author: MORRISON, Judge. McDONALD, Presiding Judge. MORRISON, Judge WOODLEY, Judge

text:
    Ex parte Paul Eric KRUEGER.
    No. 38435.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Rehearing Denied June 26, 1965.
    Warren Burnett, Odessa, Luther E. Jones, Jr., Marvin Foster, Jr., Corpus Christi, for appellant.

      Sam L. Jones, Jr., Dist. Atty., Nelson R. Sharpe, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order denying appellant bail, after indictment for murder in three cases numbered 1771, 1772 and 1773 in the District Court of Kleberg County.

After a careful consideration of the record, we conclude that appellant is entitled to bail in the sum of $15,000 in each of the three cases. The judgment of the trial court denying bail is reversed, and the appellant will be admitted to bail and released from custody upon the execution by him of a bond in the sum of $15,000 in each of the three cases, with good and sufficient sureties, conditioned and approved as the law directs.

Ordered accordingly.

ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

The Constitution of Texas, under the section known as the Bill of Rights, Art. 1, Section 11, says: “All prisoners shall be bailable by sufficient sureties, unless for certain offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.” The term “proof is evident”, as therein used, means evidence clear and strong, leading a well-guarded judgment to the conclusion that an offense was committed; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered. Ex Parte Coward, 170 S.W.2d 754, 145 Tex.Cr.R. 593, and cases there cited.

The burden of proof is upon the State to show that refusal of bail is warranted. Ex Parte Readhimer, 123 Tex.Cr.R. 635, 60 S.W.2d 788. Necessarily then, the trial court construed the facts presented as showing a case of “proof evident”. In our original opinion we determined that the trial court was not authorized to reach such a conclusion, and we granted bail.

We did not in our original opinion recite the facts. We shall now do so.

The evidence adduced at the hearing is set forth as shown in the statement of facts and in the order therein adduced. M. S. Burton testified as the state’s first witness. He related that he was a Sergeant of the Patrol Division of the Sheriff’s Office of Nueces County; that he was called upon to go out to Flour Bluff and the Island there in Nueces County. He was accompanied by Deputy Sheriff Jim Murray and City Police Officers Tommy Lowrance and Manuel Garza. This was on Tuesday, April 13, 1965, at approximately 4:40. They went out on the John F. Kennedy Causeway to check bait stands, out on the In-tracoastal Canal by the swing bridge. They were checking these bait stands for a missing boat. They found that an aluminum boat was missing from Graham’s bait stand. The boat had either a 5 or 10 h. p. small outboard motor. After leaving the boat stand they came across the John F. Kennedy Causeway, across the Intracoastal Canal, 150 to 200 yards on the north side of the causeway along the edge of the channel and they found an aluminum boat, about ^ths of a mile from Graham’s bait stand. They then radioed for a helicopter to be sent where they were. About 15 minutes later a helicopter arrived from the Navy base, a short distance away. Burton and Garza got into the helicopter and went in a southerly direction approximately 6 miles to an island not accessible to a land vehicle. When they got out that distance they “spotted one body in the water”, a human body. They stopped at the pier and could see underneath the pier. Burton said, “and I saw what appeared to be two more bodies under the pier”. This was approximately 5:30 in the afternoon, and they were approximately 100 feet up in the air. They landed on the little spoil island. There was a little shack on the island. The bodies were found about 200 to 250 feet from this shack. Burton remained with the bodies and then Manuel Garza and Tom Low-rance arrived. The island is located in Kleberg County. Burton testified he was present the next morning when the items found in the missing boat were taken to the Sheriff’s Office. He testified that 4 rifles and a shotgun, camping paraphernalia, a sleeping bag, cans of gasoline, some ammunition, a tent, a machete, two gigs and an army helmet were found in the boat the officers had located. He inspected the cabin or shack and there was no sign of a struggle. They found some ejected shells on the ground approximately 12 feet from the end of the pier, approximately 93 or 94 feet from the first two bodies. Burton testified that he found 6 empty cartridges and 1 live round. There was no marking on the base of the bullet that would state the caliber. “They appeared to be 243.” He found some two-pronged gigs and 3 fishing poles on the end of the pier and in the water. They found a 17 foot long Mercury 75 h. p. boat, tied to the pier with a rope. They “saw tracks all over the place”, but no plaster casts were made, so far as Burton knows.

