is the “net value of the estate” that fixes jurisdiction on appeal from a judgment for will contestants, Gee v. Bess, Mo.Sup., 171 S.W.2d 672, hut neither oral nor documentary evidence filed in this court affirmatively shows the net value of testatrix’ estate after the payment of allowed and un-allowed (if any) claims and expenses of administration incurred and to he incurred.

Appellant’s jurisdictional statement recites that no claims were pending against the estate when this case was tried; that the assets then and at the time the appeal was taken were $21,751.65, “subject to inheritance taxes, balance of executor’s fee and final probate costs” (the amounts not stated), and that the amount involved on this appeal is in excess of $15,000, but this mere recital does not prove itself-and does not confer appellate jurisdiction on this court. State ex rel. State Highway Comm. v. Schade, Mo.Sup., 265 S.W.2d 383. Jurisdiction must affirmatively appear from the record, Juden v. Houck, Mo.Sup., 228 S.W.2d 668, and cannot be grounded upon surmise, speculation or conjecture. Long v. Norwood Hills Corp., Mo.Sup., 360 S.W.2d 503.

A thorough search of the record and exhibits admitted in evidence, as filed in this court, shows that the time for the filing of claims has passed; that settlements have been filed and approved and that, according to the annual settlement filed December 20, 1962, there were “net cash assets” of $21,-751.65, but does not affirmatively show with certainty that $21,751.65 is the net value of the estate. There is nothing in this rec-' ord to show what debts the estate owed; the amount of claims filed against the estate, allowed and paid; the amount of claims pending and unallowed, or allowed and unpaid; the amount of inheritance or other taxes owed; the amount of executor’s fees still due and owing; the probate court costs; other unpaid expenses of administration, or other charges which may diminish the net cash assets prior to distribution. The record does not affirmatively show that nothing is due and owing on these items, or how much is owed thereon, or that they will not in toto reduce the net value of the estate to an amount less than the jurisdictional amount. In similar situations this court has ordered transfer of the cause to the courts of appeals, Aurien v. Security Nat. Bank Savings & Trust Co., Mo.Sup., 129 S.W.2d 1047 [1]; Whitworth v. Monahan’s Estate, 339 Mo. 1123, 100 S.W.2d 460; Bostian v. Milens, 354 Mo. 153, 188 S.W.2d 945 [1]; Nies v. Stone, Mo.Sup., 108 S.W.2d 349; Smith v. Oliver, Mo.Sup., 148 S.W.2d 795; In re Ellis’ Estate, Mo.Sup., 127 S.W.2d 441; Higgins v. Smith, 346 Mo. 1044, 144 S.W. 2d 149; or the court of appeals to which an appeal was taken has retained jurisdiction. Freeman v. DeHart, Mo.App., 303 S.W.2d 217 [2].

Examination of the record for other pos- ■ sihle grounds of jurisdiction under Art. V, § 3, Constitution of Missouri, 1945, V.A. M.S., reveals no other ground for this court to exercise its power.

The cause is transferred to the St. Louis Court of Appeals.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert James GARDNER, Appellant.
    No. 50304.
    Supreme Court of Missouri, Division No. 1.
    Nov. 9, 1964.
    Thomas F. Eagleton, Atty. Gen., Jefferson City,. Frank P. Motherway, Special Asst. Atty. Gen., St. Louis, for respondent..
    Robert James Gardner, pro se.
   PER CURIAM.

Whereas it appears from the transcript on file in this cause and exhibits attached that defendant’s motion for a new trial, filed on March 15, 1963, following the jury’s-verdict of guilty on March 5, 1963, was heard and overruled on March 21, 1963, and that defendant on the same day (March 21, 1963) was sentenced to imprisonment in conformity to the jury’s verdict; and whereas no notice of appeal was filed in the office of the Clerk of the Circuit Court of said County of Jasper until the 15th day of July, 1963, and no special order of appeal having been applied for or granted under Supreme Court Rule 28.07, V.A.M.R. and the time therefor having elapsed, the Court finds that no timely notice of appeal was filed and hence that this Court is without jurisdiction of this appeal and that the appeal must be dismissed. Supreme Court Rules 28.03 and 82.04; State v. Lowe, Mo. Sup., 365 S.W.2d 613, 614 [3]; State v. Henderson, Mo.Sup., 344 S.W.2d 96, 97.

It is so ordered.


text:
    Raymond D. PAYNE et ux., Petitioners, v. CITY OF TYLER, Respondent.
    No. A-10266.
    Supreme Court of Texas.
    Nov. 4, 1964.
    - Lawrence & Lawrence and Wm. R. Crocker, Tyler, for petitioners.
    Troy Smith, Henry L. McGee, Jr., Tyler, for respondent.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 379 S.W.2d at page 373. In its original opinion the Court affirmed the judgment of the trial court on the basis of its holding that the condemnee’s suit was barred by the two-year statute of limitations. On motion for rehearing the Court of Civil Appeals affirmed the judgment of the trial court upon the additional holding that the trial court did not abuse its discretion in dismissing the case because of the delay on the part of the condemnee in prosecuting his objections to the award.

We refused the application for writ of error with the notation “no reversible error” upon the basis of the holding of the Court of Civil Appeals in its opinion on motion for rehearing. This action is not to be considered as expressing any opinion upon the question of the applicability of the two-year statute of limitations.

The motion for rehearing of the application for writ of error is overruled.


author: McDonald, judge.

text:
    Ex parte George REYES.
    No. 37589.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.

      Richard Tinsman; San Antonio, for petitioner.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Petitioner, an inmate of the state penitentiary, filed an application for writ of habeas corpus with the 175th District Court of Bexar County. The judge of that Court, Honorable John F. Onion, Jr., has made the writ returnable to this Court pursuant to Art. 119 Vernon’s Ann.C.C.P.

It is petitioner’s contention that Art. 63, Vernon’s Ann.P.C. is unconstitutional since' the indictment, including the allegations as to the prior convictions, was read to the jury before evidence was introduced. It is his position that he was prejudiced thereby and denied a fair and impartial trial as guaranteed by the 14th Amendment to the United States Constitution. Petitioner is currently serving a life sentence for the offense of passing as true a forged instrument, with three prior convictions for felonies alleged for enhancement. His conviction was affirmed by this Court in Reyes v. State, 172 Tex.Cr.R. 82, 353 S.W.2d 450.

Petitioner further contends that one of the prior convictions, in fact, his first one, received in the District Court of Atascosa County, Texas, on October 8, 1948, in Cause No. 3058 is void for the reason that he was not then 17 years of age and also the confession was procured by coercion, and for these reasons this conviction could not be used for enhancement purposes.

Petitioner’s counsel filed an exhaustive brief and made a forceful argument citing many cases from other jurisdictions to support his position.

