text:
    Johnny Lee CLEMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 38675.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 9, 1966.

      Lewis L. Scott, Marshall, for appellant.
    Ralph Prince, Longview, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, death.

The prosecutrix Darlene testified that on the night in question she and her date, Jerry Stanford, drove to a rural section of Gregg County where they met her sister and two other young people, who were traveling in another automobile, and that the five listened to the radio and played on a “swinging” foot bridge. After half an hour or more, she and her date left, going toward town with her at the wheel. She stated that as they approached another bridge she saw what was later described as a five gallon can sitting in the middle of this one-way bridge, that she stopped the automobile and that Jerry went forward on foot to remove the can. She further stated that at this moment a shot was fired from the rear of the automobile which she was driving, and appellant entered the passenger side of the automobile, put a gun in her ribs, and said “Let’s get going”, but that she released the clutch too fast and the motor died, whereupon the appellant struck her over the face and head. She then stated that when she called for help, Jerry started back to the automobile and appellant “stuck the gun out the door”, shot Jerry in the chest, got out and threw Jerry over the bridge and that he and his companion then pulled her out of the automobile, dragged her through the weeds to a point where they forcibly disrobed her and each of them in turn ravished her. After this, one of them shot her in the head, the throat and ear and then left the scene.

Prosecutrix’ sister corroborated her account of the early part of the evening and testified that when they returned to the scene in search of prosecutrix and Jerry, they found Jerry sitting in the water below the bridge mumbling incoherently and subsequently found prosecutrix lying in a ditch disrobed and badly injured.

It was shown by medical testimony that prosecutrix had been shot four times in the head and neck and that she had been ravished and that Jerry had been shot in the chest and in the head, which latter wound caused extensive brain damage.

The following morning appellant’s brother-in-law was arrested in appellant’s presence, and later in the morning appellant was carried from his home to the Gladewater City jail. Some few hours later, while appellant was being transferred from the city jail to the Gregg County jail in Longview by Deputies Owen and Miller, the two stopped by appellant’s home where they recovered a bloody shirt from an aperture in the ceiling, some bloody pants and a pistol from which the barrel had been forcibly removed. It was the officers’ testimony that appellant voluntarily showed them where to find the articles. Appellant testified that he consented to their entry of his home because of threats made by the officers to take him to the river bottom and beat him.

Upon their arrival at Longview appellant was carried before Justice of the Peace Harrison in the courthouse where he was informed that he was charged with “attempt to murder” and that his bond was set in the sum of $10,000 in that case and was further informed that he was also charged with rape and that bond on such charge was “refused.” At this time Judge Harrison told appellant that he had a right to talk to a lawyer. This occurred late in the afternoon of the arrest. Appellant was not questioned again until 1:30 p. m. the following afternoon when he was carried into District Attorney’s Investigator Anderson’s office, which had a glass window looking out into the main corridor of the courthouse, where a written statement was taken wherein appellant admitted the shooting and the rape. In addition to the statutory warnings, the confession recites and Anderson testified that appellant was advised that he had the right to talk to a lawyer before making a statement and that he did not want to talk to one. After a hearing outside of the jury’s presence on the issue of voluntariness of the confession, the court made his independent finding that the same had been voluntarily given. Thereafter when such confession was offered and received in evidence, the court asked appellant’s counsel if he had any objection, to which he replied, “None, Your Honor.”

Appellant, testifying in his own behalf before the jury, admitted ownership of the shirt, pants and pistol. He stated that the blood thereon was squirrel or rabbit blood and admitted that he had gone home and removed the barrel from the pistol after he had seen the officers arrest his brother-in-law because he expected them to arrest him next. He testified, as shown above, concerning the threats made by the officers as they were leaving the Gladewater City jail and before reaching his home, but admitted that he reported no such threats to Judge Harrison or Investigator Anderson.

The State called Chemist Beardsley in rebuttal, and he testified that he had examined the shirt and pants in question and found human blood.

The voluntary nature of the confession was submitted to the jury in the court’s charge and by them decided adversely to appellant.

In appellant’s brief the following grounds for reversal are advanced. It is first contended that the court erred in failing to change the venue. His motion alleges that a great prejudice existed against him in Gregg County. We will list only a few of the reasons this contention cannot be sustained. There is no showing that the same was ever presented to or acted upon by the court. Tyler v. State, 163 Tex.Cr. R. 441, 293 S.W.2d 775. There is no record of any evidence to indicate that the allegation contained in the motion was true. Appellant did not exhaust all his challenges, and there is no showing that he was forced to accept any objectional juror. Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312. The affidavit in support of the motion was sworn to by appellant’s attorney, which this Court has uniformly held to be insufficient as a pleading. Luttrell v. State, 70 Tex. Cr.R. 183, 157 S.W. 157. The voir dire of the veniremen is not before us from which we might ascertain from their answers whether or not prejudice did in fact exist in the County and did in fact enter the jury box. Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661.

Appellant in his brief complains of the admission of the confession taken at a time when he was not represented by counsel. As stated, when the same was offered and admitted into evidence, the court asked counsel for appellant if he had any objection, to which he replied “None, Your Hon- or.” Appellant admits that Judge Harrison told him on the day of his arrest that he had a right to talk with a lawyer. If we properly comprehend his testimony, he said that the portion of the confession which he gave to Anderson which says, “I have been advised that I have the right to talk to a lawyer before making this statement and I do not, at this time, desire to talk with one” was typed into the statement after it was completed and appellant agreed to such insertion. Anderson testified that prior to the making of the statement, “I told him he had a right to talk to an attorney and that the telephone was available for him to call one. * * * ”

Appellant admits that on the day following the making of the statement he was carried before the District Judge, who asked, him if he had been “threatened to make a statement,” and that he had told him that he had not been.

Since appellant’s counsel stated that he had no objections to the introduction of the confession, it is not necessary to discuss the contention raised in his brief that his confession was taken at a time when he was not represented by counsel.

Appellant’s last contention is that the court erred in failing to continue the case some three to six months so that appellant might then secure the testimony of Jerry Stanford. We observe that the indictment which was served on appellant had endorsed on the back thereof the names of sixteen witnesses and that Stanford’s name did not appear thereon. No motion for continuance was filed prior to announcement. After the trial was in progress, appellant applied for a subpoena, and the same was served. This was the situation in Meredith v. State, 171 Tex.Cr.R. 359, 350 S.W.2d 550, 551, wherein it was held that diligence had not been shown. The witness was called and did not answer, and the court heard evidence on the question of whether he should issue an attachment. Stanford’s father testified that his son was recovering from a bullet wound in his brain, had not worked at all since he was shot, was under the constant attention of some member of the family, had no recollection of the incident and that he had been advised by his doctor that he should not be used as a witness.

Dr. Jones, the County Health Officer, testified that he had examined Jerry during the trial and all he could remember was that he had been shot around some water and expressed the opinion that Jerry was not mentally competent and that he would not be in a position to testify at any time in the foreseeable future. He further stated that if he were going to show improvement, he should show it within three to six months, but that he definitely and strongly urged that because of the boy’s condition he not be called upon to testify. Upon this testimony, the court refused to order an attachment, and we have concluded that no reversible error is reflected by his ruling.

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


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Rosa LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38994.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    No attorney of record on appeal for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The record has been perfected to show that no variance exists between the complaint and the information as to the date of the commission of the alleged offense.

Our prior opinion reversing the judgment of conviction is withdrawn and the following substituted:

The conviction is for the sale of beer in a dry area; the punishment, a fine of $300.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Porter Langston WELSH, Appellant, v. The STATE of Texas, Appellee.
    No. 39144.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.

      Pope & Heitler, by John E. Heitler, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for unlawfully carrying a pistol; the punishment, a fine of $200.

From a narrative statement of facts it is revealed that when the appellant passed two officers while he was driving an automobile upon a public highway at an excessive rate of speed, they pursued and stopped him; that he had the odor of alcohol about him and staggered; and that the officers found a loaded pistol on the front floorboard on the driver’s side of the car.

The appellant testified that Roscoe Mumphrey had previously told him that he was interested in purchasing a pistol; that he took the pistol, which he owned, from his home and carried it to the home of Mumphrey for the sole purpose of selling it; that after Mumphrey declined to purchase the pistol, he was returning it home by the usual and direct route when the officers stopped him and took possession of the pistol.

The testimony of Mumphrey corroborates that of the appellant.

The appellant timely and properly objected and reserved his exception to the failure of the court to submit his affirmative defense to the jury, that is that he took the pistol from his home to sell it to a certain person at his residence and was returning it to his home after failing to sell it.

The evidence raised the issue of a legitimate right of the appellant to take the pistol from the residence of the prospective purchaser by the direct way back to his home at the time the officers apprehended him. 61 Tex.Jur. (2) 58, Sec. 37; Jarrett v. State, 103 Tex.Cr.R. 447, 281 S.W. 872; Poston v. State, 132 Tex.Cr.R. 317, 104 S.W.2d 516.

For the error pointed out the judgment is reversed and remanded.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Roy Conrad KILES, Appellant, v. The STATE of Texas, Appellee.
    No. 39178.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.

      Paul W. Leech, Grand Prairie, for appellant.
    Henry Wade, Dist. Atty., Dallas, Scott Bradley, Charles Caperton and W. John Allison, Jr., Asst. Dist. Attys., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is carrying a pistol as denounced by Article 483, Vernon’s Ann.P.C.; the punishment, a fine of $300.00.