Tom Lowrance testified for the state and related that he assisted the undertaker in getting the bodies. One man’s body had two distinct holes, 3 to 4 inches in diameter in it. Ammunition found was 243, “that Armalite type”, and he found one large 30 cartridge shell. One of the weapons found in the missing boat, 458 Magnum, appeared to have been fired recently. There was one empty shell in the barrel, the only one in it. He found no Magnum ammunition in the boat. None of the other guns appeared to have been recently fired.

William L. Burch, deputy sheriff at Corpus Christi, testified that he took the pictures of the dead men, admitted without objection.

Mrs. Edna E. Krueger testified as a state’s witness. She related that she lived in San Clemente, California; that she was the mother of the appellant; that appellant was 17 years of age on his last birthday this year, January 9. Here we quote Mrs. Krueger’s testimony:

Q: “Now then, I believe that for some time prior to April 9th of this year, your son had collected various rifles and pistols, is that correct?”
A: “Yes”.
Q: “Can you tell us what weapons were in your son’s collection ? ”
A: “I don’t know what weapons were ' in his collection.”
Q: “Or the make or caliber?”
A: “No”.
Q: “Had you ever accompanied him to the sporting goods store there in San Clemente when he purchased a 458 Magnum rifle?”
A: “I accompanied him.”
Q: “On the purchase of that particular rifle?”
A: “Several times when he purchased rifles.”
Q: “Can you tell us how long he had had a 458 Magnum rifle?”
A: “No, I don’t exactly remember.”
Q: “Did he purchase it sometime last fall?”
A: “I don’t really know.”
Q: “Do you know whether or not before April 9th of this year your son had also purchased what is. known as an A.R. 15 or Armalite rifle?”
A: “He purchased one, I don’t know if that was it, but I know he purchased one, his last purchase.”
Q: “His last purchase was a rifle of that nature? ”
A: “I don’t really know.”

She last saw her son late in the afternoon of April 9, 1965. She had a 1963 Thunderbird. She testified that she and her husband went out to dinner, and she left her car at home. She later claimed the car in Kingsville, Texas. When she returned home from dinner her son was gone and her Thunderbird was missing. She notified the San Clemente Police Department and she.checked her son’s gun collection and found some of the guns missing. She related that her son had 3 or 4 pistols. She further testified that she got a call from her son from Casas Grande, Mexico, and that her son used the name Bud Lauer to call her. She stated that she knew he was wanted for three murders when she received the call, but she did not report the call to anyone except her husband. She offered to go to him, but she did not ask him to surrender himself or to come home. She next saw her son in jail in Juarez, Mexico. She testified that his hair wasn’t “quite as short as this, but it wasn’t long”, in California.

Robert E. Morris testified for the State and related that he worked at Graham’s bait stand, Padre Island. The witness related that he saw appellant and another boy, a dark complexioned boy with heavy whiskers. He rented a boat to the dark complexioned boy, his testimony reflecting that this was prior to the witness hearing about 3 men being killed over on the Intra-coastal Canal. Morris testified that he rented a 5Yz h. p. Johnson Motor for 12 hours and the boy handed him a $10.00 bill. He showed the appellant how to run the boat. The boy with the beard left in the car, and the witness did not see the boat again until Wednesday morning. The boat was a 14 foot Starcraft, aluminum type boat. The boat was returned to him by the Sheriff’s Office of Nueces County. It was the one they had discovered over on Packery Channel. Morris stated that the young man who rented the boat wrote his name down as Angles.