Art. 642 V.A.C.C.P. requires the reading of the indictment to the jury by the prosecuting attorney after the impanelment of the jury in any criminal action. We have sanctioned the procedure of allowing the defendant to stipulate to prior convictions in some cases involving prior convictions alleged for the purpose of enhancing punishment. When this is done the state should not be allowed to introduce evidence as to the prior convictions. See Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; and McDonald v. State, 385 S.W.2d 253, opinion handed down by this Court. By the same token, a defendant may waive the necessity of reading the portion of the indictment containing the prior conviction or convictions to the jury. When the defendant does this, the State should not be allowed to read the allegations as to prior conviction or convictions to the jury.

The constitutionality of Art. 63 has been attacked many times. Petitioner in effect contends that we should “fall in line” with some of our sister states and also adopt “rule making power”, which we do not possess, and declare this statute, Art. 63, supra, unconstitutional. Since we have spoken often on this question, we, can see no advantage to be derived from an extensive opinion here. Our views have been expressed in Redding v. State, 159 Tex. Cr.R. 535, 265 S.W.2d 811, certiorari denied 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Mackie v. State, Tex.Cr.App., 367 S.W.2d 697; Ex Parte Breen, 171 Tex.Cr.R. 669, 353 S.W.2d 233; Finley v. State, 161 Tex. Cr.R. 458, 278 S.W.2d 864; Oler v. State, Tex.Cr.App., 378 S.W.2d 857. We' adhere to them now. Petitioner’s, contention' is overruled.

In the case at bar counsel did not stipulate as to the prior convictions and evidence was adduced showing three prior convictions for felonies less than capital. It is clear to us that these three prior convictions were sufficiently established from the evidence • held by us to be sufficient when we' affirmed this case upon appeal. Also, the record of the hearing held on this application by Judge Onion further reflects that petitioner was previously convicted three times prior to his conviction in the case at bar. Assuming that petitioner is correct and that his first conviction in Atascosa County was void and could not be used for enhancement purposes, he still had two valid prior convictions which were' proven and which would be sufficient to support the enhancement counts to sustain the conviction. Art. 63, supra, only requires two. Petitioner’s contention is without merit, and we overrule it. Johnson v. State, 155 Tex.Cr.R. 325, 235 S.W.2d 180.

Accordingly, the application for the writ of habeas corpus is denied.


author: FANNING, Justice. DAVIS, Justice.

text:
    NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Vivian S. BLACK, Appellee.
    No. 7567.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 29, 1964.
    Rehearing Denied Oct. 20, 1964.

      Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Robert L. Dalby, Texarkana, for appellee.
   FANNING, Justice.

Appellant insurance company issued to Texarkana Water & Sewer Systems a group life insurance policy upon the full-time employees of . said employer. The policy was dated October IS, 1956, and a certificate was issued as evidence "that, subject to policy terms and provisions, Mr. E. C. Black was insured by the policy.

Provisions in the said group life insurance policy relative to definition of' the term “employees” and the “eligibility of employees” are as follows:

“1. DEFINITION OF THE TERM'EMPLOYEES’:
“The term ‘employees’ as used herein means all full-time employees employed and compensated by the employer.
“2. ELIGIBILITY OF EMPLOYEES:
“All present employees
are each eligible for insurance hereunder on the effective date here. AH ether present employees end New employees shall be eligible for insurance hereunder on the 1st day of the policy month coinciding with or next following the date of commencing continuous service with the employer.”

Mr. Black died Jan. 24, 1960. Proof of death was filed, payment of the policy’s $1,000.00 death benefit was refused, and all insurance premiums theretofore paid on members of the Board of Public Utilities of the City of Texarkana, Arkansas, were refunded to Texarkana Water & Sewer Systems, and a refund of premiums paid upon E. C. Black was tendered to his widow and policy beneficiary, Mrs. Vivian C. Black, and such premiums were later tendered into the registry of the court after Mrs. Black filed suit upon the policy. Plaintiff in her suit sought judgment for the amount of the policy, 12% penalty, attorney fee, interest, costs, etc.

The trial court submitted three special issues to the jury. The findings of the jury in responses were in effect, to-wit:

(Special Issue No. 1) The deceased, E. C. Black, from Oct. IS, 1956, to the date of his death was a full-time employee of the Texarkana Water & Sewer Systems ; '
(Special Issue No. 2). Northwestern National Life Insurance Company accepted the premiums on behalf of E. C. Black’s certificate of insurance with the knowledge of the type and character ,of his employment; .and (Special Issue ¡No. '3) the. deceased, E, C. Black, relied upon the company’s ' acceptance of the premiums as acknowledgment .on the part of the company that the insurance policy was applicable to him.

Appellant insurance company did not file a motion for new trial and review of alleged error is confined to the grounds asserted for judgment in appellant’s unsuccessful motion for judgment notwithstanding the verdict. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Rule 324, Vernon’s Ann.Rules of Civil Procedure. The motion requested the trial court to disregard the jury’s answers to the said three special issues mentioned. The principal question for review is whether or not there is evidence of probative force to support the jury’s findings on these special issues.

The case was once before this court and the cause was reversed and remanded for fuller development. Northwestern National Life Insurance Company v. Black, Tex.Civ.App., 362 S.W.2d 141, wr. ref., n. r. e. (1962). In the first trial of this cause the Arkansas statutes referred to in the Ordinance appointing Mr. Black to the Board of Public Utilities of Texarkana, Arkansas (B-810) were- not placed in evidence.

Ordinance B-810 of the City of Texar-kana, Arkansas, was introduced in evidence in the first of trial in this cause and also in the second trial. We quote the following excerpt from said ordinance:

“Section 13. That there is hereby created a water and sewer committee, to be known as the ‘Board of Public Utilities’ of said City, to have and exercise the powers and perform the duties as by Section 9978, 9979, 10022, 10023, and 10024 of Pope’s Digest of the Statutes of Arkansas provided the initial members of which shall consist of: Earl C. Black, Roy W. Davis, M. C. Jacobson.
“All such powers exercised and duties performed by said Board of Public Utilities shall be prescribed by ordinance or resolution of the Council of said City subject to applicable laws and the covenants and undertakings on behalf of said City as set forth in this ordinance.”

The Arkansas statutes referred to in said ordinance were placed in evidence in the second trial from which this appeal results.