Trial was before the court without the intervention of a jury. The record reflects that appellant had lived at 1717 Bennett in the city of Dallas for seven years, that after he and his wife had a marital quarrel he went to North Caroliria for approximately ten days, and that on the day of his arrest he had returned home, unloaded five dogs, called his wife, who was at work, and made arrangements to talk about a reconciliation. After shaving and changing clothes at home, appellant picked up his wife and suggested that they go for a ride. During the course of this ride appellant brought his automobile to a halt on a deserted country road, and, as a highway patrolman passed, she ran to his patrol car and told him that appellant was armed. The patrolman found a pistol either on the front seat or on the front floor board and later found two other pistols in appellant’s automobile.

The trial court was justified in concluding that appellant’s journey had terminated when he reached 1717 Bennett and that appellant was not a bona fide traveler within the terms of Article 484 V.A.P.C. at the time of his arrest.

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


author: McDONALD, Presiding Judge.

text:
    David Willie WALTERS, Appellant, v. The STATE of Texas, Appellee.
    No. 37860.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.

      Louis S. Aselin, Houston, for appellant.
    Frank Briscoe, Dist. Atty., James C. Brough and W. Louis White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary with two prior convictions for felonies less than capital; the punishment, confinement for life in the Texas Department of Corrections.

We have before us a statement of facts filed with this Court on November 11, 1965, which is ten months after notice of appeal was given on September 28, 1964. The judgment was rendered on July 9, 1964. There were no extensions of time in which to file the statement of facts. It was approved by counsel for the state and the appellant, but the trial judge did not approve it. Under the law in effect on that date, the statement of facts is not before this Court for review. Art. 759a, Vernon’s Ann. C.C.P.; Mobley v. State, Tex.Cr. App., 366 S.W.2d 558; Hoskins v. State, Tex.Cr.App., 373 S.W.2d 248; Malek v. State, Tex.Cr.App., 385 S.W.2d 389. An appeal is governed by the law in effect on the date of judgment, Holdman v. State, Tex.Cr.App., 399 S.W.2d 361.

The contentions advanced by appellant’s counsel in his brief cannot be appraised in the absence of a statement of facts.

All proceedings appear to be regular. Nothing is presented for review.

The judgment is affirmed.


text:
    Victor PONCE, Appellant, v. The STATE of Texas, Appellee.
    No. 38895.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 16,1966.
    William Davenport, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, three and one-half years.

Appellant plead guilty and admitted his participation in the burglary and asked the jury to grant him a suspended sentence. The owner of the burglarized place of business testified, as did an officer, who chased appellant, until he abandoned his automobile wherein the stolen items were found. Appellant fled on foot and was arrested several months thereafter.

On appeal he contends that the only reason the jury did not grant him a suspended sentence was certain testimony of the officer which he contends was improper. At the time such testimony was given, no objection was interposed. It was within the province of the jury to reject his plea for the suspension of his sentence for any reason they might decide was proper. Garcia v. State, 128 Tex.Cr.R. 6, 79 S.W.2d 133.

Finding the evidence sufficient to support the plea of guilty and no reversible error appearing; the judgment is affirmed.


text:
    Leonard Alvin KUTEJ, Appellant, v. The STATE of Texas, Appellee.
    No. 39233.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $50.00 and four months in jail.

The record on appeal contains no statement of facts or bills of exception. The judgment recites appellant’s punishment to be by confinement in the county jail for a term of four months. From the record before us we here now reform and correct the judgment under the authority of Article 847, Vernon’s Ann.C.C.P. to comply with Articles 783 and 784, V.A.C.C.P., so that it will reflect the punishment as actually assessed by the jury, and show that appellant’s punishment was set at a fine of $50.00 and four months in the county jail and that he be remanded to the custody of the Sheriff, who will commit him forthwith to the Castro County Jail until said period of imprisonment has expired and thereafter until said fine and costs are fully paid. Combes v. State, 162 Tex.Cr.R. 482, 286 S.W.2d 949.

As reformed, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    John Oscar YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 38726.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Rehearing Denied Feb. 16, 1966.

      J. Paul Pomeroy, Jr., O’Brien Stevens, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Charles E. Bonney and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The conviction is for robbery with firearms; the punishment, death.

This is a companion case to that of Sellars v. State, Tex.Cr.App., 400 S.W;2d 559, and Hoover v. State, Tex.Cr.App., 390 S.W. 2d 758.

The facts relating to the robbery and the torture inflicted upon Mr. and Mrs. Schepps and their employee, Mrs. Tuck, are set out at length in the companion cases and need not be restated.

The appellant did not testify before the jury. His confession was introduced in evidence as State’s Exhibit No. 17. Omitting the statutory warning, it reads in part:

“Around March 5, 1964, I got some information that a bookie by the name of Scheppes lived on Memorial Drive in Houston and that he had $300,000 stashed in the House. For the next two or three nights, I went out to this place and looked it over. Sammy Spivey came by my house and I told him about it and he agreed to go with me on it and I called Calvin Sellers on the Telephone and he agreed to go with me on it. They went with me to look the place over. On March 11, 1964, I met Calvin Sellars at a drive-in on Main Street. Sammy Spivey was with me and we got into Calvin’s Red and White Mercury and drove out to this place. We parked on the street that runs alongside this house. We cut through some bushes and went to the side door. Sammy and I went in the side door and Calvin went to the Garage and got the other w man. When Sammy and me got upstairs, we through down on the woman and Scheppes and got them on the floor and tied them up with adhesive tape. We then started looking for the money. We found some money right away, but nothing like what we had heard would be there. I twisted the woman’s arm a little, but she wouldn’t tell me where the money was. Calvin came in with this other woman and we tied her up. Calvin took a lamp and jerked the cord from it and plugged the cord into the wall and shocked the woman some, but she still wouldn’t tell us where the money was. I was looking for the money and a lot of stuff went on in the room where they were at that I don’t know about. Sammy had a sawed off shotgun. I was carrying a .44 magnum and Calvin had an automatic. We were out at this house about an hour or an hour and a half. When we couldn’t find anymore money, we left. We went hack to my truck and rather to Sammy’s car and Sammy took me home and I went to sleep. I got about $1100 dollars for my part in. this * * *. The next morning, I went to Conroe, Texas, and I read in the papers up there about the robbery we had done and I decided that I had better get rid of my pistol. * * * I had a wool mask pulled over my face during this robbery. It was something like you get out of a Surplus Store. ⅜: * * When we got ready to leave this place, I thought this woman was going for something under the bed, so I shot her in the leg. I also shot another couple of times in the wall while I was there, trying to scare this woman into telling us where the money was. I owed Sam Hoover $1200 * * * and I give him the $1100 dollars I got out of this robbery ⅜ ⅛ *.
“While we were still in the house and we couldn’t find the money, I called Sam Hoover to find out what to do. I called him at GR-2-7700 and told him we couldn’t find the money and he said he would call back. In a few minutes he called back. He told me to look in the deep freeze. He said if it wasn’t in the deep freeze, to go ahead and leave. After talking to him, I went down to the kitchen and looked through the deep freeze, but there wasn’t any money there and thaij when we left. I ask — . Sam Hoover on the telephone whether we should leave the people tied up or not and he told me to go ahead and leave them tied up.
“Tonight, I was at the Turner Motel on Telephone road and the police came out and arrested me and brought me to the police station. I decided to tell them about what I had done and they asked me to make a statement, which I am doing now.
“I can read and write and I have read the above statement, which is mine, and it is true and correct to the best of my knowledge.”

Appellant’s first ground for reversal relates to the court’s failure to charge the jury that the witnesses .Roach and William J. Lyons were accomplice witnesses whose testimony required corroboration, or to submit to the jury the question of whether they were accomplice witnesses.

Lyons testified that in March, 1964, he came to Houston from his home in San Antonio at Sam Hoover’s request; that he saw the appellant in Hoover’s outer office; that after the appellant went into the inner office and after a time came out and left, he saw Hoover and had a conversation with him during which Hoover showed him a large diamond ring, a man’s ring- — and later showed him a woman’s broach or pin — “all yellow gold and had diamonds and pearls embedded in it and a flowery design.”

He further testified that subsequent to his return to San Antonio he was contacted by the City of Houston Police Department; that Hoover came to San Antonio the last day of May and that following a conversation with him he left the state, using money he got from Hoover.

An emerald-cut diamond, introduced in evidence as State’s Exhibit No. 31, found in the bottom dresser drawer of Sam Hoover’s bedroom on March 19, 1964, was identified by Mair Schepps as that taken from him during the robbery.

The record does not reflect that Lyons had been promised money with which to leave the state for the purpose of evading the giving of testimony against Hoover or his co-indictees.

Billy Roach testified that he saw appellant at his sister’s house, adjacent to the Lakeside Lounge, on or about March 14, 1964; that appellant asked him to keep “a sack of guns for him”; that he agreed upon condition that appellant give him one of the guns and he did. He identified the bag as similar to State’s Exhibit No. 27, and testified that it contained “a nail bar, a .44 Magnum, a sawed off shot gun, a .38 Chrome plated police revolver, a nine millimeter automatic that was a foreign made gUn * * Also there were dark blue masks—“white on the inside with some straps that looked like they would go around your head. I left them all in the sack and put them in a drawer in a back dresser. * * * My sister didn’t know they were in the house. Nobody knew it but he and I.”

He further testified that the Magnum (State’s Exhibit No. 28), the sawed off shot gun (State’s Exhibit No. 20), and the masks (State’s Exhibit No. 21) appeared to be those that were in the sack.

The sack or bag containing the guns and masks which appellant left with Billy Roach on March 14 were recovered in a search of the Lakeside Lounge on March 19.

Also there was evidence introduced by the state to the effect that the Magnum .44 was used by appellant in the Schepps robbery. Officer Hadley testified that he recovered from appellant’s pocket a spent hull from a .44 caliber bullet; Officer Hodges testified that he recovered two spent slugs from a .44 caliber revolver, one from the wall of the baby’s bedroom and one in the master bedroom of the Schepps residence. Officer Balsón gave expert testimony that these slugs were fired from the .44 Magnum identified as State’s Exhibit 28.

