author: PER CURIAM.

text:
    In re Charles Elwood GORDON.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Rehearing Denied June 10, 1966.
    Reford H. Coleman, Leitchfield, for appellant.
    Joseph S. Freeland, Paducah, for appel-lee.
   PER CURIAM.

Five charges of misconduct were filed by the Kentucky State Bar Association against Charles Elwood Gordon of Benton. Four of the charges were sustained; one was dismissed; and it was recommended that Gordon be suspended for a period of six months from the practice of law in Kentucky. Under RCA 3.450 a rule has been issued against Gordon to show cause why he should not be adjudged guilty of unprofessional conduct and disciplined therefor.

Briefly the charges were:

(1) Respondent assaulted an attorney who had filed a divorce action for respondent’s wife. Respondent was subsequently indicted and pleaded guilty to the indictment.
(2) Respondent by telephone threatened another attorney with bodily harm for filing a claim against respondent.
(3) Respondent, while a candidate for circuit judge, caused to be published and broadcast political advertisements of such nature as to bring discredit to the legal profession and disrespect to the judicial system.
(4) Respondent solicited employment in a divorce action from a party who was then represented by an attorney.
(5) Respondent collected a $500 fee from a client by representing that he would have an indictment brought against two men for molesting the client’s daughter, but respondent thereafter made no effort to do so and refused to return the money.

The fourth charge was dismissed. The fifth charge was amended to a charge of failure to attend to the affairs of his client for which he had previously received his fee in full.

The respondent denied the charges except the first, to which he pleaded that he acted in self-defense. The record has been reviewed and there is evidence of substance having probative value sufficient to sustain each finding of guilt. No worthwhile purpose would be served in detailing and reviewing the evidence. This answers the first contention made by the respondent that the findings are not supported by the evidence.

In passing, it may be noted that the misconduct charged extended over a period of years, from 1954 until the charges were filed in 1963. The variety of misconduct over this extended period indicates that disciplinary action is necessary as a deterrent to further such conduct.

Respondent contends that in the light of In re Vaughn, Ky., 369 S.W.2d 14, the punishment recommended is excessive. In the Vaughn case the punishment consisted of a reprimand and censure plus the payment of costs in excess of $1,000. Upon consideration of the action taken in various other disciplinary matters, the punishment is not deemed excessive. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321; In re Wells, 293 Ky. 205, 168 S.W.2d 733; In re Brown, Ky., 279 S.W.2d 773; In re Cahill, 313 Ky. 867, 230 S.W.2d 633; In re Edge, Ky., 282 S.W.2d 830; In re Stone, Ky., 334 S.W.2d 351; In re Porter, Ky., 393 S.W.2d 881; In re Ray, Ky., 390 S.W.2d 899.

It is therefore ordered that the respondent, Charles Ehvood Gordon, be and he is hereby suspended from engaging in the practice of law in the state of Kentucky for a period of six months from the date of issuance of the mandate herein.

STEWART, J., not sitting.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    Leonard DOAN, Appellant, v. George GRIFFITH, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.

      James S. Greene, Jr., Greene & Forester, Harlan, Lohren F. Martin, Jr., Sutton & Martin, Corbin, for appellant.
    Fritz Krueger, Somerset, for appellee.
   WADDILL, Commissioner.

Appellant, Leonard Doan, instituted this action for malpractice against appellee, Dr. George Griffith, claiming damages for pain, mental anguish and permanent physical incapacity. At the close of Doan’s evidence Dr. Griffith moved for a directed verdict in his favor. The motion was sustained and Doan appeals contending this was error.

The sole question is whether there was sufficient evidence as a matter of law to take the case to the jury. Dr. Griffith was entitled to a directed verdict only if the evidence and the reasonable inferences which could be drawn therefrom in favor of Doan were insufficient to support a verdict in his favor. Johnson v. Vaughn, Ky., 370 S.W.2d 591.

Doan was admitted unconscious to the Baptist Hospital in Mount Vernon with serious injuries, which included multiple fractures of his facial bones, from an accident. Dr. Griffith administered emergency treatment and thereafter visited him in the hospital daily. On the seventh day after the accident he discharged Doan from the hospital.

There is expert medical testimony showing that the customary medical treatment of Doan’s injuries would have been to surgically realign his fractured bones as soon as the swelling subsided, usually within 10 days, and that such treatment would have restored the normal contour of his face and the proper functioning of his senses. At the time Doan was discharged from the hospital his face was still swollen so he could not have had the realignment of his fractured bones prior to that time.

Doan testified that Dr. Griffith did not timely inform him that the bones in his face ■needed to be set by a specialist. Hence, he contends there was sufficient evidence that Dr. Griffith was negligent in not advising him of this needed treatment before the broken bones became fused causing his face to be disfigured and his vision impaired.

In Johnson v. Vaughn, supra, a rule pertinent to this character ■ of case is stated thusly:

“ * * * a physician is under the duty to give his patient all necessary and continued attention as long as the case requires it, and that he should not leave his patient at a critical stage without giving reasonable notice or making suitable arrangements for the attendance of another physician, unless the relationship is terminated * *

See also, 41 Am.Jur., Physicians and Surgeons, Section 99, p. 215; Anno. 57 A.L.R.2d 432.

Under the evidence adduced the jury could reasonably have found that Dr. Griffith failed to timely advise Doan of his need of further medical treatment and that such failure was the proximate cause of his condition. Therefore, we conclude that the trial court erred in directing a verdict in favor of Dr. Griffith following the introduction of the evidence on behalf of Doan.

The judgment is reversed for further proceedings consistent with this opinion.


author: PALMORE, Judge.

text:
    Floyd RICHARDSON, Appellant, v. Joe EATON, Sheriff, Jefferson County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Daniel T. Taylor, III, Neville M. Tucker, Louisville, for appellant.
    No appearance for appellees.
   PALMORE, Judge.

Floyd Richardson appeals from an order of the Jefferson Circuit Court refusing to discharge him from custody of the sheriff of Jefferson County on a writ of habeas corpus. KRS 419.130.

The petition alleged that Richardson was being held under excessive bail. A writ of habeas corpus was issued on May 2, 1966. There was no written response, but the judgment denying relief indicates that a hearing was held on May 3, 1966. Unfortunately, no transcript of the hearing was made. In habeas corpus proceedings this is a court of review only. KRS 419.130. We cannot accept counsel’s statements, solemnly as they may be verified, in tieu of a properly certified record of the proceedings. There are other means of preserving the evidence if it is not transcribed. Cf. CR 75.13; RCr 12.68.

Without knowing the facts on which the trial court based its action we must presume they support the judgment. See Smithers v. Bindner, Ky., 351 S.W.2d 872 (1961).

The judgment is affirmed.


author: HILL, Judge.

text:
    Walter (Sonny) GOSSETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.

      Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellant pleads for a reversal of his conviction and sentence of one year for the third violation of the local option liquor laws embodied in KRS 242.230 and 242.990. We consider only two of the points raised merit discussion.

First, it is insisted the evidence was insufficient to convict. The chief witness for the Commonwealth testified appellant, accompanied by his wife, drove up in front of her residence, paused momentarily until he had a rendezvous with two other men in another car. She said she was on her porch rocking her baby to sleep within about thirty feet of the cars when she saw appellant hand one of the occupants of the other car two half pints of what she took to be whiskey, with unbroken red seals thereon, and receive some money in return. She could not say how much. Her presence on the porch was hidden from their view. It is fair to assume the bottles were not empty. Appellant was not a messenger for a drugstore; and considering the nature of the transaction, it is also reasonable to infer that the meeting was duly appointed. In view of the reputation of appellant for dealing in liquor traffic, as evidenced by his two previous convictions, we conclude the evidence was sufficient to convict on the principal charge in the indictment.

It is next insisted that the Commonwealth’s attorney was guilty of prejudicial misconduct in his closing argument with reference to the failure of appellant’s wife to testify. This is what was said:

"All right, sir. Who was with Walter (Sonny) Gossett who did Mrs. Ping say was with him. When this transaction took place. Walter (Sonny) Gos-sett’s wife, she is back here in the Courtroom now, she has been here all the time, Mr. Krueger, why didn’t you put her on the witness stand and let her deny that these things took place there on that day. lid (sic) a heap—I’d come a lot nearer, Mr. Surber, believing Sonny Gossett’s wife under oath than I would these two characters they put up here, if she had come up here and told this Jury that that didn’t happen, that she wasn’t there and that Sonny Gossett wasn’t there then you might have some room for reasonable doubt because I don’t think she would come here and purjure (sic) herself and swear a lie on this witness stand, I know her well, I know her personally * *

It is written in KRS 421.210 (old Cr.Code 606) that “neither (husband or wife) may be compelled to testify for or against the other.” Comments by the Commonwealth’s attorney on failure of the wife to testify or failure of the husband to call the wife as a witness are improper, prejudicial, and have been consistently condemned by this court. Cf. Sexton v. Commonwealth, 304 Ky. 172, 200 S.W.2d 290 (1947); and Coffey v. Commonwealth, Ky., 256 S.W.2d 379 (1953).

Not only were these comments improper, but “insult was added to injury” by the testimony (not under oath) of the Commonwealth’s attorney in his closing argument to the effect that “he knew” the wife “well” and “personally” and that he didn’t think she “would come here and purjure (sic) herself.”

It is concluded the argument of counsel for appellee was improper and prejudicial to the substantial rights of appellant.