The Boards of Public Utilities of the Cities of Texarkana, Arkansas, and Tex-arkana, Texas, operated the water and sewer systems of the adjoining municipalities under the name of Texarkana Water & Sewer Systems. The Boards of the respective cities met jointly and Mr. Black served as Chairman of the group at one time. The Board laid down operating policy, recommended rates to the Council, etc. Management of operations was the prerogative of the general manager, under him the office manager was authorized to direct office personnel and procedure. The Board employees were classified and their hours of employment and rates of pay were specially scheduled. Of these employees, possibly excepting the general manager and office manager or casual labor hired on an hourly basis, all classifications were on a forty hour week basis, and considered ’ full-time employees. Board members were not in-eluded in any classification of employees maintained by the Board, and were not subject to the direction of any of the admitted employees of the Board or system. No withholding taxes were taken from the $20.00 per month compensation of Mr. Black or of any of the other Board members.

The above referred to ordinance of the City of Texarkana, Arkansas, appointed Mr. Black as a member of the Board of Public Utilities of the City of Texarkana, Arkansas. The ordinance and the Arkansas statutes referred to therein, all introduced in evidence on the second trial from which this appeal arises, as well as all the evidence adduced, have been carefully examined and considered, and it is held that Mr. Black occupied, at all times pertinent hereto, the status of a public officer and was neither an employee nor a full-time employee.

The proper rule of construction to he applied in this cause to determine the meaning of the terms “employee” and “full-time employee” is the rule that language used in insurance policies is given its usual and popular meaning unless it is ambiguous or it is shown that the parties intended it to have a special meaning. Insurance 32 Tex. Jur. (2) 115, Sec. 57.

Public officer has been variously defined, and in 67 C.J.S. Officers § 2, pp. 101-102, the term is referred to:

“ * * * an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises the functions concerning the public assigned to him by law; a person whose duty it is to perform an agency for the state; an officer who discharges any duty in the discharge of which the public is interested or who is invested with the authority and is required to perform.the duties of a public office; one who has some duty to perform concerning the public.”

Knox et al. v. Johnson, Tex.Civ.App., 141 S.W.2d 698, writ refused (1940), in discussing the definition of a public officer cites with approval-the rule laid down in 53 A.L.R. 595, as follows:

“ 'It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent ; while a public employment, on the--other hand,.is a position which lacks one or more of the foregoing elements. ”

The rule laid down in 53 A.L.R. 595 is also in harmony with the definition of-¡a public officer given by the Supreme Court of Texas in Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900).

The determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the public largely independent of the control of others. Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578 (1955).

An employee is one who works for an employer; a person working for a salary or a wage. The word is applied to anyone so working, but usually only to clerks, workmen, laborers, etc., and but rarely, to officers of a government or corporation. United States v. Schlierholz, D.C., 137 F. 616, 624.

The relation of employer and employee is contractual. Mercury Life & Health Company v. DeLeon, Tex.Civ.App., 3.14 S.W.2d 402, wr. ref., n. r. e. (1958)! It may be oral or written, express or implied. C. C. Slaughter Cattle Company v. Pas-trana, Tex.Civ.App., 217 S.W. 749, wr. dism. (1920). The words “servant” and “employee” are in most cases practically synonymous. Texas Life Insurance Company v. Roberts, 55 Tex.Civ.App. 217, 119 S.W. 926, no writ, (1909). Also the word “employee” in its general significance is governed by the. same rules whether a claim lies within the field of common law liability or arises.out of the Workmen’s Compensation Statutes. See Harris v. Cochran et al., Tex. Civ.App., 288 S.W.2d 814, wr. ref., n. r. e. (1956), wherein it was also stated:

“A servant is'a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.”

In Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449, 451 (1931), (a workmen’s compensation case), it was stated' in part as follows:

“To constitute one an employee *. .there must exist between the parties the relation of master and servant.in the broad sense that the one has fRe,, right pf. ultimate control and direction over the other. •
“The relation of master and servant exists, where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be' done. Shannon v. Western Indemnity Co. (Tex.Com.App.) 257 S.W. 522, 523; Wallace v. S. C. O. [Southern Cotton Oil] Co., 91 Tex. 18, 40 S.W. 399; Southern Surety Co. v. Shoemake (Tex.Com.App.) 24 S.W.2d 7.”

Under the evidence the Texarkana Water & Sewer Systems did not control Mr. Black; instead the Board of which Mr. Black was a member and for some time the Chairman, was in ultimate control of the

Systems. Mr. Black’s physical conduct, as a Board member and Chairman, was not controlled by the Texarkana Water & Sewer Systems. One of the functions of the Board, as the governing body of the systems, was to make contracts of employment. Mr. Black could not at the same time be both an employer and an employee, as it takes two parties to make a contract of hiring. Southern Surety Company v. Inabnit et al., Tex.Com.App., 119 Tex. 67, 24 S.W.2d 375 (1930). Mr. Black, of course, was not hired by the Systems; he was appointed by a City Ordinance as a member of the Board which governed the Systems.

It is clear that the function performed by Mr. Black was exercised by him for the benefit of the public, and his exercise of that function was largely independent of the control of others, except that of course he worked in cooperation with the other Board members. Certainly to the extent that the ordinance appointing Mr. Black to his office and the Arkansas statutes under which the ordinance was passed describe his duties and responsibilities as a Board member, such ordinance and statutes controlled Mr. Black’s performance of his duties as a member of the Board and as a public officer. Thus it seems clear that the Texarkana Water & Sewer Systems did not control Mr. Black, one of its governing public officers, and consequently, Mr. Black was not an employee of said systems.

It is held that there is no evidence of probative force to support any finding that Mr. Black was an employee of the Texarkana Water & Sewer Systems.

It is furthermore thought that if Mr. Black could in any event be held an employee, he was not a “full-time employee” of the Texarkana Water & Sewer Systems. Apart from the assumption that Mr. Black was “on call” twenty-four hours a day, it is not seriously contended that the work done or the duties performed by him employed his full time. The fact is the Board met regularly once a month with two or three meetings in addition. Neither the evidence nor reasonable inferences and deductions therefrom proves that Mr. Black devoted more than a small portion of his time to the performance of Board duties. The concept of being “on call” twenty-four hours daily confuses responsibility as a Board member with the daily performance of a Board member’s duties. Membership on the Board carried with it a responsibility for operation of the system; this responsibility was continuous, existing at all times. However, responsibility and the willingness to assume it is quite different and a thing apart from actual employment. A Board member’s responsibility is always with him, but his duty to act in the discharge of his obligation as a Board member occurred only at the regular or called meetings of the Board. Using any adequate definition of the term “full-time employee”, the evidence, when given its most favorable meaning, does not show that Mr. Black was a full-time employee of the Systems.

The judgment of the trial court can not~beH;upportediípoír'tlrc"theories of waiver"" and estoppel.