We do not construe the evidence as showing knowledge on the part of the witness Billy Roach or the witness Lyons that the robbery of Schepps had been committed or that Young or his co-indictees had committed such robbery.

We find no error in the court’s failure to charge or submit an issue as to whether witness Roach or Lyons was an accomplice. Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116, 118; Dent v. State, 43 Tex.Cr.R. 126, 65 S.W. 627, 630; Clark v. State, 159 Tex.Cr.R. 187, 261 S.W.2d 339.

Appellant next complains that the court erred in refusing to grant his motion, made prior to the trial and renewed during the trial, for the production of grand jury minutes.

There is no showing that any transcript of grand jury testimony was exhibited in the jury’s presence or used by any witness.

The court did not err in overruling such motions. Bryant v. State, Tex.Cr.App., 397 S.W.2d 445; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. denied, 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1524; Hanes v. State, 170 Tex.Cr.R. 394, 341 S.W. 2d 428; Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467; see also Pittsburg Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323.

Our holding that appellant was not entitled to inspection of the grand jury minutes disposes of his further contention that such minutes should have been sealed and made available so that same could be attached to his bill of exception.

The overruling of like motions for the production of “documents, statements, tests, examinations and evidence” before, during and after trial show no error, it appearing from the record that any previous written statement shown by the evidence to have been made by a witness who testified for the state was available and upon request was turned over to appellant’s counsel for cross-examination and possible use for impeachment purposes. Appellant was not denied inspection of any statement or document exhibited or used in the jury’s presence.

Appellant’s next complaint relates to the admission in evidence of his confession.

The evidence reflects that appellant was arrested on March 18, 1964, in a motel room about 1 o’clock A.M. He was taken to the police station, arriving there at approximately 2 o’clock A.M. After being warned by Officer B. K. Johnson as required by the statutes of Texas, appellant gave the statement to Officer Johnson which was introduced in evidence and the officer reduced it to writing. Appellant then read the statement and signed it in the presence of two witnesses.

Officer Johnson testified that the statement was completed and signed about 2:30 A.M., approximately 30 minutes after he first saw appellant at the police station.

Appellant was not taken before a magistrate prior to making the confession. At the time of his arrest he was not advised of his right to counsel and Officer Johnson did not advise him that he could consult an attorney. However, appellant at no time made any request for counsel.

The record shows no unreasonable delay in taking appellant before a magistrate between his arrest, about 1 o’clock A.M., and the signing of his confession about 2:30 A.M. Johnston v. State, No. 38,-181, Tex.Cr.App., 396 S.W.2d 404; Gilbert v. State, 126 Tex.Cr.R. 290, 284 S.W.2d 906; Childress v. State, 166 Tex.Cr.R. 95, 312 S.W.2d 247; Creswell v. State, Tex.Cr. App., 387 S.W.2d 887.

While the appellant’s testimony was to the effect that he was physically abused and threatened and his request to see Hoover, his lawyer, was denied, the trial court’s finding from the evidence adduced before him that the confession was voluntarily made is supported by the record. The contention that the trial court erred in permitting the introduction of the confession in that appellant was not advised of his right to counsel and was not taken before a magistrate and was denied due process of law is overruled. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 2 L.Ed.2d 977, is not deemed authority to the contrary.

Appellant’s next complaint relates to the refusal of his requested charge informing the jury as to the law of arrest upon a warrant and the duty of the officer, and instructing the jury to exclude the confession from their consideration unless they found that the law was complied with.

Consistent with our prior holdings in Gilbert v. State, 126 Tex.Cr.R. 290, 284 S.W.2d 906; Childress v. State, 166 Tex. Cr.R. 95, 312 S.W.2d 247; Creswell v. State, Tex.Cr.App., 387 S.W.2d 887; and the more recent case of Johnston v. State, No. 38,181, Tex.Cr.App., 396 S.W.2d 404, we find no error. The instruction given to the jury relating to the voluntariness of the confession, as suggested in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, was adequate.

Appellant’s point No. 8 relates to the admission of photographs depicting the scene of the robbery and torture which he says show “a bullet hole with blood.”

The photographs appear to have been admissible to show the details and scene of the robbery and the extent of the injuries to person and property. Beaver v. State, 148 Tex.Cr.R. 115, 184 S.W.2d 1020; Osborn v. State, 159 Tex.Cr.R. 323, 263 S.W.2d 263; LeMarr v. State, 165 Tex. Cr.R. 474, 308 S.W.2d 872.

If the photographs shown in the record reveal blood stains it is difficult to recognize them as such. We overrule appellant’s contention that inflammatory photographs were admitted in evidence for the sole purpose of inflaming the minds of the jury against appellant.

Appellant was arrested upon a warrant issued upon complaint charging him with robbery with firearms. The pomplaint was filed and warrant issued on March 17, 1964. The return on the warrant showed that it was returned executed on March 17, 1964.

The testimony of the arresting officers shows that appellant was arrested about 1 o’clock A.M. on March 18, 1964. Officer Hadley testified that he had the warrant in his possession and showed it to appellant.

After securing the warrant of arrest the officers went to the Turner Motel for the purpose of arresting appellant, arriving about 1 o’clock A.M. They obtained a key from the lady in charge, which was twisted off in an attempt to open the door, then went to a window of the room occupied by appellant and Officer Stephenson crawled in, disarmed appellant of a .38 caliber Derringer located under his pillow, and got him out of bed.

Called by the defendant in the hearing before the court, in the jury’s absence, Officer Hadley gave as reason why they did not knock before entering the room that they had knowledge of the type of person they were going to arrest; knew that he was the suspect of a brutal, vicious robbery and had other outstanding robbery cases against him; was a criminal; was armed and they didn’t want to awaken him and get someone killed.

It is apparent that the warrant of arrest had not been executed prior to the time appellant was gotten out of bed, disarmed of a .38 caliber Derringer located under his pillow, and taken to the police station. The fact that, the return showed that the warrant was executed on March 17, when in fact the arrest was made after midnight of that day, is not material on the question of the legality of the arrest.

We find no merit in the contention that appellant’s arrest was without a warrant and that the court erred in admitting in evidence the spent hull found in appellant’s pocket.

The remaining claim of error relates to the refusal of appellant’s requested charge relating to the law of arrest which would have instructed the jury to exclude from their consideration the hull found in appellant’s pocket introduced in evidence by the state as Exhibit No. 19.

This requested charge is identical with the refused charge which would have instructed the jury to exclude from consideration the confession if they found or had reasonable doubt that the officers did not comply with the law in making the arrest.

Our disposition of the appellant’s contention that the arrest and seizure were unlawful and his claim of error in the court’s failure to give a similar charge in connection with his confession disposes of this claim of error.

The evidence sustains the jury’s verdict and we find no reversible error.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    BITUMINOUS FIRE & MARINE INSURANCE COMPANY, Appellant, v. Frank JONES, Appellee.
    No. 154.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 6, 1966.
    Rehearing Denied Feb. 3, 1966.

      Vernon R. Berry, Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    R. W. Fairchild, Fairchild & Badders, Vernis Fulmer, Nacogdoches, for appellee.
   DUNAGAN, Chief Justice.

This is a workmen’s compensation case, tried before a jury. The jury in answer to Special Issues submitted by the trial court found general incapacity both temporary total and permanent partial on which findings judgment was entered by the trial court. The jury also found that the injury to the left hand did not extend to or affect the left shoulder, but found that the injury to the left hand extended to and affected the plaintiffs general health. Defendant’s amended motion for new trial was overruled from which this appeal results. The appellant has brought forward 27 Points in which it complains the trial court committed error. Appellant by its first 12 Points contends that the trial court erred in rendering judgment based on the jury’s answers to Special Issues Nos. 4, 7, 11 and 27: (1) because there is no evidence; (2) because the evidence is insufficient; (3) and because the jury’s findings on said issues are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

The jury found in response to Special Issue No. 4 that plaintiff, Frank Jones, sustained total incapacity as a natural result of the injury; to Special Issue No. 7 that Frank Jones sustained or will sustain partial incapacity as a natural result of the injury; to Special Issue No. 11 that the injury to Frank Jones’s left hand extended to and affected his general health thereby causing disability; and to Special Issue No. 27 that the average weekly wage earning capacity of plaintiff Jones during the period of partial loss of use of his left hand was $25.00 per week.

Frank Jones, the plaintiff in the court below, and appellee in this court, testified that on the occasion of his injury, he was standing on a table using with both hands an iron bar to pry loose a log which had hung in the splitter. The bar slipped out and he slipped and fell, hitting the “rack” hard with his left shoulder, left knee, left hand and arm. At first it sort of deadened his arm and hand. Then the left hand hurt. He worked on for about an hour and a half, and by that time his whole left hand was swollen and his left arm was hurting all up into his shoulder and neck. Ever since the injury there has been a bruise or discoloration on his left shoulder. He had no trouble before the injury with his left shoulder, the left side of his neck or his left arm and hand.

He was paid compensation benefits for five or six weeks. Then he drew unemployment compensation for thirteen weeks. During the five or six weeks he drew workmen’s compensation benefits and the thirteen weeks he drew unemployment benefits, he did no work.

He further testified that he had no way of supporting himself and his family except by working. That he has worked because he has had to work in order to eat. Working causes increased pain in his shoulder and neck. After the eighteen or nineteen weeks during which he drew workmen’s compensation benefits and unemployment compensation, he did perform some work.

He worked two or three days picking beans in which he used his right hand. He helped pull the head off a motor but he just used his right hand, not his left. He worked for a week in helping put a motor back into an automobile in which he used the left forefinger and thumb on his left hand when necessary. He did some welding also, but just used his right hand. There was other part-time work enumerated, but in all he only used his right hand.