Sam Parrino testified that he worked at Buck’s Sporting Goods, Corpus Christi. On Monday, April 12, 1965, he saw the appellant and another individual with a heavy beard, at the store where he worked. They bought $15.08 worth of items, including 3 five gallon fuel cans, Admiration make. He filled them with fuel, and they also bought two flounder gigs. He identified the two gigs introduced in evidence by the state as being similar to the ones that he sold them. They paid for the purchase with a Richfield Credit Card signed by Paul Krueger. They bought nothing else but the cans, fuel and gigs. They did inquire about shotgun shells, but Parrino did not have them. They made inquiry about two magazines for sporting type high powered rifles. He said he didn’t carry such items, but he-wrote down on a brown paper bag the type of gun and the street number of the House of Guns in Corpus Christi, and he called there in the boys’ presence, and told them to go to the House of Guns.

Chief Deputy Constable, Precinct No. 8, Nueces County, Lee Brown, testified that he was on duty at Padre Island near the toll gate; that he saw a 1963 Thunderbird with California license plates on Sunday afternoon. He checked to see if it were stolen because the two persons in the car, the manner of their dress, and their appearance, did not seem to match the expensive car. He identified appellant as one of the people in the car. He got a report that the car was not stolen. Mr. Brown stated that he saw the car at the Dunes Motel on Sunday night and then on Monday morning he saw the two men in the car heading out toward Padre Island towards the beach.

Sheriff Johnny Mitchell of Nueces County testified that he went to Graham’s bait stand with Sheriff Scarborough, Ralph McGee and Bill Worth. Undertaker Ross Langham joined the party at the bait stand, and they went in a Texas Game Commission boat over about 6 miles away to Marker 35A on the Intracoastal Canal. About 6 or 8 feet on the beach from the pier he took possession of some spent rifle shells. He stated “one was a 30 caliber carbine and the others were Armalite ammunition, small size, small shell, small caliber.” He saw the three bodies and was there when they were brought up on the pier. The sheriff testified that he had been a law enforcement officer 27 years and had seen the results of shots from different kinds of guns. He had examined wounds on persons caused by different types and caliber of rifles. He testified that he did not do any ballistical study on any slugs found in the bodies and didn’t know that any had been done. He had been advised by the doctor who did the autopsy, that some slugs were removed from the bodies, but “I don’t know”. He stated that he released all of the evidence to the sheriff of Kleberg County. He further testified that the body that had the two large holes in the stomach was that of Mr. Little. The sheriff was then asked: “From the size of the holes, caused by whatever gunshot it was, excluding the 458 Magnum, in your opinion, could that wound have been caused by any of the other guns in that boat? ” The sheriff replied: “no.” Objection was then taken and the Court said: “I will sustain the objection as to the small holes, but I will overrule the objection as to the large one.” Sheriff Mitchell was then asked: “And, in your opinion, would you say the 458 Magnum could have caused it ? ” He replied: “Yes”. The sheriff further testified that a 458 Magnum “is referred to in the way of hunting as an elephant gun or rhino gun.” He stated that a 458 Magnum was recovered from the boat that he examined. He testified that he examined the gun and there was a spent shell in it and the chamber still had powder burns in it. He testified that he observed the two large wounds and they could have been caused by any 454 or 458 Magnum, but he didn’t believe a pistol would do it because the grain of the bullet is not big enough, but that there are probably pistols made that would match a 458 Magnum, and “a Magnum type gun is a common weapon.” The sheriff testified that he made no fingerprints, nor did he cause any kind of laboratory study to be made. He further testified: “It wasn’t my case. I felt there should have been.” He related that he did not know of any type of laboratory test that was made to determine whether or not there was blood on the gigs. There was some stain on there but he did not know whether or not it was checked to determine what it was.

Orval Hathcoat testified that he was deputy sheriff of Kleberg County and that he went to El Paso and returned appellant to Kleberg County.

Hazel Kramme testified that she was District Clerk of Kleberg County; that she had checked the records and $15,000.00 was the maximum amount of bail that has been set in Kleberg County.

Sam Jones, the District Attorney of Kleberg County testified that he was aware that John Angles was in custody» as a juvenile from Kleberg County but that he had made no effort whatsoever to get Angles for the hearing.