In^the first place there is no evidence of probative force in the record to show that any statements that may have been made by the soliciting agent of appellant insurance company was to have been either authorized, known or ratified by the appellant insurance company. In this connection, see Traders & General Insurance Company v. Lange, Tex.Civ.App., 354 S.W.2d 178, wr. ref., n. r. e. (1962), and authorities cited therein, wherein it was stated in part as follows:

“Regardless of what Neil Cooper said, or did, there is no evidence in the record to show that his principal, the appellant insurance company, did any act or made any omission which would indicate that the principal knew about Cooper’s representations or acts, or ever ratified such acts, and under this record there is no pertinent act or omission traceable directly to the principal.”

In the second place, if Mr. Black was neither an “employee” nor a “full-time employee” he was not covered by the .basic terms of the policy, and to apply the doctrine of waiver and estoppel to the situation at bar would in effect make the contract of insurance cover a loss it never covered by its terms and would create a liability not created by the contract and never assumed by the appellant insurance company under the terms of the policy, and of course this .would not be correct. In this connection, see Washington National Insurance Company v. Craddock, Tex.Com.App., 130 Tex. 251, 109 S.W.2d 165 (1937), 113 A.L.R. 854, wherein it was further stated:

“ * * * In other words, by invok- , ing the doctrine of estoppel and waiver ( it is sought to bring into existence a contract not made by the parties, to ' create a liability contrary to the express provisions of the contract the parties did make.”

Also in this connection see Great American Reserve Insurance Company v. Mitchell, Tex.Civ.App., 335 S.W.2d 707, writ refused (1960) wherein it was stated in part as follows:

“Plaintiff’s claim and recovery run directly contrary to the settled Texas law of waiver and estoppel with respect to risks designated in an insurance, policy. Waiver and estoppel may operate to avoid a forfeiture of a policy, but they have consistently been denied operative force to change, re-write and enlarge the risks covered by a policy. In other words, waiver and estoppel can not create a new and different contract with respect to risks covered by the policy. This has been the settled law of Texas since the decision in Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113, A.L.R. 854. See also, Vaught v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 257 S.W.2d 445; Powell v. American Casualty & Life Co., Tex.Civ.App., 250 S.W.2d 744; Massachusetts Bonding & Insurance Co. v. Dallas Steam Laundry and Dye Works, Tex.Civ.App., 85 S.W.2d 937; C. E. Carnes & Co. v. Employers’ Liability Assur. Corporation, 5 Cir., 101 F.2d 739; 29 Am.Jur., Insurance, § 1135; 163 A.L.R. 691; 113 A.L.R. 857. In Hunter v. Jefferson Standard Life Insurance Co., 241 N.C. 593, 86 S.E.2d 78, the general rule is specifically applied to the continued acceptance of premiums after insured became overage under a policy risk. There was an acceptance of premiums for more than, four years after the policy termination date, yet the Court adhered to the general rule, citing a multitude of precedents.
‘No't-'Svery jurisdiction adheres to the rule followed in exas, though-it is the rule of the majority * * * The point, howevér, is ñok’an open one in Texas. * * *.
“The judgment is reversed and rendered that all relief he denied the plaintiff other than the recovery of premiums paid after the termination of the insurance.”

It is concluded that this case has now been fully developed and that there is no evidence of probative force in the record to support the jury’s findings upon the three special issues submitted to them; that. Mr. Black was neither an “employee” nor a “full-time employee” of Texarkana Water & Sewer Systems, and further that the judgment of the trial court can not.be supported on the theories of estoppel and waiver.

The judgment of the trial court is reversed-and judgment is here rendered that all relief be denied the plaintiff-appellee other than the recovery of premiums heretofore paid into the registry of the court by appellant.

Reversed and rendered.

DAVIS, Justice.

I dissent. This is a suit by plaintiff-ap-pellee, Vivian S. Black, against defendant-appellant, Northwestern Life Insurance Company on a certificate of life insurance insuring the life of E. C. Black. Appellant sold the Texarkana Water & Sewer Systems of Texarkana, Arkansas, Texas (hereinafter referred as Systems) a group life insurance policy insuring the employees. No one saw the group policy until after the death of E. C. Black. Prior to buying the group life policy from the appellant, the employees were insured under a group life policy with another company. The members of the committee of the B.oard of Public Utilities of the Systems (hereinafter referred to as the Committee) and the attorney were not insured. Appellant agreed to insure the Committee and the attorney; therefore, it was decided to purchase the group life policy from the appellant.

At the time they made the trade for the group life policy, an agent of the appellant had group enrollment cards that he submitted to each employee and the attorney, and then issued certificate of life insurance to each of them. E. C. Black signed a group enrollment card as an “employee”. The appellant offered the group enrollment cards in evidence without' 'any limitation whatsoever. There was no pleading of fraud or mistake, and the appellant is bound by every statement that is made by the enrollment card. Lock v. Morris et al., 287 S.W.2d 500, wr. ref., n. r. e.

. Appellee offered in evidence two requests for admissions, and the appellants’ admissions thereto, which read as follows;

“REQUEST NO. 19. ‘That during the period of October 15, 1956, until after January 24, 1960, the date of the advised death of E. C. Black, the defendant never at any time questioned the fact that the said E. C. Black was an employee of the Texarkana Water Sewer Systems and insured as such employee under said Group Policy No. GL-2699 and Certificate No. 7 issued thereunder.
“DEFENDANTS ANSWER: ‘Defendant admits the facts stated in Request No. 19.
“REQUEST NO. 20. ‘That during the period of October 15, 1956, until after January 24, 1960, the advised date of death of E. C. Black, the defendant never at any time questioned the fact that any member of the Board of Directors of the Texarkana Water & Sewer Systems, or the attorney for same, to whom defendant issued certificates of life insurance under its Group Policy No. GL-2699, were employees of the Texarkana Water & Sewer Systems and insured under said Group Policy No. GL-2699.
“DEFENDANTS ANSWER: ‘Defendant admits the facts stated in Request No. 20.’ ”

The case was tried before a jury. The jury found that E. C. Black was a “full-time employee”. Under the record in the case, there was no need to submit any such issue because of the certificate of life insurance that was issued to Mr. Black on the date the group life policy was apparently issued. The jury found that the. appellant accepted the premiums on the certificate of life insurance with the knowledge, of the type and character of Mr. Black’s employment. The jury further found that Mr. Black relied upon the acceptance of the premiums and the acknowledgment on the part of the appellant that the certificate of life insurance was applicable to him. The evidence is sufficient to support such findings. Appellant admitted in the trial of the case that it had accepted the premiums for three years and three months, (until Mr. Black’s death), and there was no need to submit such an issue.