He also testified that his left arm, left hand, left shoulder and his neck have never been free of pain since he fell. The pain in his arm, shoulder and neck is a sharp, nagging pain which stays there all of the time. The pain in his arm, hand, shoulder and neck got worse. There was nothing he could do to make a living that would not cause increased pain in his shoulder and neck. His left hand has been swollen ever since he got hurt and was swollen at the time of the trial. When he uses his left hand a lot, it swells even more. He can’t bend three of the fingers on the left hand; they are numb. He can work his thumb and forefinger on his left hand, and he tries to use them as much as he can, but he can’t grip anything with those two fingers and if he presses with them, it causes pain to go up his arm and into his shoulder and neck.

He testified further that before he sustained the injury, he weighed 138 pounds. Today he weighs only 120 pounds. He is' not as strong as he was, and he can’t get around like he used to; he is slower. His appetite is not too good; because of the pain, he does not sleep well at night.

The plaintiff Jones was corroborated by other witnesses in regard to him using his right hand when he was working and did not use his - left hand except perhaps to sometime steady an object or hold it in place.

Witness Alton Hicks testified that he was working for Norris Fence Company when Jones was injured. Before his injury, Jones appeared to work all right as a normal person. He was about four feet from Jones when he was hurt. Jones was trying to break a jam log loose from a saw with a bar. Jones was upon the table. The bar slipped and Jones fell against the machine. Jones hurt his hand, and the way he fell he had to strike the bar with his shoulder. That afternoon Jones complained of his hand, arm and shoulder. He could see Jones’s hand was swollen. Since his injury, he has asked Jones every time he has seen him about his condition, and Jones has shown him his hand, which on each occasion was still swollen, and Jones said his arm hurt him all the way to the shoulder. He has seen a bruised place on Jones’s shoulder. He does not remember whether it was the right or left shoulder.

Witness J. C. Matthews testified that Jones is not as heavy as he was a year and a half ago. He is not as active as he was then, either; he is slower. Within the last year and a half, he has called on Jones to do some mechanic work in a valve job on a Chevrolet. Jones used just one hand. He kept Jones on a part of a day and he paid him a couple of dollars just to give him something for the time he was there. He testified that Jones’s work was not satisfactory.

Appellee’s (Frank Jones) wife testified that Jones worked hard before he got hurt and she never knew him to complain before he got hurt of his left hand, left arm or neck, or to have sleepless nights or to take medicine.

The night of the day Jones got hurt while working for Norris Fence Company, she saw him when he got home. She saw a little spot of blood on the left shoulder of his shirt and when he took the shirt off, she saw a bruised place on his left shoulder and it wasn’t there before that day. Jones’s left hand was swollen and it has been ever since. She said Jones complained of pain in the left side of his neck and in his shoulder, left arm and left hand.

She further testified that Jones takes medicine every day all through the day. That she uses warm water and Epsom salt, alcohol rub and deep heat on Jones’s neck, shoulder, arm and hand. She does this every day and sometimes more than once a day. Jones’s left hand seems colder than his right hand. After Jones got hurt, he started losing weight.

Dr. Mahon testified that an injury can be serious and permanent without a fracture. Pain in any part of the body can, if long endured, affect a person’s general health and strength, interfere with his sleep and rest, and impair his appetite.

It has been held in this state that the factual testimony of the claimant alone, or other lay witnesses, will support a jury finding of total or partial incapacity, even though such lay testimony is contradicted by the testimony of medical experts. The Travelers Insurance Company v. Wade, 373 S.W.2d 881, (Tex.Civ.App.) 1963, writ refused, n. r. e.

It was the province of the jury, as the trier of the facts, to pass upon the credibility of witnesses and the weight to be given their testimony. The jury had a right, and apparently exercised it, to reject the testimony of appellant and give credence to that given by the witnesses for appellee. Martin v. J. S. Hunt Lumber Co., 180 S.W.2d 956, (Tex.Civ.App.) 1944, n. w. h.; Schwab v. Stewart, 387 S.W.2d 939, (Tex.Civ.App.) 1965, writ refused, n. r. e.; 390 S.W.2d 752.

We think the evidence in this case is sufficient to support the jury’s findings to Special Issues 4, 7, 11 and 27 and accordingly appellant’s Points 1-12 are overruled.

In considering appellant’s contention that the jury’s answers to Special Issues 4, 7,11 and 27 were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust requires us to weigh and consider all the evidence in the case and set aside the verdict and remand the cause for a new trial if we consider the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have studied the statement of facts carefully and we cannot say in applying the rules just announced that the jury’s answers to these issues were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant alleges in Points 13 and 14: (1) the trial court erred in rendering judgment based upon the jury’s answers to Special Issue No. 4 which found that the plaintiff sustained total incapacity and Special Issue No. 7 which found that the plaintiff sustained partial incapacity to his body generally because there is a fatal conflict between the jury’s answers to Special Issues Nos. 4 and 7 and the jury’s answer to Special Issue No. 10 wherein the jury found that the injury to the plaintiff’s left hand did not extend to and affect the plaintiff’s left shoulder producing disability; (2) the trial court erred in rendering judgment based upon the jury finding in answer to Special Issues Nos. 4 and 7 finding incapacity to the body generally which answers are in conformity with the jury’s answer to Special Issue No. 11 whereby the jury found the injury to the left hand extended to and affected the general health of the plaintiff, but which answers are in fatal conflict with the jury’s finding in answer to Special Issue No. 10 that the injury to the left hand did not extend to and affect the plaintiff’s left shoulder thereby producing disability.

We have heretofore found that the finding of the jury in response to Special Issue No. 11 that the injury to Jones’s left hand extended to or affected the general health, thereby causing disability is supported by ample evidence and is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. This finding affords, therefore, an additional basis for the findings of general, total and partial incapacity in Issues 4 and 7. There is no irreconcilable conflict in the jury’s finding to Special Issues Nos. 10 and 11.

It is settled that any apparent conflict in a jury’s answer to Special Issues submitted to them must be reconciled, if this can reasonably be done in the light of the facts in the particular case, the pleadings, the evidence, the manner in which the issues were submitted, and in view of the other finding when considered as a whole. State Nat. Bank of Houston v. Woodfin, 146 S.W.2d 284, (Tex.Civ.App.) 1940, err. ref.; Walker v. Houston Electric Co., 155 S.W.2d 973, (Tex.Civ.App.) 1941, err. ref.; Thompson v. Railway Express Agency, 206 S.W.2d 134, (Tex.Civ.App.) 1947, writ refused, n. r. e.

Applying this rule, the finding of the jury to Issue 11, under the evidence, must be deemed to reflect the jury’s view that the injury to Jones’s left hand affected his general health, thereby causing disability through the effect of the constant pain in the left hand upon his general nervous system, which in turn caused sleeplessness, loss of appetite, loss of weight, and loss of strength, such effect upon his body generally producing disability.

Issues 10 and 11 are not irreconcilable conflict under the test of Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. The inconsistency, if there is one, is not material. If we disregard the answer to Issue No. 10, plaintiff is entitled to a judgment for a general injury; and if we then disregard the answer to Issue No. 11, plaintiff is still entitled to a judgment for general injury under Issues 1, 4 and 7. There is no fatal conflict. See also Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772.

Appellant next complains in Points 15 and 16: (1) the trial court erred in rendering judgment based upon the jury’s findings on Special Issues Nos. 7, 8 and 9 wherein the jury found that the plaintiff sustained partial incapacity to his body generally, that it commenced on January 1, 1963, and that its duration was permanent because there is no finding by the jury of any wage earning incapacity on the part of plaintiff during such period of partial incapacity; and (2) the trial court erred in rendering judgment based on the jury’s finding to Special Issue No. 27 wherein the jury found that the average weekly wage earning capacity of plaintiff during the period of partial loss of use of his left hand was $25.00 per week, because the jury’s finding with regard to wage earning capacity during the partial loss of the use of left hand had no relevancy of materiality and could not form the basis for the rendition of a judgment on such wage earning capacity during partial disability to the body generally.

Special Issue No. 27 was submitted to the jury to be answered if the jury answered Special Issue No. 23 “yes.” Issue No. 23 inquired whether Frank Jones sustained a partial loss of the use of his left hand as a natural result of the injury of November 2, 1962. Having answered Special Issue 23 “yes” the jury answered Issue 27 “$25.00.”

Issue No. 27 inquired as to the plaintiff’s “average weekly wage earning capacity.” In response to Special Issues Nos. 7, 8 and 9, the jury found: (1) that Jones sustained partial incapacity as a natural result of the injury; (2) that such partial incapacity began on January 1,1963; (3) and that such partial incapacity was permanent.

The jury also found in response to Special Issues 16,17 and 18: (1) that Jones sustained a partial loss of the use of his left arm as a natural result of the injury; (2) that such partial loss of the use of the left arm began on January 1, 1963; (3) and that such partial loss of the us.e of the left arm was permanent.

Appellant did not object to the fact that Issue No. 27 was conditioned on a “yes” answer to Issue No. 23 when it should have been conditioned on a “yes” answer to Issue No. 7, which issue inquired as to whether Jones sustained partial incapacity as a natural result of the injury of November 2, 1962.

It would not seem to be material as to whether the jury understood “such partial incapacity” as used in Issue 27 to refer to the partial incapacity found in Issue 7 or that found in Issue 23. The commencing period and termination time in each are the same. It appears there was no objection to the definition of “partial incapacity” or to “average weekly wage earning capacity” as used in the charge.