The judgment is reversed with directions to grant appellant a new trial.


author: CULLEN, Commissioner.

text:
    Nola A. DEWEESE et al., Appellants, v. Edna Cornett ARNETT et al., Appellees.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Joe Hobson, Prestonsburg, for appellants.
    Earl R. Cooper, Salyersville, for appel-lees.
   CULLEN, Commissioner.

Appellants, children of Dean Arnett, deceased, by his second wife, brought this action seeking a declaration of invalidity of a deed executed by Arnett in 1914 to his first wife, long since deceased, and to his children by her (the appellees). The grounds of attack were that the deed had never been delivered and that even if delivered it was testamentary in character and not valid because not executed with the formalities required of a will. The circuit court entered judgment holding the deed valid, from which judgment we have this appeal.

There was positive testimony that the deed was delivered to one of the grantees (a daughter) in 1918, after the death of Arnett’s first wife. As against this there was only an inference of nondelivery arising from testimony that on a day in 1921 the daughter secretly removed the deed from her father’s trunk and caused the deed to be recorded, this being the day after the father had secured a license to marry his second wife. The trial court was entitled to believe the positive testimony of delivery. The finding that the deed was delivered therefore is not erroneous.

The deed, which contained the customary formal recitations and clauses of a warranty deed and which purported to convey a specifically described tract of land, had the following special provision:

“The object and intention of this deed is, that Dean Arnett party of the first part, being in bad health and desiring to make the proper provision for his wife and children and himself, while of sound mind, but not to have the force and effect of a will, herein sets forth my wish, that first party is to have absolutely full and unrestricted control of all the aforesaid property during his natural life, then the aforesaid property is to be equally divided between his wife and three children aforementioned, thence should all or any of my said three children survive my wife then in that event they or either of them living is to have all the said estate, equally as the case may be, but should my wife, Georgian Arnett survive myself and all my three children, then the said property becomes hers absolutely in fee simple, as if by inheritance or descent.”

The appellants maintain that by virtue of this special provision, particularly the reservation by the grantor of “full and unrestricted control,” the deed must be considered to have conveyed no present interest and therefore to be testamentary in character. Reliance is placed on Ison v. Halcomb, 136 Ky. 523, 124 S.W. 813, and Douglas v. Snow, 304 Ky. 805, 202 S.W.2d 629.

Ison v. Halcomb is not applicable because there the deed did not describe or undertake to convey any specific piece of property, but sought to convey in bulk all property that the grantor might own at the time of his death. The grantor clearly did not intend to pass any interest in any specific piece of property he owned at the time of the deed.

Douglas v. Snow has been overruled in Witherspoon v. Witherspoon, Ky., 402 S.W.2d 699 (decided October 15, 1965, petition for rehearing overruled May 13, 1966). The opinion in the latter case sets forth what we consider to be the correct principles applicable to cases of the kind here presented, and under that opinion the judgment in the instant case is correct in holding the deed valid.

The judgment is affirmed.


author: NORVELL, Justice.

text:
    CONTINENTAL OIL COMPANY, Petitioner, v. William DOORNBOS et al., Respondents.
    No. A-10638.
    Supreme Court of Texas.
    April 27, 1966.
    Rehearing Denied June 8, 1966.
    Thomas D. Montgomery, Fort Worth, Orgain, Bell & Tucker, Beaumont, for petitioner.
    W. O. Bowers, Jr., Beaumont, Williams, Lee & Lee, Thomas H. Lee, Houston, for respondents.
   NORVELL, Justice.

The Doornbos plaintiffs (William Doorn-bos and others, successors in interest to C. Doornbos) sought, among other things, a declaration that a certain deed executed by Continental Oil Company to A. R. Mc-Elreath and F. W. Suggett, dated January 26, 1943, conveyed no more than a one thirty-second royalty interest in the minerals underlying the lands described in such deed. They further prayed that a deed executed by Continental Oil Company to C. Doornbos on April 23, 1945, be reformed. The trial court decreed that the Doornbos plaintiffs take nothing against the McElreath-Suggett defendants but reformed the Continental-Doornbos deed. Continental appealed from the latter portion of the judgment, but no appeal was perfected from that portion of the judgment relating to the Continental-McEl-reath-Suggett conveyance. The Court of Civil Appeals affirmed. 386 S.W.2d 610. We reverse and here render judgment that the Doornbos plaintiffs take nothing against Continental. The trial court’s judgment construing the Continental-McEl-reath-Suggett deed and in effect decreeing that the Doornbos plaintiffs take nothing against the McElreath-Suggett defendants is left undisturbed.

A statement of the history of the title to the property involved is essential to a proper understanding of our holding.

On January 25, 1943, the San Antonio Loan and Trust Company conveyed to Continental Oil Company a tract of 1842.5 acres which embraces the property now in dispute. The San Antonio Loan and Trust Company retained a perpetual royalty interest of ½2 of all oil, gas and other minerals produced and saved from the premises. Thereafter, on January 25, 1943, Continental Oil Company executed two deeds, one to Butcher Arthur Company conveying a ⅜2 royalty interest, and the other to A. R. McElreath and F. W. Suggett conveying “an undivided one-fourth (¼) of all the oil royalty, gas royalty and royalty in casinghead gas, gasoline and royalty in other minerals” that might be produced from the premises.

On April 23, 1945, Continental Oil Company conveyed the property to C. Doornbos, excepting the royalty interests above set out and reserving to the grantor, Continental Oil Company, an additional ⅜2 royalty interest. On the dates above mentioned, the property was not covered by a mineral lease.

The Continental-Doornbos conveyance as written did not expressly provide that the grantee, C. Doornbos, should receive all royalties in excess of one-eighth of the oil, gas and other minerals which might be produced from the land. However, the trial court reformed the conveyance so as to place this provision in the deed and subordinate the Continental reserved ⅞2 royalty interest thereto.

The trial court’s decree contained the following provisions:

“[It] is specifically decreed that the deed from said defendant Continental Oil Company to C. Doornbos (from and under whom the plaintiffs herein have title) dated the 23rd day of April, 1945, recorded in the Deed Records of Jefferson County, Texas, in Vol. 577, page 591, be and the same is here now amended and reformed to contain language conveying, and to include express words of conveyance, to C. Doornbos as of its date all of the oil royalty, gas royalty and royalty in other minerals over and above and in excess of one-eighth royalty, except said plaintiffs under this decree do not recover and shall not be entitled to any part of:
"Exception One:
“One-thirty-second (%2nd) royalty reserved by San Antonio Loan and Trust Company in its deed to Continental Oil Company, dated the 25th day of January, 1943, * * *
"Exception Two:
“One-thirty-second (%2nd) royalty conveyed by Continental Oil Company to Butcher-Arthur Company by deed dated the 26th day of January, 1943, * * *
"Exception Three:
"One-quarter (14-th) of all of the oil royalty, gas royalty and royalty in cas-inghead gasoline and royalty in other minerals conveyed by Continental Oil Company to A. R. McElreath and F. W. Suggett by deed dated the 26th day of January, 1943, * * *
“Exception Four:
“Any royalty that may remain in Continental Oil Company by virtue of its attempted reservation of a one-thirty-second (⅜2nd) royalty interest in its said deed to C. Doornbos, Defendant Continental Oil Company to own such interest, if any, as may remain after the satisfaction of the three (3) royalty interests set out above in Exceptions One, Two and Three and after the satisfaction of Continental Oil Company’s grant to C. Doornbos of all royalty over and above a one-eighth (⅛⅛) royalty.

“That said deed from Continental Oil Company contains this language,

“ ‘ * * * there is excepted from the interest herein conveyed and is reserved to Continental Oil Company, its successors and assigns, a perpetual royalty in fee of %2nd of all of the oil, gas, casinghead gas and all other minerals in and under a”d which may be produced from the above described land, said %2nd of the gross production from the above described land to be delivered to Continental Oil Company its successors and assigns, or to its or their credit in the pipe line serving said property, free and clear of all costs of prospecting, drilling, producing, saving and marketing, whether the same is produced by Grantee, his heirs, successors or assigns or by any lessee, holding under Grantee, his heirs, successors or assigns, Continental Oil Company, its successors and assigns do not reserve any right to participate in the making of any lease covering the mineral interests in the above described land, nor shall it or they be entitled to any part of the bonus or the delay rentals under any such lease. * * * ’, which said language is or may be in conflict with and repugnant to the grant to C. Doornbos of all royalty over and above and in excess of one-eighth (Y&th) royalty in accordance with said deed as same is reformed and amended by this decree, said reservation insofar as it does or may conflict with the grant of all royalty over one-eighth (Y&th) royalty to C. Doorn-bos is wholly void and of no effect to the extent of such conflict.”

The terms of the San Antonio Loan and Trust Company reservation and the Butcher-Arthur and McElreath-Suggett grants are correctly set forth in the decree. We have italicized the exception relating to the conveyance to McElreath and Sug-gett because the peculiar wording of this conveyance is the basic circumstance which gave rise to this lawsuit. This conveyance did not call for a one thirty-second royalty interest, but for one-fourth of all oil, gas and casinghead gas royalty and was so construed by the trial court. Such interest would amount to a one-thirty-second royalty interest only if the basic royalty in the lease under which oil and gas were produced provided for the usual one-eighth royalty.

The decree also correctly sets forth the terms of the Continental reservation contained in its 1943 deed to Doornhos. This reservation as contained in the deed was unconditional. The reformation decree subordinated this reservation to the Doorn-bos claim that C. Doornbos and his successors in interest were entitled to receive all royalty interests over and above a one-eighth. We have also italicized this portion of the decree.