Appellant did not file a motion for new trial. It did, however, file a motion for judgment notwithstanding the jury verdict. Appellant brings forward 16 points of error. In the points of error, it takes the position that Mr. Black was not a “full-time employee”. The appellee brings forward a cross-assignment of error in which she says the appellant waived any right to cancel the policy and was estopped to assert that Mr. Black was not an insured employee. Under the evidence in the case, Mr. Black was insured under the certificate of life insurance. There is no evidence in the record that E. C. Black ever saw the group life policy. He was issued a certificate of life insurance in which he was insured as an employee. The attorney for the Systems did not see the group life policy until after the death of Mr. Black, which was apparently the first time anyone ever saw the provision of the group life policy.

E. C. Black died January 24, I960. Appellant issued the notice of, cancellation as of February 1, 1960, after the loss had occurred. 32 T.J.2d 167-169, Secs. 87, 88, and 89. Mr. Black was led to believe that he had a valid certificate of life insurance. They had paid the monthly premiums for three years and three months. It was stipulated that the payments were made and-accepted. They did not attempt to deny that they had issued 'the life insurance certificate, but they are denying liability on the group policy. Having admitted that they issued the certificate of life insurance and received the premiums they can not now deny liability thereunder. Georgia Casualty Co. v. Ginn, Tex.Civ.'App;, 272 S.W. 601, di'sm., w. o. j. Sinces the appellee retained the policy for several years and paid the premiums thereon the certificate of life insurance was binding on the insurer. 32 T.J.2d 61, Sec. 26; Sublett v. World Ins. Co., Tex.Civ.App., 224 S.W.2d 288, n. w. h.

It seems that there is a slight difference between “waiver” and “estoppel”. A waiver is stated to be the intentional relinquishment of a known right requiring a consideration. Estoppel is considered to arise from a course of conduct lulling the insured into a false security. However, such would be the case under the certificate of life insurance that was issued by the agent to Mr. Black and which he paid a valid consideration for, for 3 years and 3 months. 29 A.L.R.2d 636-654; 29 Am.Juris. 975, Sec. 1921; 1 Appleman Insurance Law and Practice, p. 44, Sec. 46; 32 T.J.2d 408-416, Secs. 243-246; Springfield Fire & Marine Ins. Co. v. Brown, Tex.Civ.App., 13 S.W.2d 916, N.W. H.; Austin Fire Ins. Co. v. Polemanakos, Tex.Com.App., 207 S.W. 922; The Maccabees v. Helton, et al., Tex.Civ.App., 70 S.W. 2d 354, E.R.; Southern Underwriters v. Jones, Tex.Civ.App., 13 S.W.2d 435, E.R.

An employee in a group life policy is construed in a different manner than under Workmen’s Compensation law, or labor law. Employment is defined as “ ‘Employment’ means act of employing, state of being employed, that which engages or occupies, that which consumes time or attention, office or post of business, service, or occupation”. (Emphasis added). Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899.'

It is hard to understand how the majority hold that Mr. Black was not an employee or a full-time employee of the Systems. He was appointed on the Committee as an employee, with the right to be removed “with or without cause”. Under the appointment, Mr. Black was paid a monthly salary by the Systems. The Committee had a regular monthly meeting, many called meetings, and Mr. Black went to the office almost every day to sign checks. He was on call twenty-four hours per day. He was as much an employee of the Systems as the President of a bank is an employee of the bank. He was as much an employee of the Systems as a school superintendent of an independent School district is an employee of the school district. He was as certain an employee of the Systems as a man by the name of Worth-man was an employee of Northwestern Fuel Company as cited in Equitable Life Assur. Soc. of United States v. Worthman, 7 Cin, 67 F.2d 721. In that case, ‘Mr. Worthman was an assistant superintendent. The issue before the court and the jury was whether or not Mr. Worthman was a full-time ■ employee, for full pay, from July 1, 1930, to Sept. 16, 1930.

The evidence showed that he did not do any labor at all, but in his position as Assistant Superintendent he directed the employees in doing their work. He did not go to the office but remained at home. He was visited by various employees who took up the matter of the employer’s business. He was subject to call at any time. The court had this to say:

“In the case of such an employee, what might reasonably be considered as full-time service depends largely upon the relations and transactions between employer and employee. It is not essential to full-time employment that such an employee be regularly and continuously at a particular place, such as the employer’s office. He might at his own home render such advisory and supervisory service as is deemed by the employer to be, and in fact was, a full-time service for the time being. This could have been by conference and consultation with other officers of the em-' ployer, and to the employer’s entire satisfaction. In this connection, and as bearing on the quantum of the service rendered, the jury may have considered the fact that, during all the time in question, the employer saw fit regularly to pay Worthman his full salary.” (Emphasis added).

Mr. Black drew his full salary during the entire life of the Group Policy, and the certificate of life insurance.

A full-time employee is. described in Bak-kensen v. John Hancock Mutual Life Insurance. Company, 222 Or. 484, 353 P.2d 558, as follows:

“Since only full-time employees were eligible for insurance if covered by a union agreement and since plaintiff was subject to such an agreement, we now consider the question of whether or not plaintiff was a full-time employee. ■ It appears that plaintiff was at all times required to be available for work even though his services might not be required. In the case of Harlan v. Washington Nat. Ins. Co., 388 Pa. 88, 130 A. 2d 140, 143, wherein the question was whether or not a seasonal or transitory employee was a full-time employee within the meaning of that term as contained in a group policy of life insurance, it was stated:
“ ‘Full time employment does not mean full time pay. It means being available for full employment; and full employment does not mean a hand at the helm throughout the entire voyage; it means standing by to take over when the exigencies of the passage required the application of one’s skill acquired over many journeys of the past.’
“We adopt this definition with reference to this case and, therefore, hold that since plaintiff was' required to be available for work during the whole •term of his employment, he was in fact a full-time employee.”

In deciding whether Bakkensen was a full-time employee under the terms of the policy the court went on to say:

“It is our opinion that the term ‘schedule’ was used here in the sense that it referred to projected operations. By that we mean not what he did do but what he was required, to do under his contract of employment.” (Emphasis added)

In 1 Appleman, Insurance Law and Practice, pp. 41-42, Sec. 44, we find the following : “It has been held, however, that a man need not be physically present at the usual place or times of employment in order to qualify; that if he is subject to call or duty at all times and receives his full pay, he remains a proper person insured.” Thompson v. Pacific Mills, 141 S.C. 303, 139 S.E. 619, 55 A.L.R. 1237.

According to the evidence in the case, Mr. Black was an employee of the Systems, and did everything that was required of him under the contract of employment. Harlan v. Washington National Ins. Co., 388 Pa. 88, 130 A.2d 140.