We agree that the state is correct that “Evidence of flight or avoidance of arrest has been held to be of the strongest probative value”, as stated in Edwards v. State, 156 Tex.Cr.R. 146, 239 S.W.2d 618. However, in Edwards’ case the facts in that homicide were considerably stronger from the state’s standpoint than in this case. Edwards surrendered the day following the murder and went with a deputy sheriff to his brother’s house and there delivered the pistol which he had used. A slug taken from the decedent’s body was established to have come from this pistol. A paraffin test of Edwards’ hands showed that he had recently fired a gun. Flight must also be supported by cogent evidence. Standing virtually alone, as here, it is insufficient to constitute “proof evident.”

While the state takes the position that appellant’s gun collection included a 4S8 Magnum rifle and an A.R. 15 rifle, relying upon the testimony of Mrs. Krueger to support their position, we observe that the testimony of Mrs. Krueger quoted herein-above in its entirety, reflects that she did not know what weapons were in her son’s gun collection, nor did she know the make or caliber. Her testimony does not prima facie establish that appellant had either a 458 Magnum rifle or an A.R. 15 rifle. We observe that the officers had in their possession the Magnum rifle recovered by them from the boat Angles rented. This rifle could have been shown to appellant’s mother and would have permitted her to testify whether it or- a similar gun was in appellant’s collection. The A.R. 15 could also have been shown her, and she could have been asked whether any similar gun had been observed by her in appellant’s collection. Neither of these things was done.

Assuming that there was evidence from which there might be inferred that appellant had a Magnum rifle and an A.R. 15 rifle, his having them could have inculpa-tory significance only if there were additional proof tending to connect them with one or more of the killings. We find no proof of that kind.

From the facts it is evident that the State failed to meet the burden of showing a case where the proof is evident. There was no testimony showing that any of the various weapons recovered from the boat fired shots into the bodies of any of the three deceased men. The nearest that the state ever got was to show from Sheriff Mitchell’s testimony that a 458 Magnum could have caused it. The state adduced no testimony showing any plaster casts taken of footprints on the island where the bodies were found. No ballistic tests were shown, no slugs were introduced, no fingerprints were taken, no blood tests were made. The nearest point shown from the record that appellant reached in proximity to the bodies was six miles away.

We have through the years adhered to the well established rule for observance in cases of this nature: (1) The burden of proof is on the state to establish by evident proof that a capital offense has been committed; (2) that by the same character of proof the accused is the guilty perpetrator of said offense; and (3) that to deny bail, the court must find these propositions in the affirmative. Ex Parte Gragg, 149 Tex.Cr.R. 10, 191 S.W.2d 32. In Ex Parte Merrill, 150 Tex.Cr.R. 365, 201 S.W.2d 232, we held: “An essential element to constitute proof evident so as to justify refusal of bail to one charged with a capital offense is that the accused is guilty of the capital offense charged.” Judge Hawkins, speaking for this Court in Ex Parte Fleming, 97 Tex.Cr.R. 304, 261 S.W. 1037, said: “Bail is a matter of right, unless the state shows contrary, and no inference can be indulged against accused.” In Ex Parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877, bail was granted in a murder case. After indictment, this Court reversed the action of the trial court denying bail. In Ex Parte Donohoe, 112 Tex.Cr.R. 124, 14 S.W.2d 848, the judgment denying bail was reversed in a murder case and bail granted. This Court, speaking through Judge Christian said that the burden is on the state to show that accused is not entitled to bail, which is granted as a matter of right by virtue of the Constitution of Texas, Art. 1, Section 11. Ex Parte Alford, 97 Tex.Cr.R. 410, 261 S.W. 1041 and Ex Parte Powell, 107 Tex.Cr.R. 648, 298 S.W. 575, were cited in this case. Judge Hawkins stated in the Alford case, a murder case, that bare presence of a party at the scene of commission of a crime is insufficient to show guilty connection therewith as respects right to bail. . Judge Christian stated in the Powell case: “In absence of proof of motive or explanation for killing, court erred in denying bail to one charged with murder; fact that fair jury would likely inflict death penalty not being evident.” We held in the rather recent murder case of Ex Parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357, that the burden was upon the state to establish that the proof was evident, and, on the record presented, it was error to find that such burden had been sustained. In Ex Parte Collins, 168 Tex.Cr.R. 500, 330 S.W.2d 194, bail was granted in a murder case where there was no such “proof evident” as would justify denial of bail.