The problem becomes clearer by pointing out the allocation of the royalty interests under the deed as actually written and comparing the same with the allocation provided for by the decree of the court which inserted the subordination clause above mentioned.

During the 1950s, C. Doornbos or his successors in interest negotiated a number of leases covering the property in which the base royalty provided for was in excess of one-eighth, namely, one-sixth, one-fifth and one-fourth. The Continental-Doorn-bos deed as written would provide for the following division of the royalty interests:

Royalty
reserved San Antonio Butcher-McElreath-
in lease Loan & Trust Arthur Suggett Continental Doornbos
one-sixth 1/32 1/32 1/24 1/32 1/32
one-fifth 1/32 1/32 1/20 1/32 9/160
one-fourth 1/32 1/32 1/16 1/32 3/32

The reformation of the Continental-Doornbos deed would have no effect upon the royalties to be paid San Antonio Loan and Trust Company, Butcher-Arthur or McElreath-Suggett (or their successors in interest), but would operate to cut down the Continental royalty interest and increase that of Doornbos in the following manner:

Royalty
reserved San Antonio Butcher-McElreath-
in lease Loan & Trust Arthur Suggett Continental Doornbos
one-sixth 1/32 1/32 1/24 1/48 1/24
one-fifth 1/32 1/32 1/20 1/80 3/40
one-fourth 1/32 1/32 1/16 1/8

Both Continental and Doornbos construed the deed from Continental to McElreath and Suggett to convey a one-fourth of a conventional one-eighth royalty, which would be a ⅜2^ royalty interest. This may be considered a mistake of law but its result was to cause both parties to mistakenly assume that Continental could reserve a ⅛2nd royalty interest and that Doornbos would then receive all the royalty provided for in a lease which he might negotiate calling for a royalty in excess of a one-eighth. There was no agreement made which would subordinate the reserved ⅜2nd Continental interest to the grant of a royalty interest of all above one-eighth to Doornbos, as provided for in the decree of the trial court in the second italicized paragraph above set out.

By Count V of their petition, the Doorn-bos plaintiffs sought reformation of the deed to include therein an express provision granting all royalty in excess of one-eighth. By Count VI they sought a declaration that the %2nd royalty reserved to Continental was void to the extent that it was repugnant to or in conflict with the reformed grant to Doornbos. The effect of a judgment declaring the ⅜2nd reserved royalty void to any extent would, of necessity, reduce the royalty reserved in some situations. Thus, under guise of seeking a construction of the deed and a declaration of the rights after reformation in one respect, the plaintiffs were actually seeking, and the judgment actually grants, reformation of the deed in two respects — to include in the deed an express provision granting to Doornbos all royalty in excess of one-eighth and a provision reducing the ⅜2nd royalty reserved to Continental when necessary to assure that Doornbos would get all royalty in excess of one-eighth. There is no evidence in the record that any such agreement was made or was omitted from the deed by mutual mistake.

It is basic to the remedy of reformation that the true agreement between the parties be shown. Sun Oil Company v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935); Pegues v. Dilworth, 134 Tex. 169, 132 S.W.2d 582 (1939); Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966 (1950). Once such agreement be established, equity may reform the written instrument so as to conform thereto, but cannot create and bring into being an agreement not made by the parties. The parties here agreed that Doornbos should have all the royalty over one-eighth. They also agreed that Continental should retain a %2nd royalty interest. But, as above pointed out, they never agreed that the Continental reserved interest should be subordinated to the interest conveyed to Doornbos. The subordination portion of the trial court’s decree purports to rest on the rule of construction announced in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940). The results of the judgment are achieved by switching from equitable principles of reformation to legal rules of construction half way through the solution of the controversy, so to speak. The Duhig rule is to be applied to ascertain the meaning of an instrument in the absence of an appeal to equity. When reformation is sought, the oral agreement preceding the written instrument is treated as the binding contract and the written instrument made to conform thereto. Pegues v. Dilworth, 134 Tex. 169, 132 S.W.2d 582 (1939). A provision not contained in the preceding oral agreement cannot be inserted in the reformed written agreement under the guise of reformation. While the circumstances of this case may have at one time served as a basis for rescission or other remedy, they do not present a case for reformation.

The construction of a deed containing a reservation repugnant to a grant, and in which the reservation must yield to the grant, is not involved here. This is a case in which the plaintiff seeks by reformation to increase the interest actually granted and to reduce proportionately the interest reserved to the grantor. There is no evidence of any such agreement and, accordingly, reformation is denied.

Judgment is here rendered as above stated.


author: SMITH, Justice.

text:
    MARYLAND CASUALTY COMPANY et al., Petitioners, v. PALESTINE FASHIONS, INC., et al., Respondents.
    No. A-11078.
    Supreme Court of Texas.
    May 4, 1966.
    Rehearing Denied June 1, 1966.

      Ramey, Brelsford, Flock & Devereux, Michael A. Hatched, with above firm, Tyler, for petitioners.
    John L. Bates, Waco, for respondents.
   SMITH, Justice.

This suit was filed by Palestine Fashions, Inc., Kay’s Ladies and Children’s Shop, Inc., R. H. Johnson, E. W. Hickman, Individually and d/b/a The Bootery and John L. Bates against Maryland Casualty Company and Pan American Insurance Company and B. B. Campbell, Individually and d/b/a Campbell Insurance Agency, to recover on two fire insurance policies insuring Edward W. Hickman d/b/a The Bootery against direct loss resulting from the destruction by fire of the contents of a shoe store in Palestine, Texas. Based upon a jury verdict, the trial court entered a judgment against each of the defendant insurance companies in the amount of $10,000.00 in favor of John L. Bates, Trustee, as majority stockholder of plaintiff, Kay’s Ladies and Children’s Shop, Inc., (a defunct corporation), and the plaintiff, Palestine Fashions, Inc. The judgment of the trial court granted R. H. Johnson an equitable lien on the proceeds of the two policies. All other parties, including the plaintiff, E. W. Hickman, Individually and d/b/a The Bootery, and the defendant B. B. Campbell, were dismissed and all issues not expressly disposed of by the judgment were found against the party or parties seeking such relief. There is no question as to the finality of the trial court judgment.

On appeal the Court of Civil Appeals reduced the rate of interest on the judgment from 10 per cent to 6 per cent; otherwise the judgment of the trial court was affirmed. 393 S.W.2d 664. We reverse the judgments of the trial court and the Court of Civil Appeals insofar as those judgments allow a recovery of any sum of money against the two insurance companies.

The two insurance policies, identical in all material particulars, were issued by B. B. Campbell, a local agent for both insurance companies to Edward W. Hickman d/b/a The Bootery for a term of one year from August 11, 1962, to August 11, 1963. The policies contained a provision that no assignment would be valid without the written consent of the insurance company and, further, that “[ujnless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring * * * (d) following a change in ownership of the insured property ⅜ ⅝ ⅝ »

It has been the position of the companies throughout that the facts giving rise to this controversy established as a matter of law that the companies, as insurers, are not liable to the plaintiffs because of the failure of the plaintiffs to obtain an endorsement on the policies at the time Hickman transferred the property. The plaintiffs, to the contrary, have consistently maintained that both companies, through their agent, B. B. Campbell, waived the change of ownership provision of the policies. The issue of waiver was submitted to the jury, and the jury found that each company waived the provision of its policy providing termination of liability thereunder following a change in ownership of the insured property. The facts, briefly stated, upon which plaintiffs rely to support the issue of waiver, are these:

It is undisputed that the insured, E. W. Hickman, on April 1, 1963, called B. B. Campbell, the agent for both insurance companies, and advised him that “The Bootery” had been sold to R. H. Johnson and requested Campbell to prepare endorsements to be attached to the policies in favor of Johnson. However, about 30 minutes later Hickman called again and advised Campbell that the property was being sold but that Johnson would not be the new owner, that when the name of the new owner was determined, Campbell would be advised. The last conversation between Hickman and Campbell was about one week after April 1, 1963, when Campbell called Hickman “to try to determine who the new owners were.” Upon being advised that the name of the new owner had not been determined, Campbell told Hickman that without information as to the new owner, he “could not issue an endorsement.” Campbell did not warn or remind Hickman of the policy provision requiring notice to the company and a written endorsement upon transfer of title to the insured property to another. The fact that Hickman initially called Campbell requesting an endorsement to Johnson is indicative that he was aware of the necessity for such endorsement before a contract of insurance would be effected between the new owner of the property and the insurers. After the withdrawal of Hickman’s request to note by endorsement on the policies that Johnson was the new owner, Campbell received no further information as to the change of ownership of The Bootery. Campbell was never told to cancel the policies, nor was he ever told definitely that the insurance would be kept in force by the new owner or owners.

Unknown to Campbell, the following had taken place regarding the ownership of the store: About March 25, 1963, with Hickman’s consent, Johnson foreclosed a chattel mortgage he held against The Bootery, and he took a Quit-Claim Bill of Sale as to any other interest Hickman might have in the store. Thereafter about April 1, 1963, Johnson transferred the store to Kay’s Ladies and Children’s Shop, a corporation chartered in 1957, as Trustee for a proposed corporation which was being formed. This proposed corporation was merely awaiting approval of a name before receiving its charter. On April 15, 1963, the day after the fire, Kay’s Ladies and Children’s Shop sold the store to Palestine Fashions, the new corporation. Palestine Fashions had been chartered on April 9, 1963, but no notice of the new corporation’s name or stockholders had been given to Campbell, the insurance agent, between the time the corporation was chartered and the fire on April 14, 1963. The record is undisputed that at all pertinent times prior to the fire, Campbell and the insurance companies were completely without knowledge of the ownership of the property by any of the plaintiffs, including Kay’s Ladies and Children’s Shop, Inc., Palestine Fashions, Inc., and John L. Bates, either individually or as Trustee for Kay’s and Palestine. It is equally clear that Hickman did not own the insured property at the time of the fire.

