author: NORTHCUTT, Justice.

text:
    AMERICAN BANKERS INSURANCE COMPANY, Appellant, v. Billy G. LOVELL, Appellee.
    No. 7716.
    Court of Civil Appeals of Texas. Amarillo.
    May 22, 1967.

      Stigall & Maxfield, Dallas, John F. Max-field, Dallas, of counsel, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, Bill LaFont, Plainview, of counsel, for appellee.
   NORTHCUTT, Justice.

Billy G. Lovell, hereinafter referred to as plaintiff, brought this action against American Bankers Insurance Company, hereinafter referred to as defendant, to recover for expenses alleged due under the terms of an insurance policy issued by defendant. The policy insured plaintiff and all other dependent members of his family named in the application for hospital and/or medical or surgical insurance. The policy included Kimberly Lovell, a daughter of plaintiff. On July 6, 1965. Kimberly Lovell received an accidental bodily injury when she fell in a camp fire. It is admitted that defendant paid for the initial treatment of Kimberly Lovell except for one small bill.

The plaintiff pleaded that on or about November 30, 1965, and before 180 days from the date of the injury had elapsed that the defendant was notified that Kimberly Lovell was suffering from the injuries and that surgery and skin grafting would need to be performed upon her. The plaintiff then pleaded that on or about January 1, 1966, Dr. Dean C. Kipp performed the surgery and skin grafting which was necessary and reasonable in order to prevent future limiting of motion to Kimberly. Defendant refused to pay for the skin grafting and plaintiff brought suit to recover for medical and hospital services in said grafting in the sum of $579.65, together with $69.56 penalty and $200 attorney’s fees, making a total of $849.21. The case was tried to the court without a jury and judgment was granted in favor of plaintiff for the $849.21. From that judgment defendant perfected this appeal.

Defendant presents this appeal upon three assignments of error. By its first point it is contended the court erred in rendering judgment for plaintiff in any amount because such recovery was precluded by express terms of the insurance policy. The second point is that the court erred in refusing to permit the filing by defendant of a trial amendment. The third point is that the court erred in rendering judgment for any amount, since there was no admissible evidence of probative force, only hearsay evidence admitted over objection, to sustain a monetary judgment.

We sustain defendant’s third point of error since there was no admissible evidence of probative force to establish the reasonableness of the charges made for the services rendered. It is stated in Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956) as follows:

“We thus are left with the amount of the charges as the only evidence in this record which might throw any light on the reasonable value of the services rendered. In some jurisdictions proof of the expenses incurred or paid for the treatment of personal injuries is regarded as presumptive evidence of the reasonable value of the services, provided the unreasonableness of the charges does not appear from other evidence. This rule has never been followed in Texas, and it is now well settled that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable. Wheeler v. Tyler, S. E. R. Co., 91 Tex. 356, 43 S.W. 876; Houston, E. & W. T. R. Co. v. Jones, Tex.Civ.App., 1 S.W.2d 743 (wr. ref.); Annotation 82 A.L.R. 1325; and authorities cited therein. We hold that testimony showing only the nature of the injuries, the character of and need for the services rendered, and the amounts charged therefor does not constitute evidence of probative force that the charges are reasonable.”

Since defendant’s first and second points of error involve the 180 day provision of the policy sued upon, we will discuss both points together. The Exclusion 9 of the policy provides, inter alia: “No indemnities whatsoever shall be payable under this policy for loss or disability resulting wholly or partially, in or from skin grafts or plastic surgery, unless due to, and performed within One Hundred and Eighty (180) days from the occurrence of accidental bodily injury.” The terms therein are unambiguous and no room is left for construction. The plaintiff pleaded as follows:

“On or about November 30, 1965, and before 180 days from the date of the injury had lapsed, Defendant insurance company was notified by Dr. Dean C. Kipp, Kipp & Dunton, Plastic & Reconstructive Surgery, 3601 Swiss Avenue, Dallas, Texas, that KIMBERLY LOV-ELL was suffering from chronic third degree hypertrophoied burn scars, with contractures of extensor aspect wrist, right, and both buttocks, and that surgery and skin grafting would need to be performed on KIMBERLY LOVELL in order to prevent the limiting of motion in the future as growth occurred.
“On or about January 1, 1966, Dr. Dean C. Kipp performed the surgery and skin grafting which was necessary and reasonable in order to prevent future limiting of motion to KIMBERLY LOV-ELL.”

When the plaintiff offered in evidence for a limited purpose the insurance policy, the defendant raised in issue the pleadings of the plaintiff had put in issue the 180 days exclusion of the policy and wanted the policy introduced for all purposes. At that time stated if there was any question about that he wanted to file a trial amendment to clear up the matter. He requested permission of the court to file a trial amendment to set out the 180-day exclusive provision. He drew up the amendment but the court refused to permit him to file it.

There was no reason for the plaintiff to plead that defendant was notified before 180 days from the date of the injury that surgery and skin grafting would need to be performed unless he was attempting to show that all he had to do to comply with the exclusion was to give notice and thereby extend the period of liability. The liability of the defendant was based upon the terms of the policy in effect at the time of the injury. In other words, such pleadings must be construed as-an attempt on the part of the plaintiff to bring himself within the terms of the policy. Here the plaintiff pleaded and proved the length of time between the injury and the skin graft was more than 180 days. We are of the opinion, and so hold, that the judge abused his discretion in refusing to permit defendant to file the trial amendment. We sustain defendant’s second point of error.

It was incumbent upon plaintiff to plead facts sufficient to show that the skin graft occurred within 180 days of the accident. Douglas v. Southwestern Life Insurance Company, 374 S.W.2d 788 (Tex.Civ.App.—Tyler, 1964, writ ref’d n. r. e.). See also Marroquin v. Trinity Universal Insurance Co., 394 S.W.2d 246 (Tex.Civ.App.—Fort Worth, 1965, no writ).

However, in this case the pleadings clearly show that the skin graft was not performed within the 180 days as provided in the policy it should be done. The evidence shows the skin graft operation was done some 217 days after the injury occurred. Since the plaintiff pleaded such facts as to clearly show that the skin graft was performed more than 180 days after the injury, consequently the pleadings show he did not come within the terms of the policy. It is stated in Barnett v. Travelers’ Ins. Co., 32 F.2d 479 (8th Cir., 1929) as follows:

“This was concededly a policy limiting indemnity for the death or other disability mentioned, to occurrence within ninety days of the accident. In this case that limit was exceeded by four or five days. This court has sustained a similar clause in accident policies and has limited the recovery accordingly. McKinney v. General Accident Co., 8 Cir., 211 F. 951. It is there said: ‘Where the terms of a contract are unambiguous and their meaning is plain, they must be held to mean what they clearly express, and no room is left for construction.’
“See also the holdings of this court in the following cases: Hawkeye Commercial Men’s Association v. Christy, 8 Cir., 294 F. 208-218, 214, 40 A.L.R. 46; New Amsterdam Casualty Co. v. Central Nat. Fire Ins. Co., 8 Cir., 4 F.2d 203-208; Commonwealth Casualty Co. v. Aichner, 8 Cir., 18 F.2d 879.
“The contention that appellee has waived this defense by the mere filing of a general denial is without merit. It was incumbent upon appellant to plead facts sufficient to bring her within the terms of the policy. In so doing she disclosed that death occurred beyond the limit fixed in the policy contract. In such case, it was neither necessary nor required that appellee should repeat in its answer.”

See also Reliance Mutual Life Insurance Co. of Ill. v. Booher, 166 So.2d 222, 10 A. L.R.3d 458 (Fla.App.1964).

Since we are of the opinion that the pleadings as well as the evidence show the plaintiff did not come within the terms of the policy, we sustain defendant’s first point of error.

Judgment of the trial court is reversed and rendered that plaintiff take nothing.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jose GALLEGOS, Appellee.
    No. 14568.
    Court of Civil Appeals of Texas. San Antonio.
    March 22, 1967.
    Rehearing Denied May 19, 1967.

      Groce, Hebdon, Fahey & Smith, Charles L. Smith, San Antonio, for appellant.
    Maverick, Tynan & Gochman, Arthur Gochman, San Antonio, for appellee.
   BARROW, Chief Justice.

This is a workmen’s compensation case. Appellant, Texas Employers’ Insurance Association, appeals from a judgment entered on a jury verdict whereby appellee, Jose Gallegos, recovered maximum benefits for total and permanent incapacity, together with the sum of $1,368.39 for unpaid medical expenses.