The writer has long felt that the facts in a hearing of this kind should be adequately discussed in our opinions so that the bench and bar of this state may be able to appraise the opinion properly. It is for that reason that I have gone into all of the facts adduced in this case.

The state’s able counsel discussed and cited by brief and oral argument several cases. We shall discuss them and distinguish them from the case at bar. The Edwards case has already been discussed. Ex Parte Cogdell, 157 Tex.Cr.R. 187, 247 S.W.2d 888, is next cited. No facts are shown in the opinion in that case, other than the mere mention that “[w]e have read appellant’s brief and the statement of facts in its entirety and are of the opinion that the trial court should be sustained in denying bail in this case. * * * While not commenting upon the testimony at this time, we think the judge was supported by the evidence.”

In Ex Parte Gibson, 149 Tex.Cr.App. 573, 197 S.W.2d 543, the facts presented by the state show that relator and his brother assaulted the deceased and 47 knife wounds were inflicted. The brothers were both on the body of the deceased and striking him until he ceased talking and expired.

In Ex Parte Roberts, 169 Tex.Cr.R. 311, 334 S.W.2d 171, an investigator talked with appellant, trying to find out where deceased might be found, and that “she told him she had shot deceased, that she would take him and show him where the body was”, they then went to the place directed by appellant and found the body.

In Ex Parte Stephens, Tex.Cr.App., 388 S.W.2d 199, (the writer being the author of that opinion and not stating the facts in detail, for which I assume responsibility) the mere statement is made that “[t]he evidence is sufficient to justify a finding by the trial judge that the appellant shot and killed the deceaseds * *

In Ex Parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257, this Court stated that the question before us is whether appellant is identified as the person who committed the offense or is identified as having a guilty connection with the commission of the offense by another person. The opinion relates that the facts relied upon to establish that identity are circumstantial and yet the facts are not set out. The statement is made that in cases of this kind we refrain from stating the facts at length or from expressing a conclusion as to the sufficiency of the evidence to show appellant’s guilt so that the trial judge may proceed without any pre-judgment by this court of the sufficiency of the evidence against appellant, and yet, the opinion then states that the entire statement of facts has been read, and many circumstances exist which point to the appellant as the perpetrator of the murder, as also to a motive therefor. The conclusion is then expressed: “Viewing the facts as a whole, we are unable to agree that the trial judge was in error in reaching the conclusion that this is not a bailable case.” My question posed is that: How are we to talk about MANY CIRCUMSTANCES pointing to appellant as the perpetrator of the murder and the motive, unless we do set out the facts, so that persons throughout the state will know the value of the opinion as precedent and be able to rely upon it. The appellant and the prosecutor know these facts for they have seen the record, but the other members of the bench and bar only have to assume what the facts are. It seems to me that we indulge in legal fiction in a case of this kind, which I confess being guilty of in Ex Parte Stephens, supra. All that the opinion in Washburn actually stands for is that this court agreed with the ruling of the trial court. If we are, in the writer’s judgment, to find the facts sufficient, we should state them. If we find them insufficient, we should state them.

The cases of Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235 and Martinez v. State, 140 S.W.2d 187, cited by the state, deal with flight. We have discussed this aspect above.

It is clear to us that none of the cases cited by the state, and we have discussed and distinguished them all, support the state’s position.

Adverting to our first paragraph in Ex Parte Coward, supra, wherein it is stated that “proof evident” means evidence clear and strong, leading a well-guarded judgment to the conclusion that an offense was committed; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered; when we apply the doctrine thus enunciated to the facts in evidence, as shown in the record before us, we are not satisfied that the “proof is evident.” Consequently, we still believe that the appellant is entitled to bail. We do not wish to be understood as saying that he is not guilty of murder of one or more of the three men and that this fact may not be made to appear most fully upon his trial. We are only passing upon the sufficiency of the evidence as exhibited in this record, and upon it alone is our opinion predicated.