Moreover, appellant did not object to the court’s omission from the charge of an issue inquiring as to his “wage earning capacity” during the period of partial disability as found in Issués Nos. 8 and 9. The omitted issue is only an element of one ground of recovery by plaintiff and on appeal it is presumed that the trial court found the issue in such a manner as to support the judgment. Rules 279 and 274, Texas Rules of Civil Procedure; Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Pan American Fire & Casualty Company v. Greenberg, 326 S. W.2d 274, (Tex.Civ.App.) 1959, error refused, n. r. e.; General Accident Fire and Life Assurance Corp. v. Murphy, 339 S.W. 2d 392, (Tex.Civ.App.) 1960, error refused, n. r. e.; Sinclair Refining Company v. Winder, 340 S.W.2d 503, (Tex.Civ.App.) 1960, error refused, n. r. e.; Texas Employers’ Insurance Association v. Texas Steel Erection Company, 344 S.W.2d 457, (Tex.Civ.App.) 1961, error refused, n. r. e.; Texas Employers’ Insurance Ass’n v. Neuman, 379 S.W.2d 295, (S.Ct.) 1964.

On voir dire examination of the jury panel, appellee’s counsel Fulmer stated that due to lack of finances and so forth we have not sent the plaintiff, Frank Jones, to a doctor. Immediately thereafter in the absence of the jury panel the defendant duly and timely filed its motion for mistrial based on the statement by plaintiff’s counsel to the jury panel. The trial court overruled defendant’s motion for mistrial. Immediately after the ruling of the court, appellant moved the court to instruct counsel for the plaintiff to desist from any further reference to the reason why he does not call a doctor or does not plan to call a doctor and further requested the court to instruct the jury panel not to consider for any purpose the last remarks of counsel. The trial court refused to so instruct the jury.

Thereafter, during the offering of testimony, plaintiff’s counsel while questioning the plaintiff on direct examination asked him:

“Q All right. Now, did you have any money to go to doctors?
“A No, sir, no money.”

Immediately, counsel for the appellant moved the court to declare a mistrial for the reason that it brings the matter in issue before this court and before this jury and has no basis in this record, which is contrary to the record evidence in this case and the law.

The court said: “All right. The Court is going to sustain the objection. The Court is not ruling on the motion for mistrial, but the Court is going to sustain the obj ection to the question. The question has heretofore been answered by the witness. Therefore, the Court is going and does instruct the jury that you will disregard the answer to this question for all purposes. You will not consider it for any purposes in your deliberations in this case.”

Appellant by its Points 17, 18 and 19 contends that the trial court erred in overruling defendant’s motions for new trial because of the unsworn testimony by counsel Fulmer on voir dire examination and the eliciting of testimony from the plaintiff that he has not been to see a doctor because he does not have the money.

Appellant in support of its contention cites Traders & General Insurance Company v. Derrett, Tex.Civ.App., 340 S.W.2d 305, error refused, n. r. e., wherein the court held that appellee’s counsel in his argument mentioned the $350.00 fee appellant was paying Dr. Wilcox for attending court and then arguing, “I haven’t got that kind of money to pay those kind of prices for doctors” was comparing the relative wealth of the parties and giving unsworn testimony. The court said this kind of argument is improper. Also cited is Texas Co. v. Gibson, 131 Tex. 598, 116 S.W.2d 686, (S.Ct.) wherein the court held that argument contrasting the wealth and power of the defendant with plaintiff’s poverty in a statement to the jury should not render a verdict for the plaintiff because the corporation had all the money and was one of the biggest corporations in the country and because the plaintiff had no money was reversible error.

We do not believe these cases to be in point because the statement of plaintiff’s counsel to the jury panel or the testimony elicited from plaintiff in the case at bar, “that he did not go to see a doctor because he did not have any money” was not an attempt to compare the poverty-stricken condition of Jones with the financial condition of the defendant insurance company.

Moreover, the lump sum issue was in this case and was submitted to the jury. Much evidence was introduced to show Jones’s poverty-stricken condition. Upon this issue, the court admitted testimony of Jones that he had seen no other doctor for his injuries except Dr. Evans and Dr. Mahon because he did not have the money to go to a doctor.

In view of the fact that on the issue of lump sum the evidence shows the poverty-stricken condition of Jones in testimony identical to that of which appellant complained was admitted, plus the fact that Jones testified on several occasions in the course' of the trial that he had to work in order to eat, we do not believe it reasonably probable that the matter of which appellant complains in its Points 17 through 19 caused the rendition of an improper verdict or judgment. Rule 434, Texas Rules of Civil Procedure; Appellate Procedure in Texas, “Harmless Error,” Section 17.12(2) and (3).

We have considered the Points of Error not discussed in this opinion and do not believe they constitute reversible error. Therefore, they are overruled.

■ Finding no reversible error, the trial court’s judgment is affirmed.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Phil JACOBSON et ux., Appellants, v. John R. KINGSBERY, Appellee.
    No. 11354.
    Court of Civil Appeals of Texas. Austin.
    Jan. 12, 1966.
    Rehearing Denied Feb. 2, 1966.

      Ewell H. Muse, Jr., McKay & Avery, Austin, for appellants.
    Black & Stayton, Austin, for appellee.
   ARCHER, Chief Justice.

This suit was brought by appellants, Phil and Dorothy Jacobson, as lessors under a lease contract, against appellee, John R. Kingsbery, one of the guarantors of the faithful performance of the lease. Neither the lessee nor its assign is a party to the suit.

Appellants seek damages in the amount of $9,489.00, being the undisputed amount of delinquent rentals through December of 1964. Appellee’s Second Amended Original Answer, upon which he went to trial, contains a general denial, a plea that “Under the laws of the State of California, which are controlling herein, plaintiffs were required upon demand by defendant, to pursue whatever rights or remedies they may have against Pyramid before any cause of action can mature in their favor against defendant,” and allegations to the effect that appellants released the primary obligors of the lease and accordingly released appellee. By trial amendment appellee further alleged that if the assignment of the lease from Lucky Boy to Pyramid was not approved by plaintiffs, then the lease was thereupon cancelled and all parties, primary and secondary, were released from liability thereunder.

The cause was tried before a court and jury and the jury’s verdict was favorable to appellee. Final judgment was entered that appellants take nothing by their suit against appellee.

This appeal is founded on 15 points and the first seven are grouped and are to the effect that the trial court having found that plaintiffs were entitled to recover as a matter of law, unless barred therefrom by the affirmative defenses raised by defendant; the court erred in overruling plaintiffs’ motion for instructed verdict and for judgment because there was no evidence, or the evidence was insufficient to support any affirmative defenses; that there is no evidence or the evidence is insufficient to support defendant’s alleged theory of a sale or assignment of the lease in question; that any such sale or assignment would not operate to release the defendant from his obligation as a guarantor on the lease; that there is no credible evidence to support a finding that Pyramid Corporation was solvent, and plaintiffs were required to proceed first against such corporation, and if the evidence could support such finding that such would not operate under the law to relieve the defendant, or constitute a valid defense to the suit.

Points numbered 8 to 12 are that the court erred in rendering judgment on the basis of the jury’s answer to Issue No. 4 to the effect that after the premises were vacated plaintiff attempted to relet the same without advising Sorrells that any reletting of the premises would be for the benefit of the lessee because there is no evidence or the great weight and preponderance of the evidence does not support such finding; and even if such were the case this would not constitute a valid defense; that it was defendant’s burden to obtain a jury finding that plaintiffs had elected to “surrender, abandon, cancel and rescind the said lease,” and did not do so.

Points Nos. 13, 14 and 15 are directed to the action of the court in refusing to give plaintiffs’ requested issue inquiring whether or not defendant waived any right to complain of the procedure by which plaintiffs attempted to rent the premises after the abandonment thereof by lessee; that the court erred in failing to permit the plaintiffs to prove the insolvent condition of the companies Lucky Boy and Pyramid Corporation, by the introduction of Exhibit 3-A, the bankruptcy schedules, and finally the court erred in allowing the defendant to open and close the argument before the jury.

Appellee has 14 counterpoints to the effect that appellants in attempting to relet, and by reletting the premises without notifying the lessee or its assigns that such relet-ting was for the benefit and account of lessee, released the lessee from further liability and thereby released appellee as guarantor; that the jury’s answer to Issue No. 4 to the effect that Jacobson did not advise Sorrells that a reletting of the premises would be for the benefit of lessee is supported by sufficient evidence; that the question of notice to Sorrells under Issue No. 4 is the only disputed fact issue presented in connection with appellee’s defense of release of the lessee, and such was established; that the question of notice to Sor-rells constitutes at least one basic element of the defense of release of the lessee; that the court correctly refused to submit appellants’ requested issue inquiring as to the waiver, because appellee had no duty to inform appellants of his defenses, and no evidence that appellee in any way misled appellants concerning his position; that by the law of California appellants are first required to exhaust their remedies against the primary obligors under the lease, and is a substantive right; that the answers of the jury to Issues Nos. 1 through 3, collectively find that the lease was assigned by Lucky Boy to Pyramid with the consent of appellants and are supported by the evidence; that the jury’s findings with respect to Issues Nos. 5 and 6 concerning the financial condition of Pyramid on or about July 2, 1963, and on December 23, 1964 are supported by sufficient evidence; that appel-lee’s demand on July 2, 1963 that appellants first pursue their remedies against Lucky Boy, cannot estop appellee from asserting as a defense that appellants are required to pursue Pyramid; that the court did not err in refusing to admit into evidence appellants’ Exhibit 3-A, being the bankruptcy petition filed by Pyramid because it was hearsay, and if error, such was harmless; that the court correctly allowed appellee to open and close the argument to the jury because the entire submission pertained to appellee’s defenses, and if error such is harmless, and under the law of California when appellants found out that the lease had been assigned to Pyramid they had the option to accept such assignment or of cancelling it, and if the assignment was not accepted such was terminated.