On February 23, 1965, appellee was injured when struck in the abdomen and chest by a heavy I-beam he was cutting in the scope of his employment for Alamo Junk Company. He was taken to Dr. O. H. Timmons, the company doctor, where he was X-rayed and treated by diathermy. No ribs were broken, but he had a large bruise just below his left rib cage. The X-rays also showed an ill-defined mass on his lower right lung. He returned to work the following day and worked three days, however, he continued to complain of pain in the area of his stomach and spat up blood once or twice a day. He was hospitalized by Dr. Timmons from March 1 to March 8, 1965, for closer examination and treatment by therapy and antibiotics. After his release from the hospital he continued to see Dr. Timmons occasionally until August 27, 1965. On April 12, 1965, he returned to work, although he testified that he performed only light duties and suffered pain as a result thereof. He worked continuously until September 23, 1965, when he spat up a large amount of blood. He went back to Dr. Timmons who returned him to the hospital, and after further tests his right lung was removed on September 26 because it was malignant with cancer. The case was tried on May 26, 1966, and ap-pellee testified that he was still unable to do any work.

Appellant judicially admitted that appel-lee had sustained an injury in the scope of his employment which had resulted in temporary total incapacity until April 12, 1965. It pleaded, however, that any incapacity after that date or, in any event, after September 26, 1965, was solely caused by the cancer which appellee had prior to the injury. Thus there were two ultimate issues in dispute — whether or not appellee was incapacitated after April 12, 1965, and, if so, was the injury of February 23, 1965, the producing cause of same. The usual and customary workmen’s compensation issues were submitted to the jury, over appellant’s objections, which resulted in Issue No. 5 and Issue No. 14, relating to medical expenses, being the only disputed issues answered by the jury.

Appellant complains, by “no evidence” and “insufficient evidence” points, of the findings of total and permanent incapacity and particularly of any finding after April 12, 1965, or September 24, 1965. It further complains of the refusal of the trial court to submit its requested sole cause issues and of the erroneous submission of the four undisputed issues. It also asserts that there was “no evidence” and “insufficient evidence” of a causal connection between the injury and the medical expenses incurred in removal of the lung.

There was no medical evidence produced by appellee. He asserts that his testimony that he was able to work and play soccer before the injury and has been unable to do so since the injury makes out a case for him. See Texas Employers Ins. Ass’n v. Hoover, Tex.Civ.App., 382 S.W.2d 174, writ ref’d n. r. e.; Travelers Ins. Co. v. Beisel, Tex.Civ.App., 382 S.W.2d 515, no writ; Cunningham v. Texas Employers Ins. Ass’n, Tex.Civ.App., 363 S.W.2d 880, writ ref’d n. r. e. The rule in this line of cases has no application in cases involving the nature, origin and aggravation of cancer.

In Insurance Co. of North America v. Myers, 411 S.W.2d 710 (1966), the Supreme Court held that whether or not a pre-existing tumor was activated and the deadly effects of a malignancy accelerated by an injury, was a question of science determinable only from the testimony of expert medical professionals. It was further held that causal connection in such a fact situation must rest in reasonable probabilities. The Court expressly noted and distinguished the decisions in workmen’s compensation cases in medical situations not involving the highly uncertain medical problems of the nature, origin and aggravation of cancer.

Two doctors were called by appellant and they negated any relationship between the cancer and appellee’s injury on February 23, 1965. Dr. Timmons, who had treated appellee from the time of the injury until after the malignant tumor in his lung was removed, testified that the cancer of the lung pre-existed the injury and was not aggravated by it. He further testified that appellee was able to return to his regular duties in April, 1965, and that at the time of the trial appellee’s only incapacity was caused by the loss of one lung. Dr. Jones, a radiologist, testified also that the malignant tumor in appellee’s lung existed prior to February 23, 1965, and was not aggravated by the trauma on that date.

There is no proper medical evidence in the record to connect the cancer of the lung with the injury of February 23, 1965. We cannot say, however, that the record when examined under the “no evidence” test establishes as a matter of law that all of appellee’s incapacity after either April 12, 1965, or September 24, 1965, was solely caused by the cancer of his lung. An employee is entitled to compensation for an injury received in the course of his employment, regardless of the fact that he may have been suffering from a disease which contributed to the incapacity from said injury. Sowell v. Travelers Ins. Co., 374 S.W.2d 412 (Tex.1963); Texas Employers Ins. Ass’n v. Beard, Tex.Civ.App., 390 S.W.2d 59, writ ref’d n. r. e.; Traders & General Ins. Co. v. Belcher, Tex.Civ.App., 152 S.W.2d 525, writ ref’d w. o. m.

It is, therefore, our opinion that appellant’s requested issues on sole cause should have been determined by the jury. The trial court erred in refusing to submit said issues and this error was such as to require a new trial. Rule 434, Texas Rules of Civil Procedure.

In view of a remand of the case, it is unnecessary to determine if reversible error is shown by the submission of only undisputed facts in the first four issues. It suffices to state that the trial court is directed under our rules of procedure to submit only controverted questions of fact as made by the written pleadings and the evidence. Rules 272, 279, T.R.C.P. The submission must be in such manner as to fairly submit the issues made by both parties. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651-(1952).

The judgment of the trial court is reversed and the cause remanded to the trial court for trial on the merits.

      .Verdict of the jury:
      1. Gallegos sustained an injury on February 23, 1965, while working for Alamo Junk Company.
      2. Such injury caused or contributed to cause incapacity to work.
      3. Such incapacity was a total incapacity.
      4. Such total incapacity began on February 23, 1965.
      5. Such total incapacity is permanent. 6-13. Conditionally submitted on finding of “temporary” and answered.
      14. Reasonable and necessary medical expenses incurred by Gallegos up to time of trial as result of his injuries on February 23, 1965, which have not been paid by defendant are $1,368.39.
      (It was stipulated that all these expenses relate to his hospitalization in September — October, 1965, when the lung was removed.)

      . Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959).


text:
    Robert H. RICE, Appellant, v. Danny FORESTIER, Appellee.
    No. 14576.
    Court of Civil Appeals of Texas. San Antonio.
    April 12, 1967.
    Rehearing Denied May 10, 1967.

      Sam J. Dotson, John W. Bell, San Antonio, for appellant.
    Chapin, Narciso & Cameron, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an action for legal malpractice. This suit was filed by appellee, Danny For-estier, to recover damages sustained by him as a result of a default judgment taken against him in a suit for debt filed in Jefferson County, Texas, by the Standard Brass & Manufacturing Co. Judgment was herein rendered in the sum of $1,250.00, based upon jury findings that appellant, Robert H. Rice, Esq., negligently failed to advise appellee, within a reasonable time after receipt of the suit papers, that Rice would not act as Forestier’s personal attorney in the Standard Co. suit, and that this negligence was a proximate cause of appellant’s monetary loss of $1,250.00.

Appellant urges fifteen assignments of error, which may be grouped under two basic propositions. First. Since the jury found that Forestier did not employ Rice to act as his personal attorney in the Standard Co. suit there is no basis for liability against Rice. This proposition is based on an alleged lack of pleadings to support a judgment against Rice under the negligence theory, as well as a lack of duty on the part of Rice necessary to support the finding of negligence. Second. There is no evidence of probative force to support the jury finding that Forestier had a meritorious defense to the Standard Co. suit.

In his petition Forestier alleged Rice negligently breached his contract of employment with Forestier in that Rice (1) failed to file a legal answer in the Standard Co. suit, and (2) failed to advise Forestier that Rice was not going to act as the latter’s attorney in this suit, so that Forestier could secure other counsel to protect his interests. Although both allegations have reference to a “contract of employment,” the second allegation presents an alternative cause of action which of necessity would be based upon Rice’s decision not to accept a contract of employment. It is our opinion that in the absence of a special exception, this allegation is sufficient to give appellant fair notice of this alternative claim. Rules 47, 48, Texas Rules of Civil Procedure. In any event, Rice waived any defect in this pleading by his failure to object to the submission of this theory to the jury. Rule 274, T.R.C.P.; Turner v. Turner, Tex.Civ.App., 384 S.W.2d 195, no writ; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, writ ref’d.

The question under the first proposition is therefore narrowed to whether or not Rice owed such a duty to Forestier so as to support the jury’s finding of negligence. The Standard Co. suit was in the form of a sworn account brought against Forestier Sheet Metal, Inc., and Danny Forestier. There was no such corporation in existence, although prior to 1961, when Forestier had incorporated the family business under the name of Forestier, Inc., he and his mother did business as Forestier Sheet Metal. Both citations were served upon Forestier on December 17, 1964, and were returnable on or before January 11, 1965. No answer was filed, and default judgment was entered on January 13, 1965, against Forestier Sheet Metal, Inc. and Danny Forestier, jointly and severally, for the debt of $1,499.37, plus attorney’s fees of $500.00.

On December 17, 1964, Rice was representing Forestier in a voluntary bankruptcy proceeding filed on behalf of Forestier, Inc., which was not concluded until January 19, 1965. Rice had also handled at least two other legal matters for Forestier and his wife, personally. One of these other matters was not concluded until the summer of 1965. On these occasions statements for services and expenses were sent to Forestier by Rice, from time to time, and paid by Forestier.