The following is copied in this opinion for the purpose of showing that the City Council of Texarkana, Arkansas, intended to employ E. C. Black as an employee of the Systems. And to further show that they could remove him, with or without cause. As a matter of fact, all of thfe Ordinances and statutes were offered in evidence by the appellant. The adoption of the rules and regulations were offered in evidence by the appellee. Appellant offered in evidence the following resolution:

“ORDINANCE No. B-810
“AN ORDINANCE granting to the Board of Public Utilities authority for control and management of the municipal water system, and amending' Section 13 of the Ordinance, dated July 14, 1948, providing for the purchasing of the water works system of the City of Texarkana, Arkansas, and the issuance' of revenue bonds.
i¡c J-fi s}c ‡
“BE IT AND IT IS HEREBY ORDAINED by the City .Council of the City of Texarkana, Arkansas, that Section 13 of the Ordinance dated the 14th day of July, 1948, and providing for the purchasing of the water works system and the improvement, enlargement, betterment and extension of said water works system and the existing municipal sewer system and for the .issuance of the revenue bonds shall be and is amended to read as follows:
‘Section 13. That there is hereby created a water and sewer committee, to be known as the “Board of Public Utilities” of said city, to have and exercise the powers and perform the duties as by Sec. 9978, 9979, 10022, 10023 and 10024 of Pope’s Digest of the Statutes of Arkansas provided the initial members -of which shall consist of: Earl C. Black, Roy W. Davis, M. C. Jacobson.
“ ‘All such powers exercised and duties performed by said Board of Public Utilities shall be prescribed by ordinance or resolution of the Council of said City subject to applicable laws and the'covenants and undertakings on behalf of said City as set forth in this ordinance.’
. “It is hereby ascertained and declared that the Board of Public Utilities be and is vested with these additional powers set out herein in the management of the municipal water works in order to preserve the health and welfare of the inhabitants of said City, and it is .therefore declared that an emergency exists requiring this ordinance to take effect and be in force from and after its adoption for the preservation of the public peace, health and safety, and it is so ordained.”

Appellant offered in evidence an “Appointment of Sewer Committee- — Removal —Vacancies”, which reads as follows:

“The construction, acquisition, improvement, equipment, custody, operation and maintenance of any such works for the collection, treatment or disposal of sewage and the collection of revenue therefrom for the sei'vice rendered thereby, shall be effected and supervised by a Committee to be designated for such purpose by the Municipal Council; which Committee, however, will act under the control of the Council to such extent as may be provided in the ordinance or resolution appointing' the Committee. The Council may remove any member of said Committee with or without cause and may •appoint any substitute members in case -of death, removal or resignation. Said -Committee will hereafter be called the Sewer Committee. The Council may appoint one Sewer Committee to handle all municipal sewer projects, or it may entrust each project to a separate committee.”

Appellant then offered in evidence the “Duties and Power of Sewer committee,” which reads as follows:

“The Sewer Committee shall have power to take all steps and proceedings and to make and enter into all contracts or agreements necessary or incidental to the performance of its duties and the execution of its powers under this act (Sections 19-4101 — 19-4122); provided, that any contract relating to the financing of the acquisition or construction of -any such works, or any trust indenture as hereinafter provided for, shall be approved by the Municipal Council before the same shall be effective. The Sewer Committee may employ engineers, architects, inspectors, superintendent, manager, collectors, attorneys, and such other employees as in its judgment may be necessary in the execution of its powers and duties, and may fix their compensation, all of whom shall do such work as the Committee shall direct. All such compensation and all expenses and liabilities incurred in carrying out the provisions of this act shall be paid solely from funds provided under the authority of this act, and the Sewer Committee shall not exercise or carry out any authority or power herein given it so as to bind said Sewer -Committee or said city or town beyond the extent to which money shall have been or may be provided under the authority of this act. No contract or agreement with any contractor or contractors 'for labor and/or material, exceeding in amount the sum of one thousand dollars ($1,000.00), shall be made without advertising for bids, which bids shall be; publicly opened and award made to the best bid.der, with power in the Sewer Committee to reject any or all bids. After the construction, installation, and completion -of the works or the acquisition thereof, the Sewer Committee shall operate, manage and control the same and may order and complete any extensions, bet-terments and improvements of and to the works that it may deem expedient, if funds therefor be available or are made available as provided in this act, and shall establish rules and regulations for the use and operation of the works, and of other sewers and drains connected therewith so far as they may effect the operation of such works, and do all things necessary or expedient for the successful operation thereof. All public ways or public works damaged or destroyed by the Sewer Committee in carrying out its authority under this act shall be restored or repaired by the Committee and placed in their original condition, as nearly as practicable, if requested so to do by proper authority, out of funds provided by this Act.”

Appellant offered in evidence “Authority of Commissioners to Operate and Manage Waterworks System”, which reads as follows:

“The commissioners hereinunder appointed shall have full and complete authority to manage, operate, improve, extend, and maintain the municipal waterworks and distribution system, and shall have full and complete charge of said plant, including the right to employ or remove any and all assistants and employees of whatsoever nature, kind or character and to fix, regulate and pay their salaries, it being the intention of this act (Sections 19-4219 — ■ 19-4244, 19-4226 — 19-4228) to vest in said commissioners unlimited authority to operate, manage, maintain, improve and extend said municipally owned waterworks and distribution system and to have full and complete charge thereof; provided, said commissioners -shall not have authority or power to sell, mortgage or encumber said waterworks and distribution system, unless the same be done in accordance with the provisions of Act. 131 of the Acts of 1933 (Sections 19-4201- — 19-4218) as amended, or when authorized by the mandate of an election called for the purposes (that purpose).”

Appellant offered in evidence “Further Powers of Commissioners — Donations to Community Chest and Charitable Organizations”, which reads as follows:

“The said commissioners shall in addition to the above enumerated powers, have such other and further powers as are now by law given to the Board of Public Affairs and the city council of any city, and they shall be governed by all existing statutes pertaining to the duties of boards of public affairs and city councils; and in addition, said commissioners shall be authorized to make donations of money from the revenue of municipal waterworks systems to local Community Chests, or other citywide non-sectarian, incorporated, charitable organizations.”

Appellee, then, offered the “Adoption of Rules and Regulations by Commissioners— Monthly Reports — Annual Audit”, which reads as follows:

“The Commissioners shall adopt such rules and regulations as they may deem necessary and expedient for the proper operation and management of said municipal waterworks and distributing system, and shall have authority to alter, change, or amend such rules and regulations at their discretion. They .shall submit monthly reports and annual audits of operations to the Mayor and City Council and furnish such other and further reports, data, and information as may be requested by the Mayor or City Council.”