In a trial before a jury, the trial court “found and hereby finds as a matter of law that the plaintiffs are entitled to recover herein as prayed for unless such recovery is barred by the affirmative defenses raised by and on behalf of the defendant herein,” and thereafter, submitting the case to the jury on 6 Special Issues, overruled plaintiffs’ motion for judgment and granted judgment for defendant that plaintiffs take nothing. The parties stipulated that California decisions, statutes, etc. would be considered properly proved up for purposes of citation or reliance thereon.

By a lease contract dated September 2, 1959 plaintiffs let their building to Lucky Boy of San Diego, Inc., the stock of which was owned by Kingsbery, and Kingsbery guaranteed the faithful performance of the terms and conditions of the lease. The building was completed and occupied in January 1960. Sometime after taking possession, Kingsbery sold his stock to Pyramid Corporation, both of which corporations became defunct.

The premises were abandoned by the tenant in August-September 1961.

The defendant makes his defenses that Pyramid became the principal obligor and that prior to suit defendant made written demand that plaintiffs first exhaust their remedies against Pyramid before suing defendant, and that such was not done and no cause of action had yet matured; that after default plaintiffs did not give written notice and took possession, locked the doors, denied access to lessees, and put out “for rent” signs, and in July 1962 relet the property and thus elected to surrender and rescind the lease, and defendant was not liable, and that the lease was cancelled by operation of law.

The case was submitted on six Special Issues and the answers are as follows:

“SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that the lease from Plaintiff Jacobson to Lucky Boy of San Diego, Inc., was sold, transferred or assigned by Lucky Boy of San Diego, Inc. to Pyramid Corporation before August 28, 1961?
Answer ‘Yes’ or ‘No.’
ANSWER: ‘Yes.’
If you have answered the foregoing special issue ‘Yes,’ you will answer the following special issue; otherwise, you will not answer it.
SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that, before September 18, 1961, Plaintiff had notice of such sale, transfer or assignment, if any you have found ?
Answer ‘Yes’ or ‘No.’
ANSWER: ‘Yes.’
If you have answered the foregoing special issue ‘Yes,’ you will answer the following special issue; otherwise, you will not answer it.
SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that Plaintiff Jacobson, after having notice of such sale, transfer or assignment, if you have so found, dealt with Pyramid Corporation as the lessee of the premises involved herein?
Answer ‘Yes’ or ‘No.’
ANSWER: ‘Yes.’
SPECIAL ISSUE NO. 4: Do you find from a preponderance of the evidence that, after the premises in question were vacated and before Plaintiff Jacobson attempted to relet the same, he did not advise Mr. Sorrells that any reletting of the premises thereafter by Plaintiff Jacobson would be for the benefit of the lessee?
Answer ‘He did advise’ or ‘He did not advise.’
ANSWER: ‘He did not advise.’
If you have answered special issues 1, 2 and 3 ‘Yes,’ you shall answer special issues S and 6; otherwise, you will not answer them.
In connection with the two following issues, you are instructed that a corporation is insolvent when it is unable to pay its debts from its own means as they become due.
SPECIAL ISSUE NO S: Do you find from a preponderance of the evidence that, on July 2, 1963, Pyramid Corporation was insolvent?
Answer ‘Yes’ or ‘No.’
ANSWER: ‘No.’
SPECIAL ISSUE NO 6: Do you find from a preponderance of the evidence that, on December 23, 1964, Pyramid Corporation was insolvent?
Answer ‘Yes’ or ‘No.’
ANSWER: ‘No.’”

Since there is no question as to the lease and its terms we do not copy it, except the guaranty which reads:

“For good and valuable consideration receipt of which is hereby acknowledged we and each of us do hereby individually garrantee (sic) the faithful performance of all of the terms and conditions of the above lease.”

This is signed by John R. Kingsbery and J. Carl Hughes.

The rental was a minimum of $300.00 per month.

Kingsbery owned all of the capital stock of Lucky Boy and sold such to Houston W. Sorrells. Attorneys for Sorrells requested plaintiffs to authorize a transfer of the lease to a prospective partnership which plaintiffs refused to do unless Kingsbery remained as a guarantor.

Sorrells sold all of the stock of Lucky Boy to Pyramid Restaurant Corporation.

Rent was paid until August 1961, at which time plaintiff wrote Sorrells, and Sorrells replied by letter dated August 28, 1961 stating that the place had been sold to Pyramid and had been closed and requested plaintiff to take the place back, and plaintiff told Sorrells that he did not want to take possession, and demanded that the rent be paid.

During September several checks were received by plaintiff but were not honored, but later some were paid.

On October 31, 1961 John R. Gorman, Jr., wrote Jacobson requesting approval of a plan of payment for the delinquent rent, and Jacobson called Gorman and said that he would be happy to accept the checks for the rent. One payment of $300.00 was made.

On November 21, 1961 Jacobson wrote Kingsbery requesting Kingsbery to communicate with him so they could discuss Jacobson’s claim against Kingsbery as guarantor before proceedings were instituted.

Jacobson talked with an attorney for Kingsbery who said he would investigate the matter and advise Jacobson within ten days.

On December 14, 1961 attorney for Kingsbery wrote Jacobson and requested a copy of the lease, which was sent.

Much correspondence was had between Jacobson and an attorney for Kingsbery.

Jacobson made efforts to relet the premises but without success until in July 1962 when a tenant for a year at $150.00 was secured but this tenant stayed only a short time.

On January 2, 1962 plaintiff wrote to Mr. Savitch that he expected to be in San Diego and that he wanted some information from Kingsbery so he could made an effort to effect a lease which would be to the interest of all parties.

There were many letters and conversations between Jacobson and Savitch concerning the rental of the premises.

On May 10, 1962 Jacobson wrote Kings-bery stating that he had made efforts to secure a tenant to minimize the loss but without success, and requested a meeting in an attempt to effect a settlement. No answer was made by Kingsbery.

On May 27, 1963, an attorney for plaintiff wrote defendant telling him of the sums due, and that unless contacted suit would be filed.

On July 2,1963 an attorney for defendant wrote that Mr. Jacobson should pursue whatever claim he has against Lucky Boy prior to making demands on the guarantor and demanded that such be done.

It appears that a prime question, if not the controlling issue in this appeal, is whether under the laws of California plaintiffs were required upon demand by defendant to pursue whatever rights or remedies they may have against Pyramid before any cause of action can mature against defendant.

The trial court found that as a matter of law that plaintiffs are entitled to recover unless such recovery is barred by the affirmative defenses, and after a trial before a jury rendered judgment for defendant.

The jury in answer to Special Issue No. 1, found that the lease from Jacobson to Lucky Boy was transferred to Pyramid before August 28, 1961, and in answer to Issue No. 2 the jury found that Jacobson had notice of such transfer, and in answer to Issue No. 3 the jury found that Jacobson, after having notice of such sale, dealt with Pyramid as the lessee of the premises.

In answer to Issue No. 4, the jury found that after the premises were vacated and before Jacobson attempted to relet the same he did not advise a Mr. Sorrells that any reletting thereafter would be for the benefit of the lessee. The jury found that on July 2, 1963 Pyramid was solvent, and was not insolvent on December 23, 1964.

We believe the answers of the jury are supported by sufficient evidence, and established the elements of appellee’s defense of release of the lessee.

We have hereinabove set out or made reference to the actions of the parties and will not further discuss such evidence except for clarification.

The execution by Lucky Boy and the guaranty by Kingsbery of the lease on September 2,1959 is not disputed.

Kingsbery who owned all of the stock in Lucky Boy sold said stock to Houston Sor-rells, which he had a right to do.

In December 1960 the stock in Lucky Boy was sold to Pyramid, of which John Gorman was president, and Sorrells treasurer.

The rent was not paid for July and August 1961. Jacobson wrote Sorrells on August 22 requesting payment, and on August 28 Sorrells advised Jacobson that Pyramid had closed.

On September 18, 1961 a conference was had between Sorrells, Jacobson and Gor-man, at which time Jacobson said he had a couple of bad checks issued by Pyramid for rent and that he would go to the D.A. if they did not straighten it up.

Sorrells testified that at no time did he receive any notice that Jacobson was re-letting the premises for the benefit or account of the tenant.

Jacobson testified that he advised Sorrells that the tenant must continue the lease and that the premises would be relet for Lucky Boy’s benefit, and that Sorrells agreed to assist in putting up the “For Rent” signs.

It is apparent that Jacobson acting through his brother and no one else placed the “For Rent” signs on the premises a few days after September 18, 1961.

After the lease was abandoned by the tenant and after Jacobson began efforts to relet the property his contacts with Sor-rells were directed towards collecting the checks given by Pyramid for August and September rent.

On March 22, 1962 Jacobson wrote Sor-rells a letter and said that he had not received payment for the check dated 9/18/61, and that unless the amount of the check was not sent in 7 days he would pursue such course as he deemed advisable.

On October 24, 1961 Jacobson wrote Kingsbery and advised him that the business had been closed, everything moved out and current rentals were not being paid. Kings-bery had moved and did not get this letter. On November 21, 1961 Jacobson again wrote Kingsbery, enclosing a copy of the October 24 letter and requested Kingsbery to contact Jacobson so that a discussion could be had relative to Jacobson’s claim.

On December 27, 1961 Kingsbery made a trip to San Diego and went to the premises, and found that the building was not occupied, doors locked and “For Rent” signs were up, with only the phone number of Jacobson’s brother listed, and on December 29 his attorney Savitch advised him that he was released under the guarantee, and that he should not enter into any further negotiations with Jacobson unless he wanted the property back.

In July 1962 Jacobson relet the property to one Newmark and could not remember whether he gave notice of such to Sorrells. The premises was relet again in December 1963 without contacting Sorrells.

Kingsbery testified from his experience in the restaurant business that if he had been put on notice when the trouble first started, it is “very possible” that he could have amended the difficulties.