There is a conflict in the testimony as to whether or not Forestier delivered the citations in the Standard Co. suit to Rice personally. Forestier testified that he did so and that Rice said he would take care of the matter. Rice denied receiving the papers from Forestier or even discussing the same with him, and testified that Forestier’s wife left the citations in Rice’s office with the latter’s secretary. In any event, there is no testimony that Rice ever declined to represent Forestier in this or any other matter until after the judgment was taken. The record is undisputed that Rice knew the citations were in his office, in that a plea of privilege was there prepared on behalf of Forestier, Inc., together with a transmittal letter to the District Clerk of Jefferson County, dated December 22, 1964. Rice testified that these instruments were prepared by his secretary, and when she showed them to him he told her that since the corporation was in bankruptcy there was no need to file them. The secretary was directed by Rice to place the papers in a file where they remained until about August, 1965, when the file was delivered to another attorney who was employed by Forestier in a futile effort to avoid a judicial sale of Forestier’s land under execution issued on the Standard Co. judgment. This attorney testified that he received two citations from Rice’s file, one addressed to Forestier Sheet Metal, Inc., and the other to Forestier individually.

It is our opinion that under this record Rice owed a duty to inform Forestier that Rice was not going to file an answer for Forestier. In view of the fact that Rice was handling other matters for Forestier at this time, Forestier was justified in leaving the citations with Rice or his secretary. Rice admits he saw at least one of the citations and petitions and is thereby charged with knowledge of the contents of same. Rice certainly had the right to decline to represent Forestier in this matter if he chose to do so. In such event, however, he would have been obligated to inform Forestier of this decision. The jury was justified in concluding that Rice was negligent in failing to advise Forestier of his refusal to handle the case in order that Forestier could timely secure other counsel. We, therefore, overrule appellant’s first proposition.

In order for this negligence to result in a monetary loss to Forestier and support a recovery for same against Rice, it was necessary that Forestier establish that he had a meritorious defense to the suit filed by Standard Co. 45 A.L.R.2d, Annotation: Attorneys — Negligence—Liability, § 9, p. 30; Roehl v. Ralph, 84 S.W.2d 405 (Mo.Ct. of App.); Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir.Md.) ; Martin v. Nichols, 110 Wash. 451, 188 P. 519 (1920). Appellant urges that since the Standard Co. suit is on a sworn account and Forestier admitted that he received the goods, he has no meritorious defense. Rice urges that there is no evidence to support a finding by the jury that Forestier had such a defense to the Standard Co. suit.

Forestier testified that the goods were actually received and used by Fores-tier, Inc., and in fact this debt was one of those which were to be discharged by the bankruptcy court. He testified that longtime creditors of the business sometimes carried the corporation’s account in the name of “Forestier Sheet Metal” as it had formerly been known. It is seen that two invoices are attached to the Standard Co. petition; one in the amount of $655.17 is charged to “Forestier, Incorporated,” and the other in the amount of $884.20 is charged to “Forestó^ Sheet Metal, Inc.” Both are addressed to the same address. This testimony supports the jury finding of a meritorious defense in that Forestier would not be personally liable if this debt were that of the corporation. It necessarily follows that the failure to file an answer to the suit on behalf of Forestier personally resulted in a default judgment being taken against him.

When the record is examined under the “no evidence” test as required by appellant’s points, there is evidence to support the verdict of the jury that Rice was negligent in failing to timely advise Forestier that Rice was not going to act as Forestier’s personal attorney in the Standard Co. suit, and that this negligence was a proximate cause of the monetary loss sustained by Forestier by reason of the default judgment taken against him in a suit where he had a meritorious defense. 7 Am.Jur.2d, Attorneys at Law, § 171.

The judgment is affirmed.

      . Rice was working on an oil deal for Mr. and Mrs. Forestier, a Mr. Clark and a Mr. Zahn. On January 13, 1965, an argument occurred in Rice’s office among these parties regarding the oil deal and Rice advised all that he would not represent any of these parties individually on this oil deal.

      . Calvert’s “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 364.


author: WERLEIN, Justice.

text:
    Antonio BARRIOS et ux., Appellants, v. Dewey Sampson DAVIS, Appellee.
    No. 14983.
    Court of Civil Appeals of Texas. Houston.
    May 18, 1967.

      James C. Brady, Houston, for appellants.
    Alice Giessel, Houston, Talbert, Giessel, Barnett & Stone, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by appellants, Antonio Barrios and wife against Dewey Sampson Davis to recover damages for personal injuries and damage to their station wagon. On the jury verdict the court entered judgment that appellants take nothing.

Appellants assert that the trial court erred in refusing to admit in evidence the testimony of appellee with respect to an alleged plea of guilty to the offense of negligent collision in the Corporation Court of the City of Houston in connection with the collision made the basis of the present suit, and also in excluding the testimony of one James C. Pittman, an officer of said court, concerning the alleged entry of ap-pellee’s plea of guilty or that of his wife. The case is before us with only a partial statement of facts and a supplemental partial statement of facts. Appellants called appellee as an adverse witness and the latter testified out of the presence of the jury. The parties stipulated as follows with respect to his testimony:

“The defendant, Dewey Sampson Davis, testified that as a result of the collision in question, he was issued a ticket by the Houston Police Department, charging him with the offense of Negligent Collision. That he did not appear in person in court, but had his wife go down to the Corporation Court and Paid $25.00 in cash for him.”

James C. Pittman, called as a witness by appellants, testified:

“THE WITNESS: My name is James C. Pittman and I am a city auditor for corporation court and have been since May 24, 1965. As such I am responsible to the clerk of the court for security of cash as well as legal documents held by the Court. Such documents are under my supervision.
“Plaintiffs’ exhibit 2 is a complaint drawn against Dewey Sampson Davis, white, male, sixty-one years of age, and exhibit 3 is a citation issued to the same person on May 5, 1964. Exhibits 2 and 3 are certified by a deputy clerk. This complaint was paid on May 11,1964. The acceptance of cash for the satisfaction of a fine is a plea of guilty. This was paid in person by cash.”
CROSS EXAMINATION BY MR. GIESSEL
* ⅜ ‡ * % ⅜
“THE WITNESS: The records show that cash was paid and accepted by somebody and does not show any plea, only the acceptance of $25 in cash.”

The trial court did not err in excluding the foregoing testimony from the jury. It is true that where a defendant appears in person and pleads guilty to the negligent acts charged against him, his plea of guilty is admissible as an admission in a civil suit brought to recover damages resulting from such negligent acts. Canales v. Bank of California, 316 S.W.2d 314, Tex.Civ.App.1958, writ ref., n. r. e.; Fisher v. Leach, 221 S.W.2d 384, Tex.Civ.App. 1949, writ ref., n. r. e.

Article 27.14, formerly Article 518, Vernon’s Annotated Code of Criminal Procedure, provides that a plea of “guilty” or a plea of “nolo contendere” in a misdemeanor case may be made either by the defendant or his counsel in open court. In the instant case there was no plea of guilty by appellee or his counsel. There was no plea whatever by anyone. The payment of the $25.00 fine by appellee’s wife did not constitute a plea of guilty. Prior to 1965, and at the time of the accident in question, payment of a fine did not constitute a finding of guilty in open court as though a plea of nolo contendere had been entered by the defendant, as it now does. Even had there been a plea of guilty it would not have been admissible in this civil suit unless made in accordance with law. Johnson v. Woods, 315 S.W.2d 75, Tex.Civ.App.1958, writ ref., n. r. e.; Sherwood v. Murray, 233 S.W.2d 879, Tex.Civ.App., no writ history; Bowie v. Harris, 351 S.W.2d 668, Tex.Civ.App.1961, writ ref., n. r. e.; Mooneyhan v. Benedict, 284 S.W.2d 741, Tex.Civ.App., writ ref., n. r. e.

Appellants assert that the court erred in permitting appellee’s counsel, over their objections and exceptions, to interrogate appellants’ doctor, one Dr. Brown, with respect to the number of cases he had testified in, the counties where such cases were tried, the fees which he charged, the amount collected by him in one year from lawyers in cases referred to him by lawyers, and that he was well known as a doctor who testified in court on behalf of injured people. We are of the opinion that the court did not commit any reversible error in permitting appellee’s counsel to ask such questions and to solicit answers thereto. The law is well settled that on cross-examination a witness may be questioned as to facts or acts tending to show bias, interest, or prejudice, and that questions relative to interest, bias or prejudice are never collateral or immaterial, and further that in the use of cross-examination to show interest or bias or prejudice the greatest latitude is allowed, the scope in any particular instance being a matter largely within the discretion of the trial court. McCormick & Ray, Texas Law of Evidence, Vol. 1, pp. 521-522, Sec. 679; Horton v. Houston & T. C. Ry. Co., 46 Tex.Civ.App. 639, 103 S.W. 467, Tex.Civ.App.1907, error ref.; Traders & General Insurance Co. v. Robinson, 222 S.W.2d 266, Tex.Civ.App. 1949, writ ref.; Martin v. Liberty Mutual Insurance Company, 388 S.W.2d 27, Tex.Civ.App.1965, writ ref., n. r. e.