The Court of Civil Appeals relied upon the following cases in affirming the trial court judgment against the insurance companies. Scott v. Law Union & Rock Ins. Co., 12 S.W.2d 147 (Tex.Com.App.1929); British America Assurance Co. v. Francisco, 58 Tex.Civ.App. 75, 123 S.W. 1144 (1910, refused); New York Underwriters Ins. Co. v. Brittain, 62 S.W.2d 168 (Tex.Civ.App.1933, dism.).

In the Scott case, Scott sold his insured building to Riddle for $200 cash and vendor’s lien notes for the balance of $1,800. Riddle, on the same day, sold to Fuquay. Scott then, to protect himself, notified the local agent of the insurance company and requested a transfer of the policy to Fuquay, but the agent, since the policy was to expire in about two months, said he would make the transfer when Fuquay sold the property again, if he did, or when the policy expired, if he did not sell it. Scott told the agent that if that was “all right that is all I want.” Within the two months left on the term of the policy the building burned. The Commission of Appeals held that, since Scott had requested a transfer and the agent had told him it was “all right the way it stands now,” Scott was still protected, the provision had been waived, and the company was liable to Scott for the full amount of the policy.

In the Francisco case, Dixon, the owner of a lot and building burdened with a lien secured by a deed of trust in favor of one Jeanie Ely for a debt in the principal sum of $1,000, sold the property to Schultze who agreed to assume the debt to Ely. Thereafter Schultze took out fire insurance with British America in the amount of $1,200 on the building. The policy provided that it would be void if any change in the interest, title or possession of the insured occurred but that the mortgagee (Ely) would be protected to the extent of her interest if she gave notice to the company of any change jeopardizing the policy. The insurance company, upon payment to her of indemnity to the extent of her interest, would be subrogated to her rights. Schultze sold the property through McIntosh, a real estate agent, to Francisco, the plaintiff, for the sum of $1,000 plus assumption of the debt to Ely. McIntosh held the deed in escrow and notified Willie, the agent of British America, that the property had been sold, that the deed would be held in escrow until payment of the promised sum to Schultze, and that he wanted the property protected until the deed was delivered and the policy formally transferred. Willie made a memorandum of this and told McIntosh to notify him “when you finish that matter up.” Francisco later paid the amount owed to Schult-ze, and the deed was given to him. However, Willie was not given further notice, and the policy was never transferred. The building burned about a month later.

British America paid $1,090 in principal and interest owed to Ely by Francisco and took an assignment of her note and deed of trust. The company denied liability to Francisco., demanded payment of the note it held, and, when payment was refused, foreclosed. on the lot, buying in for $500. Francisco brought suit to cancel the trust deed and recover the $110 due to him under the policy over and above the $1,090 paid to Ely. The insurance company counterclaimed for the balance of $590 due on the note. The trial court entered judgment for Francisco, which was affirmed by the Court of Civil Appeals saying:

“ * * * [T]he failure of the agent of the insurance company to object to the transfer of the policy, upon being told that Schultze had sold the property to the plaintiff, and upon the payment of the cash consideration a deed which was then being held by McIntosh in escrow would be delivered to the plaintiff, together with the fact that the agent of the company made a memorandum at the time that this information was given him, and requested that he should be further notified when the sale was consummated, constituted a waiver of the provision in the contract against alienation, and was, in effect, a consent by the company to said sale; and that such conduct on its part, which evidently had a tendency to induce the agent of the plaintiff to believe that the company would be satisfied as to said sale and willing to carry the risk, is sufficient to estop it from now asserting a forfeiture of the policy. * * * ”

Finally, in the Brittain case, Fitts owned a house which he desired to sell to Brit-tain. The house was insured for $2,000 with the defendant insurance company and the policy provided that it would become void if any change should take place in the interest, title or possession of the premises. Fitts testified that he told Johnson, defendant’s insurance agent, about the contemplated sale to Brittain, that Johnson did not object, but stated that he might reduce the coverage to $1,500. Fitts told him not to do that as it might cause Brit-tain not to buy. After the sale Fitts gave the policy to Brittain who tried to see Johnson at his office, in order to get the policy endorsed, but failing this Brittain gave the policy to Sanders, Brittain’s lawyer, to deliver to Johnson for the proper endorsement over to Brittain. Sanders delivered the deed to Johnson and Johnson again remarked that he did not want to carry the policy for $2,000. Sanders objected and told Johnson to talk to the bank which held a lien on the property; the bank also objected to any such reduction in coverage to Johnson. Several days later Johnson redelivered the policy to Sanders without change or endorsement. Johnson never stated that the policy was cancelled nor did he offer to refund any unearned premium. After all of these transactions, the dwelling house burned.

The Court of Civil Appeals, in affirming the trial court judgment for the plaintiff, Brittain, held that there was a new contract between Brittain and the company embodying the terms of the original contract. The crucial facts upon which the court seemed to base its holding were stated thus:

“* * * [T]he acts of appellant’s agent in redelivering the policy to ap-pellee’s attorney and in retaining the unearned premium were wholly inconsistent with the idea advanced in this case by appellant that it never consented to the assignment of the policy from Fitts to Brittain. If the contract was to be treated by appellant’s agent as void, then why did he deliver the policy to Brittain’s attorney? In ordinary practice, when an agent cancels a policy he takes it up.”

The Court emphasized that since Brit-tain notified Johnson that he definitely desired to keep the insurance in force, it was incumbent upon Johnson to tender a return of the unearned premiums before a forfeiture could be claimed. In stating the rule of law governing cases of this nature the court said:

“ * * * It is well settled by the decisions of our courts that, when an insurance agent with power to bind his company, and with full knowledge of the facts, does some unequivocal act showing an intention to treat the policy as valid and binding after the date on which, under its terms, it would have become forfeited, such conduct will amount to waiver of the forfeiture provisions.” [Emphasis added.]

In each of the cases cited by the Court of Civil Appeals and discussed above, the agent of the insurance company was aware of the identity of the purchaser of the property and had been definitely informed that the new owner desired to maintain the insurance on the property in effect. Furthermore, in the Scott case, the agent told Scott that the policy was effective without an endorsement thereon and that his interest was still protected. None of these elements are present in the instant case. Instead, Campbell told Hickman that he must know the identity of the new owners or he could not make out the necessary endorsement, implying that he was unwilling to assent to a new contract insuring the new owners against loss without knowing their identity. Campbell did not know of the several transfers of title to the shoe store, including the foreclosure, or he might have elected to cancel the policy immediately. He was never given a definite commitment by Hickman that the new owners, whoever they were, would want to continue the insurance in force. In other words, as we view the facts Campbell does not come within the rule stated in the Brittain case in that he did not have full knowledge of the facts and did nothing which can be said unequivocally to have revealed an intention to effect a novation of the policy with parties unidentified as to him after the transfer of the insured property. Rather, the evidence indicates that Campbell, in making the inquiry as to the identity of the new owners, was interested in the character and personality of the parties with whom he would be contracting. The courts recognize the principle that this is information which the insurer is entitled to have before being bound to a contract personal in nature. St. Paul Fire & Marine Ins. Co. v. Culwell, 62 S.W.2d 100 (Tex.Com.App.1933); Lowe v. Michigan Fire & Marine Ins. Co., 236 S.W.2d 168 (Tex.Civ.App.1950, wr. ref.).

The contractual agreement between the insurer and the insured, embodied in the policy, is not an insurance of property without regard to the ownership, but rather it is an agreement of indemnity against such loss or damage as the insured owner might sustain by reason of his ownership of the property covered by the policy. Since the policies herein sued upon are personal contracts solely between Hickman and the insurers, and since the evidence shows no endorsement on the policies in favor of anyone other than Hickman, and since the judgment of the trial court, affirmed by the Court of Civil Appeals, denied Hickman, the insured, any right to the policy proceeds, Kay and Palestine and Bates, as trustees, complete strangers to the contract, are not in a legal position to recover an interest in the policy proceeds. Furthermore, Kay, Palestine and Bates asserted no claim of a right of action over and against Hickman in the event of a recovery by Hickman. Therefore, those plaintiffs have no interest in the insurance policy proceeds by way of assignment or by way of novation.

Kay, Palestine and Bates have been allowed to sue in their own right and to recover in their own right on policies of insurance in which they were not named as the insured apparently upon the theory that the facts not only established a waiver of the contractual provision involved, but created a contract between the insurance companies and Kay, Palestine and Bates, persons wholly unknown to them. The Court of Civil Appeals apparently adopted the theory that waiver of the chánge of ownership provision of the policy was shown to have been made in favor of Johnson, the Company’s liability in favor of Kay, Palestine and Bates was established, and that this being true, these parties were entitled to sue on the insurance contracts in their own right. This holding of the Court of Civil Appeals is untenable. The holding has given coverage in favor of strangers to the contract. There is no evidence that B. B. Campbell at anytime intended to waive the change of ownership provisions in the policies of insurance. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intention to rely upon such right. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958).