All parties agree that the law of California governs all substantive issues in this cause.

Kingsbery’s liability is secondary and is dependent upon liability on the part of Lucky Boy and/or Pyramid being established, and the prime issues concern the liability of the primary obligors under the lease, and if Jacobson by his acts and conduct has released the tenant he has also released Kingsbery, regardless of how diligently he has pursued Kingsbery alone.

The Civil Code of California contains the following provisions:

“§ 2809. [Measure of liability: Generally.] The obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its terms it exceeds it, it is reducible in proportion to the principal obligation.
§ 2810. [Same: Disability of principal.] A surety is liable, notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal; but he is not liable if for any other reason there is no liability upon the part of the principal at the time of the execution of the Contract, or the liability of the principal thereafter ■ ceases, unless the surety has assumed liability with knowledge of the existence of the defense.”

In Mortgage Finance Corporation v. Howard, 210 Cal.App.2d 569, 26 Cal.Rptr. 917 (1962), it was stated:

“The foregoing enactments restate collectively the common-law rule that the liability of a surety is, as a general rule, coextensive with that of the principal. It must be neither larger in amount nor in other respects more burdensome than that of the principal.”

In Maurice Mercantile Co. v. American Employers Insurance Co., 140 Cal.App. 354, 35 P.2d 1047 (1934), in a lease case the lessee defaulted and the lessor took action amounting to a termination of the lease. It was held that the surety had no further obligation. Stephens v. Daugherty, 33 Cal.App. 733, 166 P. 375 (1917).

The California rule upon which appellee relies is stated in Bernard v. Renard, 175 Cal. 230, 165 P. 694, 3 A.L.R. 1076 (1917) as follows:

“The law on this question was very clearly stated by the District Court of Appeal of the Second Appellate District in an opinion written by Presiding Justice Conrey in Rehkopf v. Wirz et al., 31 Cal.App. 695, 161 Pac. 285, as follows:
‘Where a tenant abandons the leased property and repudiates the lease, the landlord may áccept possession of the property for the benefit of the tenant and relet the same, and thereupon may maintain an action for damages for the difference between what he was able in good faith to let the property for and the amount provided to be paid under the lease agreement. Bradbury v. Higginson, 162 Cal. 602 [123 Pac. 797]. But a lessor who chooses to follow that course must in some manner give the lessee information that he is accepting such possession for the benefit of the tenant and not in his own right and for his own benefit. If the lessor takes possession of property delivered to him by his tenant and does so unqualifiedly, he thereby releases the tenant. Baker v. Eilers Music Co., 26 Cal.App. 371 [146 Pac. 1056]; Welcome v. Hess, 90 Cal. 507 [27 Pac. 369, 25 Am.St.Rep. 145]. An unqualified taking of possession by the lessor and reletting of the premises by him as owner to new tenants is inconsistent with the continuing force of the original lease. If done without the consent of the tenant to such interference, it is an eviction, and the tenant will be released. If done pursuant to the tenant’s attempted abandonment, it is an acceptance of the surrender and likewise releases the tenant.’ ”

In Dorcich v. Time Oil Co., 103 Cal.App. 2d 677, 230 P.2d 10 (1951) the rule is set out.

On September 18, 1961 Jacobson had a conference with Sorrells at which time the intended abandonment of the lease was made known to Jacobson, and Jacobson had the option of reletting the property for his own account or of reletting the property for the lessee’s account, in which latter case Jacobson was required by the law of California to give advance notice to the tenant of his intentions.

In passing it may be noted that Mr. Jacobson was a California lawyer and a businessman well versed in the principles involved and aware of his rights and of the rights of his tenant. Rognier v. Harnett, 45 Cal.App. 2d 570, 114 P.2d 654 (1941).

We believe that the finding of the jury in answering Special Issue No. 4 is supported by the evidence.

The lease was abandoned. Jacobson did attempt to relet the property without giving notice to the tenant that the reletting was for the tenant’s account.

The inquiry in Issue No. 4 is limited to Mr. Sorrells and this was because he is the only person Jacobson claims to have notified of any intention to relet the premises for the benefit of the tenant.

The manner in which Issue No. 4 was submitted is in accord with the submission of issues narrowed to the particular act on which there is a dispute. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449; Rule 279, Texas Rules of Civil Procedure.

There is no evidence that Kingsbery ever waived any right.

Appellee’s defense is Section 2845 of the California Civil Code, which provides as follows:

“A surety will require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety cannot himself pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced.”

There was no error in sustaining appellee’s objection to appellants’ Exhibit 3-A, being the bankruptcy petition filed by Pyramid in January 1962. The statements are hearsay for the purpose of this suit, and in any event harmless.

The court correctly allowed appellee to open and close the arguments to the jury. The appellee had the burden on his defense, and if error, such was harmless since appellants did not show any material harm as a result thereof. Rule 269(a), T.R.C.P.; Dixon v. Dixon, Tex.Civ.App., 348 S.W.2d 210, n. w. h.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

I respectfully dissent. I would sustain all of appellants5 points essential to reversing and rendering judgment for them and, in the alternative, I would sustain such of their points as require a reversal and remand.


author: DIXON, Chief Justice. BATEMAN, Justice.

text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. J. H. LANE, Appellee.
    No. 16645.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 31, 1965.
    Rehearing Denied Jan. 28, 1966.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Robert K. Drummond and John H. Marks, Jr., Dallas, for appellant.
    Cervin & Stanford and V. Scott Kneese, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee J. H. Lane brought this suit against appellant Great American Insurance Company on an automobile insurance policy whereby appellant insured appellee against damage to appellee’s truck caused by collision or upset.

Both parties filed motions for summary judgment. Appellant’s motion was overruled. Appellee’s motion was sustained. Judgment was rendered for appellee for $1,018.

It was stipulated that (1) the damage to appellee’s vehicle resulted when a falling object, to-wit: a dragline bucket fell upon appellee’s vehicle; (2) appellee had purchased collision coverage, but had not purchased comprehensive coverage, although it was available; (3) the sole question in dispute in this proceeding is: “Whether or not the policy of insurance issued by the Defendant insured Plaintiff against a loss to his truck as the result of a falling object,: to wit a drag line bucket falling on said truck while said truck was being loaded.”; (4) in the event the court finds that the policy of insurance did insure appellee against such loss, appellee is entitled to judgment in the amount of $1,018; and (5) otherwise appellant is entitled to judgment that appellee take nothing. A copy of the insurance policy is attached to the stipulations.

In an affidavit in support of his motion for summary judgment appellee Lane swore that in June 1964 he was employed to haul dirt from an excavation to the site of road construction on Highway 69. On July 6, 1964 one of appellee’s regularly employed drivers drove the truck here involved under a dragline being operated by one of the two contractors who had engaged appellee to do the hauling. The dragline had just taken about three yards of dirt into the bucket and was swinging over to unload the dirt into the truck when the dragline bucket came into collision with the truck, causing damage to the vehicle.

In its sworn answer to appellee’s affidavit appellant alleged that appellee’s loss was caused by “a falling object” and is not covered under the policy purchased by ap-pellee, who purchased only collision coverage. Appellant attached a copy of a written statement made by appellee, in which statement appellee said that “a clevis broke on the drag line and dropped about 3½ yards of dirt and the bucket onto the bed of the truck * ⅝

In short, the stipulations and the affidavits make it clear that the bucket was a part of a piece of machinery which was being used to load dirt into appellee’s truck; and that the bucket, while being swung into position over the truck, became detached from the rest of the machinery when the clevis broke and the bucket dropped upon the truck.

In its one point on appeal appellant asserts that the policy of insurance issued to plaintiff does not, by its terms, include coverage for damages resulting from “falling objects”. In our opinion appellee’s loss was caused by a collision within the meaning of “Coverage E” of the policy, therefore appellee is entitled to judgment in his favor.

In Providence Washington Insurance Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 our Supreme Court held that a loss caused by flood water striking an automobile was a collision within the terms of a policy similar to the one under consideration here. In that case, as in this case, the insured had purchased collision coverage, but had not purchased comprehensive coverage, though the latter was available to him.

In reaching its decision the Supreme Court quoted with approval a portion of the opinion in Long v. Royal Ins. Co., 180 Wash. 360, 40 P.2d 132, 133, 105 A.L.R. 1423 which in turn quoted the definition of collision as stated in the Century Dictionary and Encyclopedia: “The meeting and mutual striking or clashing of two or more moving bodies, or of a moving body with a stationary one.”

The court’s approval of the above dictionary definition is in keeping with that part of the opinion in American Automobile Ins. Co. v. Baker, Tex.Civ.App., 5 S.W.2d 252 wherein it was held the court in construing a policy determines the everyday meaning of the words to the general public; and with that part of the opinion in United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340, 341, in which it is stated that the court in construing a policy form prescribed by a State Insurance Commission “determines the everyday meaning of the words to the general public the meaning of the words ‘in common parlance’ — ‘the usual and popular understanding of the term.’ ” See also Iowa Mutual Ins. Co. v. Faulkner, 157 Tex. 183, 300 S.W. 2d 639, 642. Applying that construction here we are of the opinion that the impact between appellee’s automobile and the falling bucket must be termed a collision.

Our Supreme Court in the Proffitt case construed this language in the comprehensive provision: “Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss by collision or upset.” The court held that the purpose of the above quoted provision, which is almost exactly like the one in the instant policy, was to enlarge the liability of the insurer under the comprehensive coverage and was not to restrict the liability of the insurer under the collision coverage.