Furthermore, since the case is before us without a complete statement of facts, it is impossible for this Court to say that the error of the court, if such there was, was calculated to cause and probably did cause the rendition of an improper verdict or judgment. Rule 434, Texas Rules of Civil Procedure. City of Austin v. Cannizzo, Tex.Sup.1954, 267 S.W.2d 808; Duin v. King, 317 S.W.2d 236, Tex.Civ.App.; Klimist v. Bearden, 374 S.W.2d 783, Tex.Civ.App.; Martin v. Liberty Mut. Ins. Co., 388 S.W.2d 27, Tex.Civ.App.1965, writ ref., n. r. e.

Judgment affirmed

COLEMAN, J., not sitting.


author: PER CURIAM.

text:
    ALAMO FEDERAL CREDIT UNION, Appellant, v. Jesse CELEDON et al., Appellees.
    No. 14606.
    Court of Civil Appeals of Texas. San Antonio.
    April 26, 1967.
    Rehearing Denied May 24, 1967.
    Terrell McKay, San Antonio, for appellant.
    Levey & Goldstein, Peops S. Dounson, San Antonio, for appellees.
   PER CURIAM.

Appellees have filed a motion to affirm the judgment in this case on certificate or dismiss the appeal because the transcript was not filed within sixty days from the time appellant’s motion for new trial was overruled by operation of law. The question presented is whether the time for filing the record under Rule 386, Texas Rules of Civil Procedure runs from that time, where the trial court signed an order overruling said motion after the expiration of forty-five days from the filing of the motion.

Appellant’s motion for new trial was filed on November 23, 1966, heard by the court on December 27, 1966, and overruled by an order signed on January 20, 1967. A cash deposit in lieu of an appeal bond was filed on February 6, 1967. The record was filed in this Court on March 17, 1967.

Rule 329b, T.R.C.P., provides that all motions for new trial “must be determined within not exceeding forty-five (45) days after the original * * * motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement.” There was no such written agreement of the parties postponing the decision in this case. The forty-five day period expired on January 7, 1967, however, inasmuch as this was Saturday, the time was extended until January 9, 1967. Rule 4, T.R.C.P.; Missouri-Kansas-Texas R. Co. v. Chesher, Tex.Civ.App., 354 S.W.2d 645, writ ref’d n. r. e.

It is settled that where no order overruling a motion for new trial is signed by the trial court prior thereto, the motion is overruled by operation of law forty-five days after it is filed, and any order entered thereafter purporting to overrule said motion is a nullity. Washington v. Golden State Mutual Life Ins. Co., Tex.Civ.App., 405 S.W.2d 856, writ ref’d, 408 S.W.2d 227 (Tex.Sup.1966); Nickel v. Anderson, Tex.Civ.App., 399 S.W.2d 220, no writ; Rainey v. Isenberg, Tex.Civ.App., 349 S.W.2d 733, no writ; Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725, writ ref’d.

The filing of the record within sixty (60) days, or the timely filing of a motion for an enlargement of such time, as required by Rule 386, supra, is mandatory and jurisdictional. Angelina County v. McFarland, 374 S.W.2d 417 (Tex.Sup.1964); Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Nickel v. Anderson, supra; Rainey v. Isenberg, supra; Newsfoto Pub. Co. v. Ezzell, Tex.Civ.App., 320 S.W.2d 711, writ ref’d; Tydlacka v. Tydlacka, Tex.Civ.App., 277 S.W.2d 159, no writ; Bowman v. Traders & General Ins. Co., Tex.Civ.App., 219 S.W.2d 148, writ ref’d.

It is seen that the record was here filed, through inadvertence, sixty-seven days after appellant’s motion for new trial was overruled by operation of law. Such filing was not authorized under Rule 386, supra, and this Court’s jurisdiction is limited to affirming the judgment on certificate under Rule 387, T.R.C.P., or dismissing the appeal.

The judgment is affirmed on certificate.


author: MASSEY, Chief Justice.

text:
    L. O. GOTHARD, Appellant, v. T. B. SAUNDERS, Appellee.
    No. 16830.
    Court of Civil Appeals of Texas. Fort Worth.
    May 12, 1967.
    Rehearing Denied June 9, 1967.

      James N. Adams, Houston, for appellant.
    Fannin & Fannin and Oliver W. Fannin, Jr., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Texas Rules of Civil Procedure 93 “Certain Pleas To Be Verified”, (succeeding Article 2010 R.C.S. of Texas, 1925) provides: “A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

« * * *

“(h) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. * * * In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.”

The question posed by the appeal is whether the trial court properly acted in receiving into evidence as fully proved, the note tendered by plaintiff upon which the suit was founded when no proof was offered to establish that it was the genuine instrument upon which plaintiff had founded his suit. The objection of the defendant, made at time such was offered into evidence, contended inadmissibility because there had been no proof that it was the same note sued upon.

At the beginning of the trial the attorney for plaintiff had the instrument in question marked as “Plaintiff’s Exhibit No. 1”, and addressing the court, stated: “If the Court please, the plaintiff introduces in evidence the note sued upon, dated October 2, 1963, in the amount of $280,195.22, and executed by the defendant, payable to the order of the plaintiff in Forth Worth, Texas.” Objection was then made by the attorney for the defendant. Such objection was overruled. Plaintiff then rested. Defendant rested without tendering evidence. The court granted plaintiff’s motion for an instructed verdict. The judgment thereupon predicated was for the balance due and owing upon the indebtedness reflected by the face of the instrument, plus legal interest to date, with 10% attorney fees on the balance of principal and interest.

Language from plaintiff’s pleadings purported to describe the written instrument upon which suit was founded, as follows: “For a valuable consideration, on October 2, 1963, Defendant, L. O. Gothard, doing business as L. O. Gothard Cattle Co., executed and delivered to Plaintiff his certain promissory note in the amount of $280,195.-22, payable to the order of Plaintiff ninety days after date at Fort Worth, Texas, with six per cent, interest per annum from date until paid. Said note also provides that if it be placed in the hands of an attorney for collection or suit be brought thereon that Defendant would pay an additional amount of ten per cent, on the principal and interest then due as attorneys’ fees.”

The instrument tendered reflected every provision stated in the language above quoted from the pleadings of plaintiff. Quotation in the pleadings, however, was not identical to the language appearing on the face of the note, i. e., in haec verba. Pleadings of plaintiff did not have attached thereto as an exhibit the note or a copy thereof. Plaintiff’s pleadings were not verified.

Defendant bases his contention that the instrument tendered was not inadmissible as evidence upon statements made of the law as applied to instances where a plaintiff seeks judgment in his favor through use of a motion for summary judgment. See T.R. C.P. 166-A, “Summary Judgment”. He quotes from the article by Judge Stayton, 13 Texas Bar Journal, pp. 93-4, as follows : “The plaintiff need only show under oath that he is the legal holder — indeed producing the note — and that will be all there is to it.” Then he quotes from case authority what we consider to be correct law as applied to summary judgments; viz.: “In the summary judgment proceeding, ap-pellee could have discharged its burden without producing and introducing the original note under Rule 166-A(e) T.R.C.P. by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit. Without such proof, an unsworn pleading will not support a summary judgment.”

But the proceedings in the trial court were upon the merits. Because thereof the reasoning of the defendant is without application. The authorities upon which the defendant relies bear upon the manner of presenting a prima facie case for the plaintiff on his motion for summary judgment. They are not controlling upon a trial on the merits.

Since the days when Texas first became a state there has been no substantial change in the law relative to proper procedure to prove an instrument in writing upon which a plaintiff’s suit is founded in instances where there has been no verified denial by the defendant. See Acts 1st Leg. p. 363, “An Act To Regulate Proceedings in the District Courts”, Sec. 52 at p. 375. Without material change the law has persisted. In T.R.C.P. 93(h) the last sentence has been added to provisions which have ever been the law. That sentence reads: “In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.” The law has not been changed by reason of the addition of such sentence, but rather reflects the law under rule of decisions. See Fulshear v. Randon, 18 Tex. 275 (1857); Prince v. Thompson, 21 Tex. 480 (1858); Close v. Judson, 34 Tex. 288, 289 (1871).