Remaining convinced that we properly disposed of this case in our original opinion, the State’s Motion for Rehearing is overruled. In view of the constitutional term of this Court coming to an end this day, no further motion for rehearing will be entertained.

MORRISON, Judge

(concurring).

The record before us on rehearing contains the same evidence which we considered originally. Remaining convinced that our original opinion was a proper disposition of this appeal, I would overrule the State’s motion for rehearing without written opinion.

WOODLEY, Judge

(dissenting).

The State’s motion for rehearing was filed, submitted and argued June 23rd. June 26th being the last day of the present term it is difficult to write a full statement of my disagreement with the opinion overruling the State’s motion. Suffice it to say that the opinion is without precedent, as in the view of the writer is the conclusion that the trial court erred in denying bail.

It is regrettable that this Court should abandon the policy of refraining from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show appellant’s guilt; the purpose of such policy being that the trial should proceed without such prejudgment by this Court.

Since the facts have been set out at great length, I deem it necessary to state further facts and restate others which .1 consider relevant on the sole question presented by appellant’s brief: “The trial court abused its discretion in denying appellant bail,” and by the state’s answering proposition “The trial court did not abuse its discretion in denying appellant bail.”

Appellant left his home in San Clemente, California on April 9, 1965. His mother’s 1963 Thunderbird and some of appellant’s guns were found missing. The police were notified.

On Monday, April 12, appellant and his companion Angles made purchases at Buck’s Sporting Goods Store in Corpus Christi, including three five gallon fuel cans which they had filled with premixed gas and oil for a motor boat and two flounder gigs.

The witness Parrino helped place the cans of fuel in the automobile with California license plates and appellant paid for the purchases with a Richfield Credit Card and signed the slip.

Appellant and his companion inquired about shotgun shells and two magazines for sporting type high powered rifles. Mr. Parrino did not have the shot they requested or the clips and referred them to “The House of Guns”, another store. He testified:

“Q. This time of year, is there anything unusual about having calls for the type of ammunition and clips these two parties were asking for?
“A. Normally, as I stated, I have been around quite a bit, this is the first call I have ever had for such rifles. I don’t recall, I have only been in this part of the country since ’61, and I retired from the service, and that was my initial call for that particular type of clips.
“Q. Now are the gun shells you stock bird shoot, duck shot?
“A. That’s right, sir.
“Q. Were the shots they were asking for larger than bird shot and duck shot?
“A. If I recall right, I believe it was.”

On Tuesday, April 13, Deputy Sheriffs of Nueces County based upon information they had received, went to Graham’s Bait Stand on the west side of the Intracoastal Canal and there confirmed the information they had that an aluminum boat with a 5 or 10 horse power motor was missing.

Robert E. Morris, employee at Graham’s Bait Stand, identified appellant as the man who came to the bait stand on the afternoon of April 12 with a dark complected boy who rented a 14 foot Starcraft aluminum type boat, paying $10 for 12 hours and signing the name John P. Angles on his book. (Ex. 21) Morris testified:

“Q. Which one of the two boys actually got in the boat ?
“A. Well, sir, this boy here was in the boat, when I went out to put the motor on, I put the motor on and went back for a couple of lifebelts, when I went back this boy was in the boat and said he didn’t know how to run the boat, I showed him how to turn the motor to get started, shoved the boat off, and he said he was going to take it off out there and get used to running it.
“Q. At the time where was the other boy?
“A. He went to the car. I looked up when I got the other boy shoved away with the boat, although may I state, when I shoved him away, I saw the fishing rods, and I asked him if he needed any bait, and he said no, he was going to run the boat around and see how to run it, he didn’t have no fishing rod in the boat, and I thought to myself, I better get the car number, which I seldom do, and I looked up and the car was leaving.
“Q. The boy with the beard was in the car and leaving?
“A. Yes, sir.”