The judgments of the trial court and the Court of Civil Appeals are both reversed insofar as those judgments award a recovery of any sum of money against the two insurance companies and judgment is here rendered that the plaintiffs take nothing as against the defendants, Maryland Casualty Company and Pan American Insurance Company. In all other respects, the judgments of the courts below are affirmed, All costs are adjudged against the plaintiffs.

Affirmed in part and reversed and rendered in part.


text:
    Gerald Don DEARING, Petitioner, v. Reginald E. NUTTER et ux., Respondents.
    No. A-11351.
    Supreme Court of Texas.
    May 4, 1966.
    Rehearing Denied May 25, 1966.
    Touchstone, Bernays & Johnston, Dallas, Jim E. Cowles, with above firm, for petitioner.
    Rosenfield, Berwald & Mittenthal, Dallas, for respondents.
   PER CURIAM.

The application for writ of error in this case is refused, no reversible error. The Court of Civil Appeals has held inadmissible petitioner’s testimony as to the route he had taken many times before from his home to his wife’s place of employment and a map showing the layout of the route. 400 S.W.2d 346. In Missouri-Kansas-Texas R. R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), we held that evidence of a person’s habits could not be admitted to prove care or negligence when there was an eye witness to an accident. This was not a holding that evidence of a person’s habits was inadmissible where there was an eye witness to an accident and the evidence was offered for purposes other than to prove care or negligence. The testimony of Dear-ing with regard to the route he habitually traveled in taking his wife to work is admissible as tending to prove that Dearing was following his habitual route of travel on the occasion in question.


author: HAMILTON, Justice. HAMILTON, Justice.

text:
    FIRST NATIONAL BANK OF MISSION, Texas, Petitioner, v. Luther THOMAS, d/b/a Thomas Gin Company, Respondent.
    No. A-10543.
    Supreme Court of Texas.
    Oct. 13, 1965.
    On Rehearing April 6, 1966.
    Rehearing Denied May 4, 1966.
    Strickland, Wilkins, Hall & Mills, Asa V. Bland, Mission, for petitioner.
    Petry & Fitzpatrick, John W. Claybrook, Carrizo Springs, for respondent.
   HAMILTON, Justice.

The petitioner, First National Bank of Mission, Texas, instituted this suit to recover of J. M. Warren the amount of principal, interest and attorney’s fees due upon a note of $38,465.77. This note was secured by a chattel mortgage executed in favor of petitioner covering the cotton crop to be grown upon 400 acres of land located in Zavala County, Texas. This chattel morgage was also sought to be foreclosed and Luther Thomas, doing business as Thomas Gin Company, was sued for the alleged conversion of 265 bales of cotton allegedly grown by Warren and covered by the chattel mortgage of the petitioner. A jury trial resulted in judgment for the petitioner against respondent for $21,232.02 plus interest, less a credit of $4,243.56 held by the petitioner Bank. Petitioner also obtained a judgment against Warren for $12,-507.72 together with interest. Respondent recovered $16,988.46 plus interest from Warren.

Respondent alone appealed and the Court of Civil Appeals reversed and rendered judgment in its favor, holding that the petitioner had not met its burden of proving that its mortgagor, J. M. Warren, was the owner of the 265 bales of cotton. That court held that the evidence did not conclusively establish this fact in petitioner’s favor and since it was without the benefit of a jury verdict, petitioner Bank was not entitled to a judgment against respondent. Moreover, the Court of Civil Appeals said that the Bank could not recover in any event, since the evidence shows that it gave its permission to Warren to sell the cotton and therefore waived its chattel mortgage lien. 384 S.W.2d 219. We do not agree.

There are two issues that warrant our attention in this case. The first contention centers around whether the Court of Civil Appeals erred in holding that Warren’s ownership of the 265 bales of cotton was a disputed fact issue. A second contention concerns whether the evidence shows that Warren, armed with the conditional consent of petitioner to sell the cotton, did in fact give instructions to the respondent to sell the cotton in question, thereby bringing about a waiver of the Bank’s chattel mortgage lien.

From our review of the record in this cause, we note the following facts as to the first contention:

Respondent Gin Company’s general manager, Mr. Joe Laird, testified that in February, 1958, he and Warren orally agreed that respondent would finance most of Warren’s expenses in relation to Warren’s cotton crop as they had done each year for several preceding years, provided that there was no chattel mortgage on the crop. By April 11, 1958, respondent had advanced Warren some $1,600 for seed, fertilizer, etc.

On April 11, 1958, petitioner Bank and Warren agreed that he would execute a chattel mortgage on 400 acres of cotton to be grown in the year 1958 and subsequent years. This chattel mortgage was given to secure a $38,465.77 note made by Warren and was recorded in Zavala County on April 14, 1958.

After this the respondent loaned additional sums to Warren, culminating in a total of $21,232.02. The cotton grown o'., the land produced 265 bales, which were sold by the Gin Company for $37,671.43, the proceeds of which were credited against Warren’s debts to respondent Gin Company, with the remainder going to Warren.

In response to the special issues submitted, the jury found that there was actual and constructive knowledge of petitioner’s chattel mortgage by the respondent and that petitioner did not consent to the sale of the cotton in question.

Originally Warren owned these 400 acres. He bought and cleared the property in 1951 and in 1954 organized the Four Way Land Company, Inc., which took title to this property in return for 98 shares of its stock. This deed was properly recorded in Zavala County. Warren was the general manager, president and principal stockholder of Four Way. The corporation was formed for the purpose of growing and selling crops, although the evidence shows that it was organized to protect a personal debt of Warren to the Hartford Accident and Indemnity Company for $300,000. Consequently, Warren pledged his stock along with its voting rights to Hartford.

Warren testified as follows:

“Q. How many acres of cotton were you growing that year in 1958?
“A. As I remember, approximately 400 acres.
“Q. Who was in absolute possession of this land from 1954 on through 1958 ?
“A. I don’t know what kind of possession you are talking about. The title was in the name of the Four Way Land Company. In possession of it and farming it was J. M. Warren.
“Q. Did you farm this land in the years 1951 through 1958?
“A. Yes, sir.
“Q. Did you have an agreement with the Four Way Land Company concerning the use of this land?
“A. Yes, sir.
“Q. Was the agreement ever reduced to writing?
“A. No, sir.
“Q. Was there ever made any minutes or any resolution of the corporation reflecting your right to farm the land?
“A. No, sir.”

In addition to Warren’s 98 shares, Mr. Cadwallader and his brother owned one share each. Cadwallader in his position as secretary of Four Way gave the following testimony:

“Q. Are there any minutes reflecting the agreement that you had with Mr. Warren that he could stay in possession of the land ?
“A. There was no written agreement whatsoever.
“Q. Did the corporation hold title to any of the farm equipment?
“A. No, the corporation simply took a deed to the four sections of land, that is all.
“Q. Did you ever grow or sell fruits— that is, the corporation?
“A. No, sir.
“Q. Vegetables and tobacco?
“A. No, sir.
“Q. Cotton?
“A. The corporation? Not that I know of.”

Also Mr. Buescher, petitioner’s executive vice-president, testified as follows:

“Q. If you had known, Mr. Buescher, that this cotton and this grain was to he grown on land owned by the Four Way Land Company—
“A. —I just said, ‘Warren, are you farming it yourself, Mr. Warren?’ and he said, ‘Yes.’
“Q. That is as far your inquiry went ?
“A. Yes, sir.”

The preceding is strengthened by the fact that the respondent treated J. M. Warren as the owner of the cotton crop. All of the Gin Company’s invoice sheets, statements, charge slips and the like with regard to this cotton list Warren as the customer. Respondent’s general manager, Joe Laird, testifed that the contents of the settlement statement were correct and across the top of it were the words, “In account with J. M. Warren.” Mr. Laird also, as a government clerk for the Commodity Credit Corporation during this period, listed Warren on an application for a loan as the “producer.” This was done in respondent’s office and while it does not bind the Gin Company as such, at least it shows that it was aware of Mr. Warren’s position.

Perhaps the most convincing proof that Warren owned the cotton crop and was so treated by the respondent was that in 1955 the respondent took a chattel mortgage on the same property and crop from Warren which was filed of record and certified by the County Clerk. This was after the formation of the Four Way Land Company and the conveyance of the 400 acres to this corporation.

There is no real doubt that Warren was in possession of the cotton, had the use of the land, and was the owner of the crop. The proof is such that, as a matter of law, we hold that the petitioner has shown that Warren owned the cotton in issue. The only “proof”, if it could be called such, advanced by the respondent and relied upon by the Court of Civil Appeals, was the presumption that the owner of the land also owns the crops grown thereon, and the presumption that Warren as president was the proper person to be in possession.

However, with regard to “presumptions” we quote the following:

“ * * * the presumption places upon the party against whom it operates the burden of producing evidence sufficient to justify a finding of the nonexistence of the presumed fact * * *. Under this rule where the opponent produces sufficent evidence to justify a finding against the presumed fact the presumption vanishes and the situation is the same as it would have been had no presumption been created.” McCormick & Ray’s Texas Law of Evidence, pp. 62-63, Sec. 53.

Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768.

Petitioner came forward here with evidence that the cotton did belong to Warren and not to Four Way. As a result, the presumption as to growing crops disappeared and was of no consequence. There was no factual dispute as to the ownership of the cotton to justify such an issue being submitted to the jury.