Furthermore, it is not necessary that the plaintiff’s petition set out the writ-tent instrument sued upon in haec verba to authorize its reception into evidence without further proof that it was the identical instrument upon which suit was founded. Sufficient predicate for its reception in evidence, as that upon which plaintiff had declared, was existent because the substance and legal effect thereof conforms to that of the written instrument as pleaded. Cases in 30 Texas Digest, “Pleading”, ^32, “Pleading written instruments”; McDonald Texas Civil Practice, p. 662, “Pleading: Answer”, Sec. 7.29, “ * * (d) Execution of Instrument”; 9 Tex.Jur.2d p. 293, “Bills and Notes”, Division D., “Evidence”, Sec. 271, “ * * * Execution of instrument”.

In the instant case it is obvious that the true and legal import and effect as a whole of the instrument offered into evidence fitted the language by which it was pleaded in plaintiff’s petition. Defendant’s pleading in response thereto was not verified by affidavit. The trial court did not err in receiving the instrument. Note is taken of the fact that there had been no transfer or assignment. The parties to the suit were those same parties who originally contracted, as evidenced by both the pleadings and the instrument itself.

Judgment is affirmed.


author: STEPHENSON, Justice.

text:
    S. D. ENLOE et al., Appellants, v. Mrs. Audrey BARFIELD et vir, Appellees.
    No. 6906.
    Court of Civil Appeals of Texas. Beaumont.
    May 18, 1967.
    Rehearing Denied June 7, 1967.
    Benckenstein & Norvell, Beaumont, for appellants.
    Alvis S. Ellisor, Cleveland, J. C. Zbranek, Liberty, for appellees.
   STEPHENSON, Justice.

This is an action for damages arising out of an automobile collision. Trial was by jury and judgment was rendered for plaintiff against defendant Gerald Enloe, disregarding the answers of the jury to two of the special issues. The parties will be referred to here as they were in the trial court.

Plaintiffs sued two defendants, S. D. Enloe and Gerald Enloe. It is alleged that Gerald Enloe was driving the automobile which collided with the automobile driven by plaintiff Audrey Barfield, and that plaintiffs were damaged by reason of negligence on the part of Gerald Enloe which proximately caused such damages. Plaintiffs also alleged that Gerald Enloe was a minor and that a guardian ad litem should be appointed to represent him. The judgment of the trial court is that plaintiffs recover nothing as to defendant S. D. Enloe.

Defendant has a point of error that no guardian ad litem was appointed by the court to represent the minor defendant, Gerald Enloe. The evidence shows that Gerald Enloe was 18 years old at the time this case was tried. The record before us does not indicate that a guardian ad litem was appointed and it is not shown that Gerald Enloe had a guardian.

Rule 173, Texas Rules of Civil Procedure, provides that a court shall appoint a guardian ad litem for a minor defendant having no guardian. The courts of this state have held that the word “shall” is mandatory. Jaynes v. Lee, Tex.Civ.App., 306 S.W.2d 182. It has uniformly been held that it is error to grant a judgment against a minor defendant under these circumstances, with one exception. This case, Vaughan v. Renshaw, Tex.Civ.App., 411 S.W.2d 57, has been cited by plaintiffs, as holding that no harm has been shown, and also that this matter must have been raised in the trial court by verified pleadings. The Supreme Court of Texas granted a writ of error in this case May 3, 1967. We hold the trial court was in error in not appointing a guardian ad litem to represent Gerald Enloe. For this reason, this case must be reversed.

We next consider defendant’s points of error in reference to the action of the trial court in disregarding two of the issues found by the jury. The jury found that defendant failed to keep a proper lookout, failed to make timely application of the brakes, operated his automobile at an excessive rate of speed and that each was a proximate cause of the collision. The jury also found that plaintiff kept a proper lookout, was not making a u-turn, did not suddenly stop and did not fail to signal. The two issues made the basis of these points of error are the findings that plaintiff was negligent in stopping where she did and that such negligence was a proximate cause of the collision.

The evidence shows that both plaintiff and defendant were traveling in a northerly direction on Highway 59 in the city limits of Cleveland, Texas. This highway has six lanes divided by an esplanade, and both plaintiff and defendant were driving in the inside lane, with plaintiff in front. As plaintiff came to the intersection with Taylor Street she brought her car to a stop. Taylor Street intersects from the east, but does not continue to the west. There is a break in the esplanade at this intersection, but no turning lane. As plaintiff brought her car to a stop she turned to the left to bring a portion of the car into the opening of the esplanade, but such opening was not wide enough and part of her automobile remained extending into the lane in which she had been traveling. Plaintiff intended to make a left turn, which would have resulted in a u-turn and stopped her car to allow automobiles traveling in a southerly direction on Highway 59 to pass the intersection. Defendant’s automobile collided with the rear end of plaintiff’s automobile. This collision occurred at night. There is no evidence that this intersection was controlled by signal lights or signs of any kind. There was a turning lane at the next intersection toward which the automobiles were traveling, and at other points on Highway 59.

Plaintiff testified that a block south of the intersection at which the collision occurred she put on the indicator light flashing a left turn, looked behind her and saw some lights over a block away in the same lane. She testified she had been stopped 10 or 15 seconds before her car was struck. Defendant testified: That he saw the car in front of him slowing down, so he slowed down. That he did not see a turn signal. That he was about a car’s length behind plaintiff when she stopped. That he intended to pass on the right but a car was in that lane coming up behind him.

The jury having found no negligence on the part of plaintiff in the manner in which she brought her car to a stop and as to the lookout she kept, and these findings not having been challenged, we find no violation of a duty to defendant, on plaintiff’s part, not to bring her car to a stop at the place she did. Further, we find no evidence to support the finding of the jury that plaintiff’s stopping where she did was a proximate cause of the collision. The trial court properly disregarded these answers of the jury. In arriving at this conclusion we considered only the evidence favorable to the party against whom the trial court ruling was made. Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435; Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560.

Reversed and remanded.


author: DAVIS, Justice.

text:
    Virgil D. MORGAN, Appellant, v. SAVOY INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 7849.
    Court of Civil Appeals of Texas. Texarkana.
    April 4, 1967.
    Oían R. Van Zandt, Sherman, for appellant.
    Edward Southerland, Cunningham, Cole & Southerland, Bonham, for appellees.
   DAVIS, Justice.

HISTORY

On January 8, 1962, the Savoy Independent School District, acting by and through its Board of Trustees, O. L. Burris, W. S. Steedman, Leon Hughes, Billy C. Wrenn, Galion Moore, Fred Merworth and Eugene F. Hensley, entered into a contract in writing with Virgil D. Morgan as school superintendent for three years beginning on July 1, 1962. On July 31, 1963, the Board of Trustees removed, or fired, Morgan as school superintendent. On April 21, 1965, the Board of Trustees held another meeting and decided to pay to Morgan the sum of $1,905.00. The School District and Morgan appealed this decision to the district court. The school district alleged that it did not owe Morgan anything and prayed that he take nothing. Morgan answered and filed a cross action and alleged that the school district was indebted to him in the sum of $4,504.80, and in the alternative, that the school district owed him the sum of $1,905.00.

The case went to trial before the court on May 31, 1966. After all the evidence was in, the trial court took the case under advisement. On August 18, 1966, the court made findings of fact and conclusions of law in favor of the plaintiff and cross-defendant, and that the defendant and cross-plaintiff should take nothing. On September 9, 1966, the trial court signed and entered a judgment to this effect. In the judgment the defendant and cross-plaintiff excepted and gave notice of appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas. On October 6, 1966, Morgan filed an appeal bond in the sum of $1,105.90 with Lawyers Surety Corporation as surety and which was approved by the district clerk.

On November 8, 1966, Morgan filed an agreed motion for extension of time in which to file the transcript and statement of facts in the Court of Civil Appeals. This Court granted the motion to extend the time for 30 days, which expired on or about December 8, 1966. On December 9, 1966, the transcript and statement of facts were received by the Clerk of this Court. After due notice, no further motion for extension of time was filed by Morgan. On February 23, 1967, Savoy Independent School District, et al, filed a motion to affirm on certificate, to which motion was attached a certified copy of the judgment appealed from and of the appeal bond that was duly approved by the District Clerk. All this was done under the certificate of the District Clerk. Rule 387, Texas Rules of Civil Procedure. The motion was set for hearing, and notice thereof was given as required by Rule 387(d), T.R.C.P. No further action has been taken by Morgan.

Since the time to file the transcript and statement of facts has expired, the motion to affirm on certificate must be granted. Rule 387, T.R.C.P. Since the appeal bond is accompanied by such certificate the judgment must be rendered against the Lawyers Surety Corporation. Jones v. Banks, (Tex.Civ.App., 1960) 331 S.W.2d 370, n.w.h.

The motion to affirm on certificate is granted, including a judgment against Lawyers Surety Corporation as surety on Morgan’s appeal bond.