The language of Coverage D — the comprehensive provision in the present policy— seems to a majority of this court susceptible only of the interpretation which our Supreme Court has put upon the similar provision in the Proffitt case. It expressly excepts collision from comprehensive coverage. Then Coverage D quickly goes on to explain by saying “Breakage of glass, * * * falling objects * * *” and the other named perils “shall not be deemed loss caused by collision * * * ” — thus in a negative way saying that the named perils are not within the named exception: collision. If they are not within the named exception, collision, then they must be by implication included in the comprehensive coverage. It is an awkward, negative way of saying by implication that the comprehensive provision includes “Breakage of glass * * * falling objects * * *”, etc. It would have been much simpler to say that collision is excluded from comprehensive coverage but loss from “Breakage of glass * * * falling objects * * * ”, etc. is included in comprehensive coverage.

However, if we say that the effect of the language above referred to is to include falling objects within comprehensive coverage we do not thereby mean to say that loss from falling objects is excluded from collision coverage. We know of no rule which says that if a peril is included in one coverage it is necessarily excluded from another. In the policy construed in United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340, 342, a case heavily relied on by appellant, there were two separate and distinct provisions — Coverage H and Coverage I — each of which included windstorm coverage. If the same coverage can be included in two separate provisions by the express statements in a policy we believe the same thing can be accomplished by implication.

The court, following Glens Falls Ins. Co. v. McCown, 149 Tex. 587, 236 S.W.2d 108. 111, did hold in the Proffitt case that though the insured had not purchased comprehensive coverage, that provision might be examined for the purpose of determining the respective obligations and rights of the parties. But the court then held that the provision in the comprehensive coverage that loss caused by falling objects shall not be deemed loss by collision "cannot be used to defeat a recovery under” the provision in the policy specifying coverage for collision. (Emphasis of quoted part supplied.)

Recently the Supreme Court reaffirmed its holding in the Proffitt case by saying, “We made clear in Providence Washington Insurance Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, that a limitation of liability will not be added where none exists in the policy itself.” (Emphasis supplied.) Continental Casualty Co. v. Street, Tex., 379 S.W.2d 648, 650. We have examined the policy itself in this case and find no limitation whereby a collision with a falling object is excluded from the collision coverage. Paragraphs “1” and “n” under the heading “Exclusions” specifically name the coverages which are excluded from the collision coverage. Loss due to falling objects is not excluded; and under the holding in the Proffitt and Street cases such limitation of liability cannot be added where none exists in the policy itself.

We have found no cases exactly in point. The one nearest in point is from another jurisdiction and is persuasive. In Barnard v. Houston Fire & Casualty Ins. Co., La.App., 81 So.2d 132, 54 A.L.R.2d 374, the court was faced with a situation similar in many respects to that facing us here. The insured had purchased collision coverage, but not comprehensive coverage. A tree fell on the insured’s truck after being cut down by workmen. The question before the court was whether the insured’s loss was caused by collision within the collision coverage of the policy, or by a falling object solely within the comprehensive coverage of the policy. The collision and comprehensive provisions of the policy were almost exactly like the provisions in the policy now before us. In a carefully considered opinion the Court of Appeals of Louisiana decided that the damage was due to a collision and the insured was afforded coverage under that provision of the policy.

The position of appellant in this case is that only the comprehensive provision of the policy includes loss from falling objects; and appellee, having been presented with a choice of the coverages available to him, elected not to take out comprehensive coverage, thus choosing not to purchase coverage against loss by falling objects. In support of this contention appellant relies mainly on the holding of our Supreme Court in United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W. 2d 340.

We do not believe that the Boyer case is in conflict with the Proffitt case or with our holding in this case. In fact the Boyer ease refers to and “specifically reaffirmed” the Proffitt case. In Boyer the loss was unquestionably caused by windstorm. Loss by windstorm was expressly, specifically and separately named as a type of coverage in two different provisions of the policy. By thus segregating and defining windstorm loss the Insurance Commission intended, according to the Boyer opinion, to give the public a choice in purchasing insurance.

In the instant case loss by falling objects is not named as a specific, separate, segregated type of coverage, and as we have pointed out it is not named in the exclusions applicable to the collision coverage. This fact becomes important in view of the utterance of the Supreme Court in the Street case reaffirming its holding in the Proffitt case and expressly stating that a limitation will not be added where none exists in the policy.

Appellant also cites these cases: American Automobile Ins. Co. v. Baker, Tex.Civ.App., 5 S.W.2d 252 (No writ history) in which it was held that collision coverage did not include damage from hail; O’Leary v. St Paul Fire & Marine Ins. Co., Tex.Civ. App., 196 S.W. 575, in which it was held that damage caused by the collapse of a building due to a severe storm was not a collision within the meaning of a policy of insurance; and Iowa Mutual Ins. Co. v. Faulkner, 157 Tex. 183, 300 S.W.2d 639, 641, in which our Supreme Court held that a policy insuring coverage against burglary of a safe did not cover loss by theft of money from an unlocked cash register and file. We think the above cases are distinguishable from the case now before us. In any event, the Proffitt case was decided by our Supreme Court later than the Baker and O’Leary cases and had the effect of overruling any of the holdings in them which may have been in conflict with the holdings in the Proffitt case. Though the Faulkner case is not in point with this case, it contains some pronouncements which add strength to our holding here.

Appellant’s one point on appeal is overruled.

The judgment of the trial court is affirmed.

Affirmed.

BATEMAN, Justice.

I respectfully dissent.

The opinion of the majority is based primarily upon that portion of the opinion in Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, wherein it was held that the provision in the Comprehensive Clause, that loss caused by falling objects, etc. shall not be deemed loss caused by collision or upset, cannot be used to defeat a recovery under the Collision Clause.

However, in the preceding paragraph of the Proffitt opinion the court held that it was proper to examine the language of the Comprehensive Clause for the purpose of determining the respective obligations and rights of the parties to the policy. In examining that language for that purpose, I cannot close my eyes to, or remove from my mind, the plain, uncomplicated, direct statement that “loss caused by * * * falling objects * * * shall not be deemed loss caused by collision or upset.” I do not see how we can properly hold that this language means what it plainly says for the limited purpose of expanding the protection under Coverage D (Comprehensive), but that it is meaningless when considered for any other purpose. As said by a Court of Appeals of Louisiana, in Manard Molasses Co. v. Sun Ins. Office, Ltd., 170 So.2d 691, 693, it would be “contradictory and illogical to judicially hold that the definition of ‘collision’ and ‘upset’ has one interpretation in one policy excluding such coverage, and another definition in a policy including such coverage.”

It seems to me that the insurer is in effect saying to the insured: “You have requested collision and upset coverage, but you should know that in rejecting comprehensive coverage, which is also available, you are denying yourself protection against loss from falling objects, for that protection is not included in collision or upset coverage— only in the comprehensive coverage.” Having limited his purchase of insurance protection to “collision or upset” coverage despite that warning, the appellee is in no position to claim now that under the dictionary definition of the word “collision” he is nevertheless entitled to recover.

As pointed out by Mr. Justice Brewster in Glens Falls Ins. Co. v. McCown, 149 Tex. 587, 236 S.W.2d 108, 111, by using the form prescribed by the Insurance Commission the insurer offers the insured several separate and distinct coverages and informs him that he has accepted only those which are followed by specific premium charges and has rejected the others because they are not followed by specific premium charges, and that by retaining the policy the insured accepts the insurer’s offer. The opinion then says:

“The coverages offered but rejected are in the policy (under the direction of the Insurance Commission) the same as are those offered and accepted, therefore it is proper to consider all of them in determining the respective obligations and rights of the parties to the policy. Only on that basis can our public policy in prescribing uniform policies be served.”

Other cases holding that it is proper for the court to examine the language of an insuring clause in the policy, which does not have a premium set opposite it and is therefore rejected, to determine the intent of the parties to the insurance contract, are Iowa Mutual Ins. Co. v. Faulkner, 157 Tex. 183, 300 S.W.2d 639, 642, wherein the Supreme Court, speaking through Mr. Justice Culver, said: “It is proper to consider coverages in the policy that have been rejected by the insured as an aid in ascertaining the extent of the coverage purchased,” and United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340, decided three years after the Proffitt case, holding that in construing such a policy the court should determine the everyday meaning of the words to the general public, followed by an examination of the choice of insurance coverages made available to the purchaser, the choice he made and the choices, if any, he rejected.

In my opinion, the loss here was not covered by the policy sued on because such a loss was not contemplated by either party to the contract, using the word “collision” in the usual everyday parlance of the public generally in speaking of automobile insurance coverages. A contrary holding would be in conflict with the Supreme Court’s opinion in United States Ins. Co. of Waco v. Boyer, supra, holding that a similar policy did not cover damage to a parked vehicle when bricks and timbers fell from a building damaged by a tornado; and the opinion of the Beaumont Court of Civil Appeals in O’Leary v. St. Paul Fire & Marine Ins. Co., Tex.Civ.App., 196 S.W. 575, no wr. hist., holding that the second floor of a collapsed garage building falling upon the insured automobile was not covered by a policy insuring against loss by “collision”; and that of the Waco Court of Civil Appeals in American Automobile Ins. Co. v. Baker, Tex.Civ.App., 5 S.W.2d 252, no wr. hist., holding that the falling of hail on the automobile was not a collision as contemplated by a similar insurance policy.

Speaking of the common, ordinary, everyday use of the word in question, I do not believe that one out of a hundred laymen who might have witnessed the accident giving rise to this litigation would have used the word “collision” in describing it. In my opinion, most if not all of them would say that the bucket fell on the truck or that the damage to the truck was caused by the bucket falling on it. The poet might say that the apple descended from the tree and collided with Mother Earth, but the man in the street would say that the apple was ripe and fell to the ground.

I would reverse and render the judgment.

      . “Coverage E — Collision or Upset. To pay for direct and accidental loss or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto.”

      . “Coverage D — Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset. To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, malicious mischief or vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.”