Because of the position we take here, we do not deem it necessary to pass on petitioner’s other theories concerning the first contention.

The second contention urged by petitioner concerns the action of the Court of Civil Appeals in holding that the Bank waived its chattel mortgage lien by consenting to let Warren sell the cotton. The jury answered that petitioner did not consent to the sale which was made by the respondent.

The petitioner contends that even though Warren had the consent of the Bank to sell the cotton, conditioned upon his bringing the proceeds back to it, Warren did not authorize the respondent Gin Company to sell the cotton. Consequently, there was no waiver of the Bank’s chattel mortgage lien.

Respondent’s position is that since the Bank gave Warren permission to sell the cotton, provided that he bring back the proceeds to it, as against a purchaser with knowledge of the chattel mortgage but without notice of this conditional power of sale, petitioner has authorized Warren to sell to anyone and has therefore waived its chattel mortgage lien. In other words, respondent contends the consent given to Warren is sufficient in itself to waive the lien of the’ Bank. Cartwright v. Flatt, 244 S.W.2d 523 (Tex.Civ.App.1951, no writ history); Harding v. San Saba National Bank, 13 S.W.2d 121 (Tex.Civ.App.1929, writ dismissed).

We do not feel that respondent’s authorities cited above are in point. In those cases after the conditional consent was given by the mortgagee the mortgagor actually sold the goods covered by the chattel mortgage. In this present controversy there is evidence that Warren, the mortgagor, did not sell the cotton as he was authorized conditionally by the Bank to do, nor did he instruct the Gin Company to sell the 265 bales for him.

There is testimony that Warren was to dispose of the cotton in the above-mentioned manner for the Bank. Certainly the Bank never intended to sell it on its own. Warren told respondent to harvest and gin the cotton, but he testified that he gave the Gin Company no instructions as to the sale of the cotton, and that they had sold the cotton without his knowledge. Respondent acted as a broker for the large farmers in that area and in the past had always consulted with Warren as to the price before they sold his cotton to a buyer. This year, .though, Warren testified that this was not done. As soon as the petitioner found out from Warren that the cotton had been sold and the proceeds taken to satisfy the advances made by respondent to Warren, it made immediate demand upon respondent Gin Company.

The facts, as borne out by this record, indicate that there was no consent given by Warren, the petitioner’s agent, to the respondent authorizing the Gin Company to sell without first consulting Warren. Since there is no evidence that any of the Bank’s officers or employees ever communicated at any time with respondent, the only testimony for the jury to consider concerned Warren and his dealings with the respondent. The Court of Civil Appeals held that the testimony showed that the bank had authorized Warren conditionally to sell the cotton and that Warren did not testify that he did not authorize the Gin Company to sell the cotton. Warren testified that he gave no instructions to the Gin Company to sell the cotton, and since the Gin Company did not, as it had done for the past five or six years, consult him as to the price before it made the sale, we hold that this is some evidence to support the jury’s finding of lack of consent by the petitioner Bank. The Gin Company, by selling the cotton without first consulting Warren, never gave him an opportunity to inform the respondent of his conditional authority of disposal. Therefore, there was no waiver of its chattel mortgage lien by the petitioner.

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

POPE, J., not sitting.

ON MOTION FOR REHEARING

HAMILTON, Justice.

The motion for rehearing is granted.

On motion for rehearing it has been pointed out to us that respondent had assigned as a point of error before the Court of Civil Appeals that the jury’s answer to Special Issue No. I was against the great weight and preponderance of the evidence. The holding by the Court of Civil Appeals that there was no evidence to support the jury’s finding to Special Issue No. I encompasses a holding that said finding was against the great weight and preponderance of the evidence. This being a fact issue, we are without jurisdiction to pass upon this matter. Therefore, under the authority of Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798 (1954), we modify our judgment to the extent that we remand the case to the trial court rather than affirm the judgment of the trial court. It is so ordered.


text:
    Patrick A. TURCOTTE et al., Petitioners, v. ALICE NATIONAL BANK et al., Respondents.
    No. A-11089.
    Supreme Court of Texas.
    May 4, 1966.
    Rehearing Denied June 1, 1966.

      Fischer, Wood, Burney & Nesbitt, Corpus Christi, E. Jack Cook, Kingsville, William C. Wright, Roberto M. Benavides, Tom N. Goodwin and John E. Fitzgibbon, Laredo, Burch Downman, Houston, for petitioners.
    Waggoner Carr, Atty. Gen., Austin, Baker, Botts, Shepherd & Coates, Houston, Horkin, Nicolas & Nicolas, Corpus Christi, Elmore H. Borchers, Laredo, Perkins, Floyd, Davis & Oden, Alice, for respondents.
   NORVELL, Justice.

The question in this case is whether an appeal from a temporary injunction issued by a County Judge sitting in probate lies to the Court of Civil Appeals or to the District Court.

The petitioners seek to set aside the order probating a will bearing date of January 22, 1960 and certain codicils thereto, executed by Sarita Kenedy East. The respondents are the proponents of said will. On June 25, 1964, the Honorable William R. Edwards, Special County Judge of Kenedy County, sitting in said probate cause, issued a temporary injunction enjoining respondents from taking any action in a District Court of the State of Texas which would interfere with the County Court’s enforcement of any orders theretofore or thereafter entered by it. From this order, an appeal was prosecuted to the District Court of Kenedy County. Petitioners filed a motion to dismiss the appeal because of a want of District Court jurisdiction. This was overruled by the District Judge who assumed jurisdiction and rendered judgment vacating the temporary injunction. The Court of Civil Appeals affirmed. 394 S.W.2d 228.

In our opinion, an appeal from a temporary injunction in probate lies to the Court of Civil Appeals rather than to the District Court.

Article 2251, Vernon’s Ann.Tex.Civ. Stats., provides:

“Appeals from orders of the district and county courts granting or dissolving temporary injunctions shall lie in the cases and in the manner provided in the title ‘Injunctions.’ ”

Article 4662, which is part of Title 76 relating to Injunctions, provides in part that:

“Any party to a civil suit wherein a temporary injunction may be granted or refused or when motion to dissolve has been granted or over-ruled, under any provision of this title, in term time or in vacation, may appeal from such order or judgment to the Court of Civil Appeals. * * * Such case may be advanced in the Court of Civil Appeals or Supreme Court on motion of either party, and shall have priority over other cases pending therein.”

A substantial portion of Article 4662 of the 1925 Revised Statutes has been rewritten in rule form. Rule 385 provides:

“Appeals from interlocutory orders (when allowed by law) may be taken by
“(a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, in an amount and to be approved and conditioned as required by the rules governing appeals generally; and
“(b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof. * * * ”
“(d) Where the appeal is from an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve such an injunction, the cause may be heard in the Court of Civil Appeals or the Supreme Court on the bill and answer and such affidavits and evidence as may have been admitted by the judge of the court below. Such appeal shall not have the effect to suspend the order appealed from, unless it shall be so ordered by the court or judge entering the order. * * * ”

The respondents urge that regardless of whether the temporary injunction issued by the Special County Judge would be appeal-able as a decision, order or decree finally disposing of and conclusive of an issue or controverted question in a probate cause under the rule laid down by this Court in Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210 (1960), such order is rendered ap-pealable by the provisions of Article 2251. They say, however, that despite the direction that appeals from orders granting or dissolving temporary injunctions shall be controlled by the Title relating to Injunctions, such appeals go to the District Court in accordance with that section of the Rules of Civil Procedure relating to “Review by District Courts of County Court Rulings”.

We are unable to agree with this position. While a temporary injunction may be issued in a suit where the final relief sought is a perpetual injunction, its use is by no means restricted to the injunction suit. The temporary writ may be and usually is issued in connection with any species of litigation where it is necessary to preserve the status quo pending a final adjudication of the rights of the parties. This being the usual purpose of the writ, we may examine the provisions of the injunction statute and rules ancillary thereto and compare them with the provision contained in the probate code relied upon by respondents, keeping such purpose in mind.

It is respondents’ position, accepted by the Court of Civil Appeals, that Section 28, Vernon’s Ann. Probate Code, taken with Rules 332 to 339, incl. (Section 12, Review by District Courts of County Court Rulings), of the Texas Rules of Civil Procedure, controls over the provisions of said Articles 2251 and 4662 relating to injunctions.

Section 28 of the Probate Code provides:

“Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the court shall have the right to appeal therefrom to the district court of the county. Pending appeals from orders or judgments appointing administrators or guardians or temporary administrators or guardians, the appointees Shall continue to act as such and shall continue the prosecution of any suits then pending in favor of the estate. If on appeal from the county court, a different administrator or guardian is appointed, he shall be substituted in such suits.”

Rule 335 reads as follows:

“The appeal shall suspend the decision, order, decree or judgment, or the designated portion thereof appealed from, except as may be otherwise expressly provided by law; and further provided, that no appeal under Rule 334 shall suspend any decision, order, decree or judgment, or any designated portion thereof, unless so ordered by the probate or county court.”

An appeal bond was filed in this case.

Rule 385, par. (d), provides that, “Such appeal shall not have the effect to suspend the order appealed from, unless it shall be so ordered by the court judge entering the order”. An appeal under the injunction provisions is heard “on bill and answer and such affidavits and evidence as may be admitted by the judge of the court below,” and such cases are given a statutory priority and hearings thereon may be advanced.

On the other hand, if the provisions of the probate code be followed, the appeal would operate to suspend the temporary injunction and the matter would have to be considered anew by the District Court.