Judgment affirmed on certificate.


author: RENFRO, Justice.

text:
    Henrietta SANDS, Appellant, v. William H. JONES et ux., Appellees.
    No. 16833.
    Court of Civil Appeals of Texas. Fort Worth.
    May 19, 1967.

      Touchstone, Bernays & Johnston, and W. Richard Bernays, Dallas, for appellant.
    Sewell & Forbis, and James E. Forbis, Decatur, for appellees.
   OPINION

RENFRO, Justice.

Plaintiffs William H. Jones and wife filed suit in Wise County against Henrietta Sands, a feme sole, for damages growing out of a collision between plaintiffs’ pickup truck and defendant’s automobile.

Defendant filed a plea of privilege asking that the case be transferred to Wichita County, the County of her residence.

Plaintiffs claimed venue in Wise County under Sections 9 and 9a of Article 1995, Vernon’s Ann.Civ.St.

The plea of privilege was overruled.

Defendant in three points of error claims there was no evidence, and insufficient evidence, to support the court’s judgment, or that the judgment was against the overwhelming weight and preponderance of the evidence.

The plaintiff Jones testified he was traveling south in the west lane of a divided highway at a speed of thirty-five or forty miles per hour when he saw defendant’s car, also traveling south, to his left over on the grass just before the impact.

Evidence as to skid marks of the cars and the path of defendant’s car leading up to the point of impact was given by the investigating Highway Patrolman. He estimated defendant’s speed, from such observation and measurements, to have been seventy miles an hour.

The defendant offered no evidence.

The evidence concerning the collision was so similar to the evidence in Austin Road Co. v. Willman, 303 S.W.2d 878 (Tex.Civ.App., 1957, no writ hist.), that without further discussion we hold the law as set out in said case is applicable to the instant case and that the evidence was sufficient to raise issues as to one or more of the eighteen acts of negligence plead by plaintiffs.

Paragraph 3 of Section 9a provides, however, that plaintiff must establish that “such negligence (if paragraphs 1 and 2 are established) was a proximate cause of plaintiff’s injuries.”

There is no direct evidence in the record that either plaintiff sustained any personal injury or that their automobile was damaged.

Plaintiff Jones testified at the hearing but he gave no testimony bearing on injuries or damage.

The patrolman did not testify to any automobile damage. He testified that plaintiffs had left the scene in an ambulance before he arrived, and that later he saw the plaintiffs at the hospital. He did not testify as to any injuries sustained by them.

We hold plaintiffs failed to meet the requirements of paragraph 3. Bond v. Veale, 361 S.W.2d 626 (Tex.Civ.App., 1962, dism.); Saenz v. Hinojosa, 268 S.W.2d 476 (Tex.Civ.App., 1954, no writ hist.).

It is readily apparent the facts concerning injuries were not fully developed. Therefore, rather than reverse and render, as requested by defendant, we reverse and remand so that the venue question can be retried. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (1936).

Reversed and remanded.


author: DENTON, Chief Justice.

text:
    Robert T. GABEL, Appellant, v. BLACKBURN OPERATING CORPORATION, Appellee.
    No. 7718.
    Court of Civil Appeals of Texas. Amarillo.
    May 8, 1967.
    Rehearing Denied June 5, 1967.

      John W. Warner, Pampa, for appellant.
    Kolander & Templeton, Amarillo, J. M. Kolander, Amarillo, of counsel, for appellee.
   DENTON, Chief Justice.

This is a venue case. Blackburn Operating Corporation filed suit against Lois Ann Gabel and Robert T. Gabel on a sworn account for merchandise sold and delivered to the defendants. No answer was filed by Mrs. Gabel. Mr. Gabel filed a plea of privilege and a sworn denial. Plaintiff controverted Gabel’s plea of privilege and relied upon Subdivision 4 of Article 1995, Vernon’s Ann.Civ.St. The trial court overruled the plea of privilege and Robert Gabel has appealed.

Although Mrs. Gabel filed no answer she was subpoenaed by appellee and testified at the hearing. The debt was incurred at the time Robert and Lois Gabel were husband and wife, but living apart. She testified she purchased the merchandise from appellee while married to Robert Gabel and such purchases were made with his permission; and confirmed she was a resident of Potter County at the time the suit was filed.

Subdivision 4 of Article 1995 provides that where there are resident and nonresident defendants, suit may be maintained in any county where one of the defendants reside. In order to maintain venue in the county of the resident defendant: (1) plaintiff must allege and prove a cause of action against the resident defendant; (2) plaintiff must allege a joint cause of action against the nonresident defendant. Stockyard National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Pittsburgh Plate Glass Co. v. Bragg (Tex.Civ.App.) 383 S.W.2d 623 (Writ Dis.). Serv-All Co. v. Minatra (Tex.Civ.App.) 397 S.W.2d 467.

Appellant first contends the trial court erred in overruling his plea of privilege because the evidence was insufficient to prove a cause of action against the resident defendant. The failure of the resident defendant, Lois Ann Gabel, to file a sworn denial of plaintiff’s verified account amounts to an admission that the account is correct. Walker-Neer Machine Co. v. Acmeline Mfg. Co. (Tex.Civ.App.) 279 S.W.2d 156 (Ref.N.R.E.). Dyche v. Simmons (Tex.Civ.App.) 264 S.W.2d 208 (Ref.N.R.E.). Rule 185, Texas Rules of Civil Procedure. But in the absence of the provisions of Rule 185, the testimony of Mrs. Gabel herself is sufficient to support the trial court’s order. Her admissions amply sustain the burden of plaintiff to prove a cause of action against her, and that she was a resident of Potter County. Wilson v. Clarke Floor Machine Co. (Tex.Civ.App.) 380 S.W.2d 768. Davis v. Gilmore (Tex.Civ.App.) 244 S.W.2d 671 (Writ Ref.).

Appellant’s contention there was insufficient evidence to prove a cause of action against appellant, the nonresident, is without merit. Appellee had no burden to prove a cause of action against the nonresident defendant under Subdivision 4. Stockyards National Bank v. Maples (supra). Smiser v. Petroleum Refining Co. (Tex.Civ.App.) 398 S.W.2d 177. The nonresident may be held if there is a joint cause of action alleged or if the cause against a resident grows out of the same transaction and if so connected with the cause of action against the nonresident that the two should be joined in order to avoid a multiplicity of suits. Shell Oil Co. v. Greenburg (Tex.Civ.App.) 380 S.W.2d 758.

The pleadings alleged the merchandise was sold to the “defendants” at their special instance and request; that they thereby became bound to pay appellee for said merchandise; and that in spite of repeated requests the defendants have not paid the sum of money due and owing. Since appellee proved a cause of action against the resident defendant and the pleadings assert a joint cause of action against appellant, the nonresident, the trial court properly overruled appellant’s plea of privilege.

The judgment of the trial court is affirmed.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Joseph EYE, Appellant.
    No. 52254.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Robert A. Mcllrath, Flat River, for appellant in Circuit Court. No brief filed in Supreme Court. Case taken as submitted.
   WELBORN, Commissioner.

Joseph Eye appeals from a judgment and sentence, under the Habitual Criminal Act, of five years’ imprisonment for stealing a cow.

Sixteen-year-old Dennis Fitzwater, as a witness for the state, testified that he, the appellant and appellant’s brother, Marvin Eye, were driving around the open range country in Washington County on September 22, 1965, looking for “some pork to butcher.” They saw some Angus cattle. Joe shot at one in the road with a pistol, hitting the animal, but it only “staggered and ran off.” Subsequently, at around noon, they came across an Angus cow, Marvin shot the cow. Joe, who had been asleep in the back seat, went with Marvin to where the animal had fallen. When it started bawling, Joe and Marvin fired some ten shots into its head.

The cow was left where it had been shot, about thirty feet from the highway. At around seven that evening, Dennis accompanied appellant, Marvin and Paul Essmyer to the place where the dead cow was lying. According to Essmyer, Marvin and Joe were going to take the meat, but the animal was bloated and they left it there. Ralph Crump identified the dead animal as one owned by him and his brothers and which they allowed to run at large on the open range in Washington County.

On such evidence, the jury found the appellant guilty of stealing, rejecting his defense of alibi. Upon a finding of the applicability of the second offender act, the court fixed the punishment at five years’ imprisonment. Appellant’s retained trial counsel filed a motion for new trial which was overruled. An appeal was filed, but no brief has been filed on behalf of appellant in this court.

The first question which confronts us is the sufficiency of the evidence to show a violation of § 560.156, RSMo 1959, V.A.M.S. our “stealing” statute. That statute defines “steal” as “to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, trans-fering, concealing or retaining possession of his property.” Although the information was not required to specify that the exercise of dominion over the cow was by any of the methods enumerated by the statute (see State v. Miles, Mo.Sup., 412 S.W. 2d 473), we note that it charges that the exercise of dominion was by killing the animal. There is no evidence of further exercise of dominion by defendant over the cow.