According to Art. 3.50 of the Téxas Insurance Code, Vernon’s Ann;Civ/St.-Tex., any policy issued covers “ALL” of the employees of any employer, or “ALL” of any class or classification of employees. Under the certificate of life insurance that was issued to Mr. Black he was referred to as an employee, without any classification whatever. The group life policy'contains the following terms and definitions:

“ T. DEFINITION OF THE TERM “EMPLOYEES”:
“ ‘The term “employees” as used herein means all full-time employees employed and compensated by the employer.
“ ‘2. ELIGIBILITY OF EMPLOYEES :
“ ‘All present employees
are each eligible for insurance hereunder on the effective date hereof. AH ether- present employees and New employees shall be eligible for insurance hereunder on the 1st day of the policy month coinciding with or next follow-' ing the date of commencing continuous service with the employer.’ ” (Emphasis added)

The word “employees” as used in the certificate of life insurance that was issued by the agent of appellant to Mr. Black creates an ambiguity between the term “employees” and “eligibility of employees” as described in the group life policy. The life insurance certificate shows that appellant is insuring the employees of Texar-kana Water & Sewer Systems. Although it refers to the group policy, I will say again, that Mr. Black never saw the group policy, and he is not bound thereby.

Under the group policy, “All present employees are each eligible for insurance hereunder on the effective date hereof.” If the appellant is attempting to classify the employees to mean “all full-time employees”, and then take the position that “all present employees are each eligible for insurance”, whether they are employed full-time or part-time can not be so construed. The appellant then struck out the words “All other present employees and”, and left the group policy reading “New employees shall be eligible for insurance hereunder on the 1st day of the policy month coinciding with or next following the date of commencing continuous service with the employees.” Much has been written about ambiguity in insurance policies, but the law is so well settled that where there is an ambiguity, the contract must be construed against the insurer. Since the opinion and this dissent is quite lengthy, citation of authority is omitted.

I would overrule the points of error -and affirm the judgment of the trial court.


author: DENTON, Chief Justice.

text:
    Tom G. PURYEAR, Appellant, v. The RED RIVER AUTHORITY OF TEXAS, Appellee.
    No. 7405.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 19, 1964.
    Rehearing Denied Nov. 16, 1964.

      •Gene E. Steed, Perryton, for appellant.
    Anderson & Connell, Wichita Falls, for appellee.
   DENTON, Chief Justice.

Appellant, Tom G. Puryear, appealed from a summary judgment which permanently enjoined him from preventing appel-lee, The Red River Authority of Texas, from going onto appellant’s land in Wheeler County, Texas, and conducting core drilling tests. On October 8, 1963, appellee sought and obtained a temporary restraining order to restrain appellant’s interference with the core drilling operations which appellee sought to undertake in order to determine the feasibility of locating a dam on Sweet-water Creek. By agreement, no temporary injunction was issued, and the case was heard on its merits which resulted in the trial court entering a summary judgment permanently enjoining appellant.

Although appellant brings forward twelve points of error, the controlling question to he decided is whether appellee is authorized under the law to enter upon appellant’s property for the purpose of conducting core drilling tests to determine a feasible location for a dam site on Sweetwater Creek. The validity of the permanent injunction issued by the trial court depends on the determination of this controlling question.

The Red River Authority of Texas was created by Article 8280-228, V.A.T.S., as authorized by Article XVI, Section 59 of the Constitution of the State of Texas, Vernon’s Ann,St.. The creating act specifically established the Authority to be a governmental agency of the State and a body politic. The act in setting out the Authority’s duties and powers provides it shall "provide through all practical and legal means for the control, conservation and orderly development of the watershed and water of the Red River and its Texas tributaries” and “[i]t shall be the duty of the Authority to prepare a master plan, for the maximum development of the soil and water resources * * Article XVI, Section 59 of the Texas Constitution authorizes the creation of such conservation and reclamation districts. Such districts constitute political subdivisions of the State and operate as a governmental agency performing governmental functions. Karling v. Lower Colorado River Authority, (Tex.Civ.App.), 303 S.W.2d 495 (Refused, NRE) ; Lewis v. San Antonio River Authority, (Tex.Civ.App.), 343 S.W.2d 475, affirmed, Tex., 363 S.W.2d 444. The appellee Authority is vested with the right of eminent domain. Article 8280-228, Section 18, V.A.T.S., and Section 31 of the same act vests appellee "with all of the rights, powers and privileges conferred by the general laws of this state now in effect or hereafter enacted, applicable to water control and improvement districts created under authority of Section 59, Article XVI of the Constitution.” Article 7880-49, V.A.T.S., governing water control and • improvement districts provides:

“Entry on lands
“The directors, employees and engineers of a district shall have authority to go upon any lands for the purpose of making surveys for reservoirs, canals, rights of way, dams, or other contemplated improvements and to attend to any business of the district, whether such lands are situated in the district or outside of such district.”

Article 8280-11 grants this same power to appellee as' follows:

“Directors, employees and engineers of districts and authorities; entry upon lands
“The directors, employees and engineers of any district or authority created by Act of the Legislature of the State of Texas, under Article XVI Section 59 of the Constitution, and having the power to provide a water supply for municipal or other uses, shall have the same authority as is conferred upon the directors, employees and engineers of water control and improvement districts by Section 49, of Chapter 25, Acts of the 39th Legislature with reference to making surveys and attending to other business of such district or authority.”

It is thus evident appellee has the clear statutory authority to enter upon appellant’s land for the purposes of making surveys relative to contemplated improvements by the Authority. The power of appellee to construct reservoirs or dams cannot be questioned. The question narrows itself to whether or not appellee’s right to enter upon appellant’s land and conduct “surveys” includes the right to conduct core drilling operations. We con-•elude that it does. The construction of a dam is essential to carrying out one of the Authority’s basic functions, to-wit: “the control, conservation and orderly development of the watershed and water of the Red River and its Texas tributaries.” To permit appellee the right to enter land and make surveys but deny it the right to conduct core drilling to determine the feasibility of locating a dam would be contrary to the clear intention of the Legislature. Surveying, without the right to test the underground stratum would be of little value to water control districts. Core drilling to determine the underground stratum is an essential step in determining the location of proposed dams.

We cannot agree with appellant’s contention appellee’s entry upon appellant’s land and conducting core drilling without consent therefor amounts to a “taking” in violation of Article I, Section 17 of the Constitution of Texas. Our courts have drawn a distinction between the taking of property within the meaning of the constitutional provisions and the damaging of property. Tarrent County Water Control & Improvement District v. Reid, (Tex.Civ.App.), 203 S.W.2d 290, (NRE) ; Webb v. Dameron, (Tex.Civ.App.), 219 S.W.2d 581, (NRE). We conclude the contemplated entry and core drilling is not a taking of appellant’s property as contemplated by Article I, Section 17 of the Texas Constitution.

We have not found or been cited to any Texas case directly in point, but •cases of other jurisdictions are - annotated in 29 A.L.R. 1409, where it is said:

“ ‘An entry on private property for the sole purpose of making the necessary explorations for location is not taking it; the right remains in the owner as fully as before; no permanent injury can be sustained; nothing is taken from him; * * * ’ ”.