It seems that the effectiveness of the temporary injunction which has for its purpose the maintaining of the status quo pending final hearing could be readily defeated by taking an appeal to the District Court. In our opinion, the Legislature did not intend that appeals from temporary injunctions should be controlled by the provisions of the probate code. The remedy is specially provided for by statutory enactment and the procedure relating thereto is controlled by such statutes and the Rules of Civil Procedure relating thereto.

We recognize that a problem exists as to whether a temporary injunction issued in a probate cause should be considered simply as another order in probate or as an injunction and subject to the appellate rules applicable to injunctions. This problem to our minds is solved by giving consideration to the ends and purposes which the temporary injunction is intended to serve. The statutory and rule plan for issuing and appealing a temporary injunction is efficient and effective and there exists no compelling reason from a practical standpoint why such statutes and rules should not also apply to the temporary injunctions issued in probate proceedings. Cf. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927).

In their briefs, the respondents place chief reliance upon Beversdorff v. Dienger, 107 Tex. 88, 174 S.W. 576 (1915), and Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935). A temporary injunction was not involved in Beversdorff. The appeal was from an order probating a will, of which the District Court admittedly had jurisdiction. The question was whether a notice of appeal was essential to invoke such jurisdiction. This Court held that it was not. In Allred v. Beggs, this Court considered an appeal from a temporary injunction issued by a District Court against an independent executor. The appeal was to th'e Court of Civil Appeals and thence to this Court by writ of error. There was no question of an appeal to a District Court in the case.

We hold that an appeal from a temporary injunction issued by a County Judge, sitting in a probate matter designed to protect his jurisdiction, lies to the Court of Civil Appeals.

The judgments of the District Court and the Court of Civil Appeals are reversed and judgment here rendered dismissing the attempted appeal to the District Court for want of jurisdiction.

Judgments reversed and appeal dismissed.


author: WOODLEY, Judge.

text:
    Jerry Ross PLATT, Appellant, v. The STATE of Texas, Appellee.
    No. 39621.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Will Gray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Joe Naron, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of heroin; the punishment, enhanced by prior convictions, one for unlawfully breaking and entering a motor vehicle and the other for burglary; life.

Sentence was pronounced and notice of appeal given on December 22, 1965.

The evidence adduced before the jury reflects that shortly after 9 o’clock P.M. on Sunday, August 8, 1965, Houston Police Officer B. E. Majors of the Narcotics Division received information in connection with appellant, which information he conveyed by telephone to Police Officer T. A. Bell, who was at the Ben Taub Hospital Emergency Room with his partner, Officer E. G. Adams.

As a result of receiving such information, Officer Bell found appellant at the hospital and arrested and searched his person. In his left shirt pocket Officer Bell found a cellophane paper containing a white powder which was shown by test to be approximately 30 miligrams of 21 percent pure heroin.

In appellant’s left trousers pocket Officer Bell found a syringe, eye dropper, some needles, aspirin tin and cotton, all wrapped in a paper towel.

An examination of these articles for narcotics revealed that the eye dropper and needles contained .10 miligrams of heroin and the aspirin tin and cotton contained 1.2 miligrams of heroin.

The indictment alleged that appellant was convicted in Criminal District Court No. 5 of Harris County on February 10, 1961, for the offense of unlawfully breaking and entering a motor vehicle; and that after said conviction became final appellant committed the offense of burglary and on May 21, 1964, was convicted of said offense of burglary in Cause No. 109657, in Criminal District Court No. 4 of Harris County.

The two prior convictions were proved by records from the Texas Department of Corrections, court records and finger print testimony.

Appellant challenges the sufficiency of the evidence to sustain the allegation that the conviction for burglary in Cause No. 109657, on May 21, 1964, was for an offense committed after February 10, 1961 (the date of the first conviction).

The indictment in Cause No. 109657, filed April 1, 1964, was introduced in evidence. It alleged that the offense was committed on or about February 6, 1964.

Patrolman K. P. Meyers, of the Houston Police Department, testified that he was involved in the investigation of a burglary which took place on February 4, 1964, as the result of which investigation appellant was indicted in Cause No. 109657.

Appellant’s contention that the evidence is insufficient to sustain the allegations of the indictment as to prior convictions is overruled. Gomez v. State, Tex.Cr.App., 365 S.W.2d 176.

The contention that appellant was denied his constitutional rights by the reading of the indictment and the introduction of evidence before the jury as to the prior convictions is overruled. Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and cases cited; Sims v. State, Tex.Cr.App., 388 S.W.2d 714.

Appellant’s contention that he was compelled to give evidence against himself when the state was permitted to introduce his finger prints taken on the morning of his trial, in the absence of his lawyer, is without merit. Gage v. State, Tex.Cr.App., 387 S.W.2d 679; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365.

Appellant presents three points of error directed to the admission of the evidence, over his objection, which was obtained as the result of his arrest and search without a warrant.

He contends that Officer Bell did not have probable cause for such arrest, search and seizure; that the evidence used against him was the fruit of an illegal arrest, search and seizure and that such evidence was obtained in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States.

The trial court heard testimony relating to appellant’s arrest and search outside the presence of the jury before admitting the evidence complained of.

Officer Majors testified that he was on duty in the downtown area shortly before 9 o’clock P.M. on Sunday, August 8, 1965, when he received information by telephone from a person who on several occasions in the past had given him information regarding known narcotics users and their whereabouts, which he had found to be correct, two of which had resulted in indictments.

Officer Majors testified that the informer, whose name he would rather not disclose, left a number for him to call; that he called the number and was told that appellant was at the Ben Taub Hospital at that time and had narcotics in his possession; that Jo Jo Jackson was with him; that he did not know how long appellant would stay there; that appellant would be in the Coffee Shop. He testified that he conveyed said information by telephone to Officer Thomas A. Bell, who was in the Emergency Room at the Ben Taub Hospital.

Officer Bell testified as to having received such information while in the Emergency Room, and testified:

As he and his partner, E. G. Adams, entered the Coffee Shop or bar he saw appellant and Jo Jo Jackson; that he began talking to Jo Jo and appellant turned around and looked at him and started walking out hastily; that Jo Jo started walking out after him and that he stopped appellant after he got outside and arrested and searched him.

The trial court did not err in concluding that Officer Bell had probable cause to arrest and search appellant without a warrant. Clifton v. State, Tex.Cr.App., 399 S.W.2d 353; Converse v. State, Tex.Cr.App., 386 S.W.2d 283; Jones v. State, Tex.Cr.App., 264 S.W.2d 722.

The contention that the trial court erred in permitting Officer Majors to testify before the jury, over objection that it was hearsay, that he received information concerning appellant and conveyed such information to Officer Bell without disclosing what the information was, is without merit. Lock v. State, 334 S.W.2d 292.

The remaining claim of error which relates to argument of counsel for the state is not presented by formal bill of exception nor is the argument of said counsel brought forward in the statement of facts. Muro v. State, Tex.Cr.App., 387 S.W.2d 674.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    John Henry MIDDLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 39589.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles L. Caperton, Donald D. Koons and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, 30 years.

Henry O’Neal testified that on the night in question he went to the Hill Top Cafe where he sat with friends and consumed some beer. He stated that appellant, whom he knew only by sight, came in the cafe about closing time and that he bought the appellant a beer. Subsequently, according to his testimony, he and appellant left in O’Neal’s automobile and drove to an after hours place where appellant, using O’Neal’s money, bought a half pint of whiskey. After consuming some of the whiskey, O’Neal offered to take appellant to his home, however, O’Neal became suspicious and drove back to the Hill Top Cafe. Appellant got out of the passenger’s seat, walked around the front of O’Neal’s automobile and approached the driver’s side, whereupon he hit O’Neal several blows, dragged him from the automobile, ran his hand in O’Neal’s pockets, took approximately eighty dollars, his new hat and his watch, and ran away. Appellant was not apprehended until several months later, and O’Neal identified him at a police lineup.

Appellant did not testify in his own behalf, but called several witnesses, including his brother, Ray, who testified that O’Neal was drunk and flashing a roll of money on the night in question and had accused others of having robbed him on the occasion in question. Appellant called Henry O’Neal as a witness and on cross-examination, without objection, he testified that when he had informed appellant’s brother, Ray, that appellant had robbed him, Ray had said, “that sounds about like him”, and that appellant had “skipped town” and later informed the witness Ray that he was in Midland.

In order to show that violence was used in the commission of the robbery, the State called the Department Manager of Medical Records at Parkland Hospital, who testified such records revealed that Henry O’Neal was admitted to the hospital on the night in question and released some ten days later after being treated for a broken jaw. Appellant’s objection that such testimony was irrelevant was properly overruled. His objection that the records had not been introduced in evidence might have raised a serious question had it been timely made, but where, as here, it was made at the end of the record clerk’s testimony, it was clearly too late. Dobbs v. State, Tex.Cr.App., 398 S.W.2d 557. This is especially true since no motion was made to instruct the jury to disregard the testimony which had already been admitted.

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


author: McDONALD, Presiding Judge. DICE, Commissioner.

text:
    Donald Arthur PREBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 39046.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied April 13, 1966.
    Second Motion for Rehearing Denied June 1, 1966.
    Ray Stevens, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward B. McDonough, Jr., and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was found guilty of the misdemeanor offense of unlawfully driving and operating a motor vehicle upon a public street and highway while his license was suspended; the punishment, a fine of $1500.00.