If the conviction is to stand, there must be a showing that the appellant’s act of killing the cow was an exercise of dominion in one of the specified manners. The state suggests that killing constituted “using” the animal and also that there was a “taking” of the life of the animal. The submission to the jury was on neither of such theories. The verdict-directing instruction called for a finding of guilt if the jury found that the appellant did steal the cow by “wilfully, unlawfully, feloniously, and intentionally shooting and killing said Angus cow, with the specific intent to steal, take and convert the said cow to the use of the defendant, and to permanently deprive the owners of the use thereof, * *

That instruction would have properly submitted a charge under former § 560.205, RSMo 1949, V.A.M.S., repealed upon the enactment of our present stealing statute. Laws of Mo., 1955, p. 507, § A. By that repealed section, the intentional killing of an animal, the subject of larceny, with intent to steal or to convert to the use of the killer the carcass or skin of the animal, was made larceny, punishable “in the same manner as if he had feloniously stolen such animal.” That express statutory definition of the act in question was necessary to permit a prosecution for larceny in cases, such as that here involved, when there was no common law larceny by reason of the lack of the essential element of asportation, or carrying away. “[Mjerely shooting down an animal with felonious intent is not an asportation sufficient to constitute larceny of the animal at common law, although statutes intended to remedy this defect and afford protection to the owners of domestic animals have been enacted in some jurisdictions.” 32 Am.Jur., Larceny, § 21, p. 906.

The state asserts that the simultaneous enactment of § 560.156 and repeal of § 560.205, along with fifty-eight other statutes, shows that the legislative intention was “to consolidate these separate crimes under the less confusing heading of ‘stealing’ ” and that “§ 560.156 must be construed as including within its scope the offenses of the 59 repealed sections of the statutes, including § 560.205, * * However, legislative intent is no substitute for legislative enactment, particularly when the criminal law is concerned. The enactment must be broad enough to describe the offenses covered by the repealed provisions if the ascribed intent is to be fulfilled.

Looking at the methods enumerated by § 560.156, by which a person may exercise dominion over the property of another, we find no language indicating that the legislature intended to eliminate the requirement of asportation as an element of the offense which it defined. As pointed out in State v. Miles, Mo.Sup., 412 S.W.2d 473, 475 [1-8]: “The word ‘steal’ when applied to property has a well-defined meaning, ‘ * * a uniform significance, and in common as well as legal parlance means the felonious taking and carrying away of the personal goods of another.’ ” By § 560.156, the legislature has described numerous means by which such taking and carrying away may be accomplished, but it did not, in our opinion, use any terminology which indicated that the legislature intended the elimination of the basic elements of the offense. As pointed out in State v. Zammar, Mo.Sup., 305 S.W.2d 441, 444-445 [5], the object of the enactment of our stealing statute was “to eliminate technical distinctions between the offenses of larceny, embezzlement and obtaining money under false pretenses.” See State v. Woolsey, Mo.Sup., 324 S.W.2d 753, 754 [1-3].

The state, in arguing that the killing constituted “using” within the statute, says: “Even without the testimony concerning appellant’s intention to take the meat from the carcass of the cow, and even if it be assumed that the shooting of the cow was merely an act of diversion or perverted entertainment on the part of the appellant, he ‘used’ the property of another without his consent, * * This argument overlooks the fact that § 563.670, RSMo 1959, V.A.M.S., makes the willful and malicious killing of the dumb animal of another a misdemeanor. That section was not affected by the enactment of § 560.156. Under the state’s argument, the basic difference between the offense here attempted to be charged and that described by § 563.-670 must be the intent with which the act is done. However, § 560.156 affords no basis for such distinction and we must conclude that it does not apply to a mere shooting of an animal with whatever intent. If the legislature wishes to prohibit and punish as stealing activity such as that here shown, some more explicit basis therefor must be provided.

The judgment is reversed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Billy Gene CHASE, Appellant.
    No. 51137.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard K. Wilson, Sp. Asst. Atty. Gen., Springfield, for respondent.
    Leonard L. Bornschein, Clayton, for appellant in Circuit Court. No brief filed in Supreme Court. Taken as submitted.
   HOUSER, Commissioner.

Billy Gene Chase was tried in the Circuit Court of Callaway County upon an information charging him with stealing a diamond ring of the value of $187.50. On July 13, 1964 the trial jury returned a verdict finding defendant guilty as charged and assessing his punishment at “2 years.” The only entries in the transcript following the record of the filing of the verdict are those showing the filing of a motion for new trial on July 21, 1964, the filing of a notice of appeal “from the conviction entered in this action on the 13th day of July, 1964,” and the making of an order extending the time for the filing of the transcript on appeal. The state concedes that the motion for new trial was never ruled upon. There is no showing in the transcript that allocution was granted or that sentence was passed or that a final judgment of conviction was entered.

The same' situation existed in State v. Bledsoe, Mo.Sup., 249 S.W.2d 457. We reaffirm here what was said there. No final judgment having been rendered against defendant there was nothing from which to appeal. The appeal is premature. We have no jurisdiction to review the record on appeal in the absence of a final judgment in the trial court. The submission of this cause on appeal must be set aside and the cause remanded to the trial court with directions to cause defendant to be brought before the court. Criminal Rule 27.08, V.A.M.R.; § 546.560, V.A.M.S. Notwithstanding the court did not render formal judgment and impose sentence at the expiration of ninety days after the filing of the motion for new trial, it did not lose jurisdiction to do so. State v. Grant, Mo.Sup., 380 S.W.2d 799, 803 [6]. When defendant is brought before the court he should be granted allocution. Criminal Rule 27.09, V.A.M.R.; § 546.570, V.A.M.S. If no legal cause is shown why the court should not pronounce sentence against him the court should sentence defendant in accordance with the verdict and the punishment assessed by the jury and should render final judgment in the cause. After the rendition of final judgment defendant will have the right to take an appeal, Criminal Rule 28.03, “not later than ten days after the judgment * * * appealed from becomes final.” Civil Rule 82.04, V.A.M.R.; § 547.070, V.A.M.S.; State v. Grant, supra, 380 S.W.2d, 1. c. 803. Defendant will then be entitled to “a review of the cause by this court upon its merits, provided all proper procedural steps required by law and the rules of this court are taken.” State v. Bledsoe, supra, 249 S.W.2d, 1. c. 458 [2].

It is so ordered.

WELBORN and HIGGINS, CG, concurs..

PER CURIAM:

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Bobby Lee GUNTHER, Appellant.
    No. 52553.
    Supreme Court of Missouri, Division No. 1.
    June 12, 1967.
    Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Whitfield Moody, J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   HIGGINS, Commissioner.

Appellant, on March 24, 1965, pleaded guilty to a charge of robbery, first degree, and was sentenced to 8-years’ imprisonment in the penitentiary. §§ 560.120 and 560.135, V.A.M.S. On July 12, 1966, he filed a motion to withdraw his plea of guilty and for vacation of sentence and judgment under Criminal Rules 27.25 and 27.26, V.A. M.R. The court overruled the motion after an evidentiary hearing at which defendant was present in person and by counsel, Mr. J. Arnot Hill.

Appellant charges that Mr. Michael Ko-nomos, a lawyer hired to defend the robbery charge by his family, was ineffective. He claims that Mr. Konomos failed to produce witnesses who would provide an alibi for him and that he told appellant he was charged under the Habitual Criminal Act and should “just go over and plead guilty and you will get eight years, otherwise you will be without counsel and will receive a life sentence” because of race and past record.

At the sentencing March 24, 1965, the following proceedings were recorded:

“THE COURT: All right, gentlemen, this is State of Missouri versus Bobby Lee Gunther. Are you Bobby Lee Gunther? THE DEFENDANT: Yes, I am.

“THE COURT: You are charged with Robbery First Degree, Mr. Gunther. I understand you have pleaded not guilty formerly. Do you at this time desire to change your plea? THE DEFENDANT: Yes.

“THE COURT: How do you plead? THE DEFENDANT: Guilty. THE COURT: You are pleading guilty to this charge of Robbery First Degree? THE DEFENDANT: Yes. THE COURT: Have any threats or promises been made to you to induce you to make this plea? THE DEFENDANT: No.

“THE COURT: Have you discussed it with your attorney, Mr. Konomos? THE DEFENDANT: Yes. THE COURT: Do you understand you have a right to have your case tried before a jury? THE DEFENDANT: Yes. THE COURT: You are waiving that right by entering this plea, is that right? THE DEFENDANT: Yes.

“THE COURT: You are pleading guilty to this charge because you are guilty, is that right? THE DEFENDANT: I am pleading guilty. THE COURT: Are you guilty? THE DEFENDANT: I am guilty. THE COURT: All right. The Court will accept the plea of guilty.