The officers then proceeded to a point along the edge of the channel where they confirmed the information they had received. They found the boat in which were the things they were looking for and which they had received information on:

The guns, camping equipment, oil cans and other articles described in the majority opinion, including the so called Elephant Gun or Magnum which the testimony of the mother of the appellant, though dimmed no doubt by a mother’s love, identified as similar at least to guns belonging to appellant.

Having confirmed the information they had received at the boat stand and at the place where the rented boat and its contents was found, the officers requested that a helicopter be sent, the purpose being “on information that we had received at first, to look for some men”:

“Q. Was there somewhere else, based on your information, you were supposed to go?
“A. Yes, sir, approximately six miles down the spoil banks of the Intra-coastal Canal.
“Q. Was that accessible to a land vehicle ?
“A. No, sir.
“Q. Was that the reason you called for the helicopter ?
“A. Yes, sir.
******
“Q. Now which direction, if you know, did you proceed in this helicopter ?
“A. In a southerly direction
“Q. Was this the direction, going in that direction, on your direction ? I mean, did you direct the pilot which way to go ?
“A. Yes, sir, I told him what we were looking for.
“Q. This was based on prior information?
“A. Yes, sir.
“Q. And I believe you stated you went out a distance approximately six miles ?
“A. Yes, sir.
“Q. Which general direction was that?
“A. Southerly direction.
“Q. And when you got out that distance, what did you first see or observe, if anything?
“A. We spotted one body in the water.
“Q. Spotted a human body?
“A. A human body in the water, a pier, and a boat tied to the pier. After we turned — •
“Q. I want you to tell me what you could see up there in the helicopter. Go ahead. I think you were going to do that but I want to be sure.
“A. After we turned into the wind, northeast wind, at that time you could see underneath the pier, we stopped at the pier, then we could see under the pier, and I saw what appeared to be two more bodies under the pier.
* * * * * *
“Q. All right. Now upon seeing those bodies in the water, as you have described, did that confirm information that you already had?
“A. It did.
“Q. That was what you were looking for?
“A. It was what I was looking for.”

The gruesome find on the spoil bank leaves no doubt that some person or persons murdered the three unarmed fishermen, one with two shots from a gun such as the recently fired 458 Magnum found in the boat rented by appellant and Angles.

Though the source of the information which led the officers to the boat stand; the rented boat and to the spoil bank where the murdered men were found is not directly shown in the record, it is clear that appellant’s companion Angles, who rented the boat and then left the boat stand in the automobile, was in custody and only a person who was at the boat stand; at the place where the rented boat was abandoned and at the spoil bank could have furnished such information.

As for appellant, he was next heard from several hundred miles from the scene of the murder when his mother received a telephone call from “Bud Lauer” at Casas Grande, Mexico, and her son, the appellant, talked to her. She knew he was wanted in connection with the three killings. “It was in all the papers.” She told no one of the call except her husband. Later she proceeded to Juarez, Mexico where she saw appellant in jail.

After having been released to United States authorities who had a Federal warrant for his arrest as a fugitive from justice, appellant was arrested at El Paso on April 23, 1965 and returned to Kleberg County. His mother claimed ownership of the 1963 Thunderbird and signed receipt therefor when she received it from the District Attorney’s office in Kingsville on April 30.

Why did appellant abandon the automobile, his guns and other property and flee to the Republic of Mexico ?

Appellant and John P. Angles, who gave his address as Hollywood, California, were jointly charged by complaints sworn to and filed April 14, 1965 with the murder of Noel Little, John David Fox and Van Dave Carson.

Appellant’s counsel elicited from the witness Morris the following:

“Q. All right. I want to ask you this question, did you ask for any identification at all from the young man to whom you rented the boat?
“A. Just to write his name down on the book.
“Q. And he wrote his name down as Angles.
“A. Yes, sir.
“Q. Have you seen him since?
“A. Yes, sir.
“Q. Where?
“A. They brought him out to the bait stand when they took him down to look for the guns.”