Appellant stipulated to the two prior convictions alleged in the information and complaint. He further stipulated that he was legally arrested on April 28, 1965, while driving a motor vehicle on a public street and highway in Houston, Harris County, Texas, and that his license was suspended at the time.

J. R. Dvorsky, Texas Department of Public Safety employee and custodian of appellant’s driver’s record, testified as to the following facts:

On May 31, 1962, appellant’s operator’s license was suspended for a period of twelve months after the Corporation Court of Houston found him to be an habitual violator of traffic laws under the provisions of Section 22, Article 6687b, Vernon’s Annotated Civil Statues.

On December 14, 1962, appellant was convicted of driving while license suspended and, under Section 24, Article 6687b, V.A. C.S., his license was automatically suspended for an additional year, beginning May 31, 1963.

On February 1, 1963, appellant’s license was suspended for an additional twelve months under Section 22 of the same article upon a finding of the Corporation Court of Houston that appellant had committed an offense for which automatic suspension is made. This suspension began May 31, 1964, and, by its terms, would have terminated May 31, 1965.

It is uncontradicted that, by its own terms, appellant’s driver’s license expired on March 21, 1963 — over two years before his arrest in this cause. The license was not renewed.

Three other orders of suspension were issued on subsequent occasions for offenses committed after the expiration date of appellant’s license, with the result that, at the time of his trial, appellant’s license was purportedly suspended until May 31, 1968. As these suspensions are not material to the disposition of this case, detailed discussion is not necessary.

Appellant advances one contention for reversal of this cause. It is his position that an operator’s license, expired by its own terms, cannot be in a state of suspension; therefore, conviction for driving while license suspended, based on an act committed after the expiration date of the operator’s license, was error.

Since the present offense occurred on April 28, 1965, we are concerned here only with those suspensions of May 31, 1962; December 14, 1962; and February 1, 1963, which the state contends have the effect of suspending appellant’s operator’s license until May 31, 1965. These suspensions were for offenses committed during the life of appellant’s license.

Contentions of a related nature were considered in the recent decision of the Houston Court of Civil Appeals in Texas Department of Public Safety v. Preble, 398 S.W.2d 785, January 27, 1966. In that case, Preble (appellant here) sought a declaratory judgment that all suspensions of his operator’s license for offenses committed after his license had expired of its own terms, were of no effect. The trial court concluded that there was no authority to suspend a license for offenses committed after the expiration date of that license, but that for offenses committed during the life of the license, that license could be suspended even though the terms of such suspension extended beyond the expiration date of the license. In other words, the trial court concluded that the suspensions of May 31, 1962; December 14, 1962; and February 1, 1963, with which we are herein concerned, were effective to suspend the license until May 31, 1965.

The Court of Civil Appeals, speaking through Chief Justice Spurgeon E. Bell, who was formerly the respected and capable State’s Attorney for the Court of Criminal Appeals, reversed the judgment of the trial court insofar as it declared that the suspensions for convictions occurring after March 21, 1963, were ineffective. Judgment was rendered declaring that the convictions for driving while license is suspended on May 28, 1963; August 27, 1963, and December 23, 1963, were each effective to automatically suspend appellant’s privilege to operate a motor vehicle for an additional one year period; that the periods of suspension are cumulative; and that such license or privilege to drive stands suspended until May 31, 1968.

This Court has also written on this issue. In Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654, appellant’s license was suspended on August 3, 1956, and expired one month later on September 7, 1956. The Court affirmed a conviction for driving while license was suspended where the offense occurred on March 31, 1957 — six months after the expiration date of the license, but during the term of suspension.

Appellant relies upon Department of Public Safety v. Austin, 163 Tex. 280, 354 S.W.2d 376; Bryant v. State, 163 Tex.Cr.R. 544, 294 S.W.2d 819; Rushing v. State, 161 Tex.Cr.R. 334, 277 S.W.2d 104; and Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67.

Department of Public Safety v. Austin, supra, does not support appellant’s position. In that case the Department appealed from the decision of a county court setting aside a Department suspension. While the appeal was pending, Austin applied for a renewal license. In light of Section 18, Article 6687b, V.A.T.S., as construed in Texas Department of Public Safety v. Azar, 1954, Tex.Civ.App., 274 S.W.2d 911, error refused, n. r. e., the Department had no alternative but to issue the renewal license. The Court of Civil Appeals thereafter dismissed the appeal, holding that since the suspended license had expired, the case had become moot. Although the license which had been suspended had expired, and a new license issued, the Supreme Court reversed and remanded the case for a decision on the merits. The effect of the Supreme Court decision must be that the privilege to drive may be suspended beyond the expiration date of the license.

In Bryant v. State, supra, conviction was reversed by this Court because the proof showed that the operator’s license of the accused had expired prior to the date he was charged with having driven while his license was suspended, and no order of suspension had been issued prior to the expiration date of the license. In other words, the evidence there failed to show that there ever was a suspension. Such is not the situation in the case at bar.

Rushing v. State, supra, involved a conviction for driving while license was suspended which was reversed by this Court because there was no proof that an operator’s license had been issued to the accused or, if one had been issued, that it was suspended. There is no such deficiency in the state’s proof in this case.

In Boston v. Garrison, supra, appellant sought to enjoin the Department from suspending his license, and the license expired during the pendency of this action. The Supreme Court of this State dismissed the appeal because the question was moot, stating that the life of the license was not extended by the appeal. We are not in disagreement with this decision. Section 31, Article 6687b, V.A.T.S., which authorizes appeal from orders denying, cancelling or revoking a license, provides that the license shall not be suspended pending the appeal. This being true, the license was not suspended when it expired. This distinguishes Boston from the case before us. See Drake v. Texas Department of Public Safety, 393 S.W.2d 320.

We think that Chief Justice Bell correctly interpreted the law when he stated in Texas Department of Public Safety v. Preble, supra:

“Article 6687b, Section 4, Sub section 4, provides appellant shall not issue a license to an operator whose license has been suspended, during the period of such suspension. The necessary meaning of this is that a person has at one time had a license, it has expired or is expiring, so there is need to obtain the issuance of another license, but none can be issued if the applicant’s privilege to drive is in a state of suspension. If a state of suspension ended with the expiration date of the license, as appellee contends, then this provision of the law would be meaningless.”

We further agree with Chief Justice Bell’s conclusion that what is suspended as a result of these convictions is the privilege of driving, and not merely the license issued by the Department, which is merely documentation of the fact that its holder may lawfully operate a motor vehicle.

From our review of the above cases and statutory provisions as we interpret them, we reach the conclusion that, notwithstanding the fact that appellant’s license bore an expiration date of March 21, 1963, his license or privilege to drive a motor vehicle on the streets and highways of this State was effectively suspended on April 28, 1965, by virtue of the orders entered prior to such expiration date.

The evidence is sufficient to sustain appellant’s conviction.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that in our opinion on original submission we misinterpreted his contentions and that the questions presented were as stated on page 3 of his brief, as follows:

(1) Was the suspension order of February 20, 1963—to become effective fourteen months after appellant’s license had expired—a valid suspension?

(2) Was the extension order, entered after his license had expired, valid and effective ?

We have again reviewed the record in the light of the questions presented and remain convinced that a proper disposition was made of the case on original submission.

As shown in our original opinion, appellant was issued an operator’s license which bore an expiration date of March 21, 1963.

Prior to such expiration date, the license was three times suspended—on May 31, 1962, December 14, 1962, and February 1, 1963—for periods of one year, under the provisions of either Section 22 or 24 of Article 6687b, supra. The suspensions were cumulated, and the last suspension terminated on May 31, 1965. Other orders of suspension were made after the expiration date of the license, which as stated in our original opinion, are not material to a disposition of the case.

In Goolsby v. State, supra, cited in our original opinion, this court affirmed a conviction for driving-while-license-suspended, where the license was suspended prior to its expiration date and the offense was committed after such date but during the period of suspension.

We adhere to such decision and reaffirm our holding that the orders of suspension entered prior to the expiration date of appellant’s license were valid and cumulative so as to suspend the license beyond the expiration date (March 21, 1963) stated thereon.

Under such orders, appellant’s license was in a state of suspension on April 28, 1965, when he operated his automobile upon a public street and highway.

In our original opinion we cited the opinion of Chief Justice Bell, of the Houston Court of Civil Appeals, in Texas Department of Public Safety v. Preble, 398 S.W.2d 785, in support of the conclusion reached in the present case. In that case the same three suspensions of appellant’s license were held to effectively cumulate and extend the period of suspension to May 31, 1965.

Appellant suggests that the opinion of the Court of Civil Appeals is incorrect in treating the February 1, 1963, suspension as one under Sec. 24 of Art. 6687b, supra, upon a conviction for driving-while-license-suspended, because in fact it was made under Sec. 22 of Art. 6687b, supra, upon an affirmative finding by a corporation court.

Whether the suspension was under Sec. 22 or Sec. 24 of Art. 6687b does not affect its validity. If under Sec. 24, it was a valid automatic suspension, and cumulative. If under Sec. 22, as shown in the record before us, it was made by the Department under the provisions of Sec. 22(b) 1, which reads:

“The authority to suspend the license of any operator, commercial operator, or chauffeur as authorized in this Section is granted the Department upon determining after proper hearing as hereinbefore set out that the licensee:
“(1) Has committed an offense for which automatic suspension of license is made upon conviction

We hold that in ordering a suspension under this provision of the statute, the Department was authorized to make the same cumulative with other prior suspensions.

The motion for rehearing is overruled.

Opinion approved by the court.