See also 29 C.J.S. Eminent Domain § 226, ¿Page 1179. We conclude, and so hold, ap-'pellee was duly authorized to enter upon appellant’s land and conduct necessary core drilling operations. Unquestionably appel-lee would become liable for damages to appellant’s land by reason of such core drilling. Lewis v. Texas Power & Light Co., (Tex.Civ.App.), 276 S.W.2d 950, (NRE).

Appellant’s contention that the trial court erred in failing to require appellee to give security for the payment of damages which might be caused by its entry is also without merit. This is not a condemnation proceeding, and appellee’s entry and core drilling is not a “taking” as contemplated by the Constitution. We therefore conclude a money deposit of the estimated damages is not required. Lewis v. Texas Power & Light Co., Supra, and the authorities cited therein. See also McFaddin v. State, (Tex.Civ.App.), 373 S.W.2d 259, (NRE); and Kirschke v. City of Houston, (Tex.Civ.App.), 330 S.W.2d 629.

Appellant attacks the trial court’s jurisdiction due to the lack of necessary parties. This contention was made for the ' first time in appellant’s motion for new trial. His amended motion for new trial included an attached copy of an oil and gas lease showing other owners of the land here involved. Appellant’s contention was not timely and did not comply with Rule 37, Texas Rules of Civil Procedure. From this record appellant alone was in possession and control of the land in question. Sworn pleadings allege appellant himself denied appellee’s agents and employees entry upon the land. In the absence of a plea of nonjoinder of necessary parties we are not authorized to reverse the trial court’s judgment because of the lack of necessary parties. County School Trustees, etc. v. Edna Independent School District, (Tex.Civ.App.), 9 S.W.2d 506.

We have .carefully reviewed appellant’s points of error, and all points not discussed are overruled. The judgment of the trial court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    Cora Mae ALEXANDER, a feme sole, Appellant, v. Kenneth DAVIS d/b/a Bob’s 34th Street Super Store, et al., Appellees.
    No. 7396.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1964.
    Rehearing Denied Nov. 16, 1964.
    Splawn & Maner, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Brown & Shuman, Lubbock, Walker & Bishop, Day & Harris, Fort Worth, Burt Barr, Shelton W. Booth, Dallas, for appellees.
   CHAPMAN, Justice.

Cora Mae Alexander, appellant herein, brought suit in the court below against Kenneth Davis and others for damages resulting from illness she alleged ' was caused by eating green beans contaminated by a Salmonella-type bacteria and which were purchased at Bob’s 34th Street Super Store in the City of Lubbock. Plaintiff rested her case then under the court’s discretion reopened her case and placed Mr. Davis on the stand.as an adverse witness in an effort to prove the supplier of the beans to Bob’s 34th Street Super Store. Then after Mr. Davis was presented and questioned as an adverse witness, the court took the case away from the jury which had heard the testimony and rendered a take-nothing judgment. It is from such judgment that appeal is perfected to this court.

This procedure would constitute no more burden on appellee to sustain the judgment than if the court had rendered a judgment non obstante veredicto or an instructed verdict. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846.

The question thus presented is this: Was there some evidence of probative force to justify the submission to the jury of whether there were Salmonella-type bacteria on the green beans at the time they were purchased at Bob’s 34th Street Super Store such as to make them unfit for human consumption? A ca.reful study of the statement of facts has convinced us there is no more than a scintilla of evidence to justify a submission. It was the duty of the trial court to render a judgment for defendants below if the probative force of the testimony was so scant that it only raised a surmise or suspicion of the existence of the fact sought to be established. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Continental Cas. Co. v. Fountain, Tex.Civ.App., 257 S.W.2d 338 (writ refused).

The beans were purchased by Mrs. Sel-asky on April 11, 1961, more than twenty-four hours before they were cooked and served. Her daughter became ill at school the next day with vomiting and diarrhea. Mrs. Selasky warmed the beans over on the ■fourteenth or fifteenth and ate some more of them. She became ill with the same •symptoms as her daughter on the fifteenth or sixteenth. Mrs. Alexander did not become ill until the twentieth, eight days after she ate the beans. She did not eat any of them when they were warmed over.

Mr. Waits, the medical technician, testified that in his opinion the beans were contaminated at the time they were cooked. He was first asked in a hypothetical question if in his opinion they were contaminated at the time purchased. He answered in .the affirmative but later changed his. testimony to the effect that he had no opinion as to whether they were contaminated at the time of purchase. He also testified in effect that they could have become contaminated by a fly after they were purchased, by the hands of those who snapped them, by the pan they were cooked in, by the bowl they were placed in, or by the bacon or bacon grease with which they were seasoned.

Doctor Pennington testified there was no way to tell if the Salmonella-type bacteria on the slide , was pathogenic or non-pathogenic without doing a culture: The record is clear that no such culture was performed. He also testified that the- infection, such as Mrs. Alexander had, may be transmitted from one person to another by a handclasp, by use of the same bathroom facilities or by contact with other objects such as a pillow. It is also significant that he testified that if Salmonella-type infection comes from food it normally develops within six to twenty-four hours after consuming the food. As heretofore stated it was eight days from the time she consumed the food before Mrs. Alexander became ill.

Thus, the only evidence that Mrs. Alexander’s infection came from the green beans is very weak, circumstantial evidence and there is nothing more than a surmise that they contained the infection when they were purchased.

The general rule in Texas is that in the sale of products for immediate consumption by human beings, there is an implied warranty that the commodity is wholesome and is fit for the purpose for which it is sold. Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424; Jacob E. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479.

However, in an action on either express warranty or implied warranty the burden of proof is on the plaintiff to establish that the food sold and consumed did not at the time of sale conform to such warranty. Great Atlantic and Pacific Tea Company v. Adams, Maryland Court of Appeals (Court of Last Resort in Maryland) 213 Md. 521, 132 A.2d 485.

In the case just cited the Maryland court said:

“If the plaintiff’s own evidence shows two equally possibly causes, for one of which the defendant would not be responsible, he cannot recover.”

In Jacob E. Decker & Sons v. Capps, supra, our Supreme Court held that in the absence of a representation or contract to the contrary a manufacturer or vendor should not be held liable for defects caused by contamination or deterioration which occurred after the food has left his hands.

The evidence being just as strong that the contamination happened after the beans left appellee’s place of business as before, we are of the opinion that the trial court properly disposed of the case.

The other points raised relate to actions of the court in the trial having to do with the statements that allegedly influenced the jury. Since a jury did not decide the case, such points would be immaterial.

Accordingly, the judgment of the trial court is in all things affirmed.