“MR. LYONS (assistant prosecuting attorney) : I would like to withdraw the Habitual Criminal Information in view of the change of plea. It has been filed this date, and proceed on the original Information. THE COURT: All right. The Court will grant leave.

“MR. LYONS: In addition to your attorney your father is here in court also, is he not, Mr. Gunther? THE DEFENDANT: Yes, sir, he is. MR. LYONS: Your father’s name is what? THE DEFENDANT: Paul Gunther. MR. LYONS : You have conversed and advised your son in this matter? MR. PAUL GUNTHER: Yes, I have.

“MR. LYONS: Do you want a brief statement of the facts, Your Honor? THE COURT: Yes.

“MR. LYONS: On the 3d day of January of this year, 1965, this defendant entered into the Heart of America Chicken in a Box at 3228 Indiana. There were two employees there, Annabelle Woodard and another lady, in addition to a number of customers. He walked to the back of the store where the manager, Miss Woodard, was, and had his left hand in his pocket and told her that this was a stick-up and that if she played it cool and didn’t do anything she wouldn’t be hurt, and pointed with his right hand to his left hand in his pocket indicating he had a gun; that she obeyed his wishes and the other employee also was there and was told the same thing. The cash register was opened and currency in the approximate amount of $160 was taken from the cash register in the presence of the manager, Annabelle Woodard. He then left the place of business and got into a 1962 Ford Falcon with Missouri license number YJ8-107, which later turned out this belonged to his sister-in-law.

“The defendant was arrested the next day and was identified in showup by both of the witnesses, the victim and other witness.

“He has, Your Honor, prior felony convictions as indicated by the filing of the Habitual Criminal Act in addition to the ones stated thereon.

“In 1953 he was sentenced for the Dyer Act until he was twenty-one years of age; in 1957 he was sentenced to one to five years for grand larceny; in 1958 he was given five years for Robbery First Degree out of this county on a plea of guilty, and in 1962 he was given two years for damaging state property; in 1963, one to five years for grand larceny.

“Since the defendant, Your Honor, is saving the Court the expense of the trial and saving the county the expense of such, the State will recommend eight years on his plea of guilty.

“Now, Mr. Gunther, you understand the Court is not bound by my recommendation ? THE DEFENDANT: I understand.

“MR. LYONS : Your attorney or father has not told you this. The Judge may give you more or less than what I recommend, you understand that? THE DEFENDANT : Yes, sir.

“THE COURT: Mr. Konomos? MR. KONOMOS: No questions. I wish you would give him credit for his jail time, Your Honor.

“THE COURT: Mr. Gunther, you have entered this plea of guilty. Do you have any legal cause to show why sentence and judgment should not be passed on you at this time? THE DEFENDANT: No, sir, I don’t. THE COURT: Do you want to make any statement to the Court before I sentence you? THE DEFENDANT: No, sir.

“THE COURT: How long has he been in jail ? THE SHERIFF: January 4, 1965. THE COURT: All right. Mr. Gunther, it is the judgment and sentence of this Court that you are sentenced to eight years in the custody of the Missouri Department of Corrections; your sentence to commence as of January 4, 1965.”

At the hearing on his motion appellant testified that Mr. Konomos saw him twice while in jail; that he did not commit the charged robbery; that he asked Mr. Kono-mos to see his mother about certain witnesses who could testify to the “time element” and where he was at the time of the robbery; that he did not know whether Mr. Konomos pursued the request; that in a conference in the courtroom at the time of the plea Mr. Konomos said he would “see about getting me eight years, if he could”; that he said “that since I had this record and about the Habitual Criminal Act, I could get anywhere from eight to life on it. Quite naturally, I didn’t want that.” He said also that he pleaded guilty because he did not want to go to trial. His specific complaint against Mr. Konomos was stated: “I don’t think Mr. Konomos seen the people whom I asked him to, to verify where I was at the time that this place was robbed, and by him telling me that this amount of time I could get, he said change my plea, so I had to change it. Q. Is there anything else you can add, any complaint you have against your lawyer at that time, Mr. Konomos? A. Just was ineffective.”

Cross-examination elicited that he went to high school “maybe one and a half years”; that his family was available to him at the time of his plea and that his father was present and advised him; that they, as well as Mr. Konomos, could have made themselves available as well as his alibi witnesses had he stood jury trial; that he previously had pleaded guilty to armed robbery and received a sentence of five years, at which time he had counsel hired by his family; that the court told him at the present sentencing that he could get more or less time than the state recommended; that no one made any threats or promises; that he understood his right to stand trial; that he understood all the proceedings.

Michael D. Konomos testified that he had been practicing law since 1922 and had experience as an assistant prosecuting attorney and in defense. “My practice is ninety-five per cent criminal.” He had handled two hundred fifty robbery cases alone and was informed on the law of robbery. He talked to the defendant the day the plea was entered, to his father, and to the defendant in jail several times. “⅜ ⅜ ⅜ he intimated to me we should make some effort to get witnesses, and I stopped him, I said, ‘I want to know this: Are you guilty or not guilty? You have to tell me the truth.’ He told me he was, that he had been released from the penitentiary 30, 40,. or SO days before.” He did not mention any witnesses. “He wanted me to see what I could do. T don’t want to stand trial.’ He seemed to know the ropes, as we call it, about what might happen, and I talked to him at length. I asked him, and he asked me questions and I gave him the answers.” He discussed the matter with the assistant prosecuting attorney and then told defendant, “ T don’t know if the State is going to drop the Habitual or not. I want you to think it over,’ and he said, ‘I know all about it, Mr. Konomos, get the Habitual dropped. I don’t want to go to trial.’” They discussed the plea, the willingness of the prosecuting attorney to recommend an 8-year sentence, and the minimum and maximum sentences of five years to death. The same information was related to the father. On the day of the plea he wanted to plead guilty. The defendant never expressed any dissatisfaction with the services of Mr. Konomos until the current motion and testimony.

Appellant’s motion also charges that “at no time before sentencing did this Judge ask this defendant if his plea of guilty was voluntarily made, nor did the Judge ask defendant if he had any good or 'legal reason to give why Judgment and Sentence should not be pronounced at this time.’ ” The partial transcript previously set out shows that no threats or promises were made to induce appellant to plead guilty; that the court did specifically ask defendant for “any legal cause to show why sentence and judgment should not be passed,” and that the defendant had no such reason. In addition, at the hearing on the motion the latter charge was abandoned.

The court continued the hearing to September 30, 1966, to permit Mr. Hill to arrange for the testimony of the father and any other witnesses desired. On September 30, 1966, appellant stated that his mother had twice reported his father to have been in “town,” but the father had not contacted him.

The court denied appellant’s motion, finding, among other things, that defendant was granted allocution; that the guilty plea was not the result of any coercion by the prosecuting attorney or the “Habitual Criminal Act”; that the plea was voluntarily made after consultation with appellant’s privately employed counsel and father; that appellant understood the nature of the proceedings; that there is no present showing of witnesses to establish alibi; that appellant’s privately employed counsel effectively represented him; that appellant admitted his guilt in open court; and that justice would not be served by setting aside the plea and sentence.

Under this evidence and these circumstances it cannot be said that appellant has sustained his burden of proving ineffective assistance of counsel. State v. Washington, Mo., 399 S.W.2d 109, 112[7]. There is no evidence of coercion, misrepresentation or mistake; the plea was voluntarily made; it appears that appellant’s counsel, Mr. Konomos, had been practicing over forty years with emphasis on criminal cases and with particular experience in robbery cases. There is no evidence that Mr. Kon-omos did not do all that any attorney could have done in advising appellant, in protecting his rights and in securing justice for him, and his contention that he was ineffectively represented was properly denied on this record. See State v. Riley, Mo., 394 S.W.2d 360, 363[3]; State v. Macon, Mo., 403 S.W.2d 630, 632[3]; State v. Worley, Mo., 371 S.W.2d 221, 224[7].

Appellant also charges that the complaint of robbery, first degree, against him was void because it was not made by the person robbed; that the warrant issued pursuant to such a complaint was therefore void, and that the warrant reciting only the charge of “Robbery, First Degree” failed to advise him of the nature of the accusation. It is unnecessary to determine whether either the complaint or warrant was defective because such alleged defects went only to the validity of the arrest and not to defendant’s guilt or innocence of the offense charged. Such are preliminary matters which are waived by failure to make timely objection and proceeding to trial. State v. Ninemires, Mo., 306 S.W.2d 527, 529[4]; State v. Herron, Mo., 376 S.W.2d 192, 193[2]. In this case, the plea of guilty to the charge of robbery, first degree, previously demonstrated to have been voluntarily entered, waived any defects in the original complaint and warrant.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.