The trial court was not without evidence from which he could conclude that appellant and Angles had no intention of returning the boat they had rented for 12 hours; that at the time appellant drove the boat off, supposedly for a trial run, and Angles drove away in appellant’s Thunderbird, they planned to and did meet later and take the gasoline sufficient for a long trip; the guns and the camping equipment out of the car and load them into the boat; Angles was taken into custody and led or directed officers to the place where they rented the boat; to the boat where they had abandoned it, and to the spoil bank where the three unarmed men had been murdered.

It should be remembered that the state was not bound to prove that appellant shot and killed either of the three men. Proof that he agreed to the murder and was present or that he for other reasons was a principal in the murder was sufficient to warrant the extreme penalty.

I would overrule the contention that the trial judge abused his discretion in denying bail and would grant the state’s motion for rehearing.

If bail is granted it should be fixed in an amount which would more likely assure the presence of the appellant when his case is called for trial.

I respectfully dissent from the overruling of the state’s motion for rehearing.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    J. W. JONES and Wife, Dorothea Jones, Appellants, v. EL PASO NATURAL GAS PRODUCTS COMPANY, a Corporation, and Shell Oil Company, a Corporation, Appellees.
    No. 11304.
    Court of Civil Appeals of Texas. Austin.
    June 2, 1965.
    Rehearing Denied June 23, 1965.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, El Paso, for appellants.

      Richard L. Hughston, James A. Lore, Dan H. Farr, Midland, John A. Woodward, Odessa, Hardeman, Smith & Foy, Joe H. Foy, San Angelo, foy appellees.
   PHILLIPS, Justice.

On August 12, 1958, J. W. Jones and wife, hereinafter called appellants, entered into a letter agreement with El Paso Natural Gas Company, which involved the sale of a wholesale and retail marketing business, including dealer contracts, intangible assets and good will which included a noncompetitive agreement on the part of appellants for a ten-year term. The sale included personal property, equipmént and inventory at the hulk plant, warehouse and filling stations. The letter agreement also gave El Paso the right to lease seven filling stations owned by appellants and a bulk plant and warehouse. The lease included the subleasing of one filling station which appellants did not own. The lease was to be for a term of ten years at a monthly rental of $3,000.00. '

In October of 1958 the appellants and El Paso executed the leases provided for in the above-mentioned letter of agreement, which leases expressly provided that El Paso had the authority to sublet the properties without any restriction whatever.

In 1964, El Paso decided to go out of the gasoline refining and marketing business and in March of 1964 it entered into a contract with Shell Oil Company under which Shell acquired its entire gasoline marketing operation in five States.

Shell now has possession of the above-mentioned filling stations that El Paso leased from appellants under a sublease from El Paso. This sublease from El Paso to Shell also includes the above-mentioned bulk plant and warehouse.

Shell is now selling its own gasoline under the El Paso brand at the subleased stations and intends to substitute its signs and pumps for those of El Paso as soon as the rights of the parties involved in this lawsuit have been determined.

Appellants attempted by their suit to prevent the operation of the leased filling stations as Shell stations. They sought a declaratory injunction seeking the court to declare that: (1) the transaction between El Paso and Shell was an assignment rather than a sublease; (2) that the letter agreement of August 12, 1958, and the reading, tenor and effect thereof, permit the use of the leased properties only for the sale, merchandising and advertising of “such products as are marketed and sold by El Paso Natural Gas Products Company;” (3) that appellants have a lien on El Paso’s personal property on the leases and El Paso cannot sell or transfer such personal property without appellants’ consent; that such lien has attached as a result of El Paso’s failure to perform normal maintenance such as painting; (4) ancillary thereto appellant prays for an injunction which would prevent Shell from taking possession of the filling stations pursuant to its acquisition of El Paso’s marketing operations; prevent any change of colors, decals, symbols or any other advertising paraphernalia from El Paso’s products to Shell’s products; prevent the sale of any products other than El Paso Brand products at these stations; prevent the sale or removal of equipment located on the leased premises; and prevent the substitution or change of equipment on the leased premises.

Numerous depositions were taken before trial and appellants submitted numerous interrogatories to Shell and El Paso which were fully answered. Certain affidavits of the interested parties were included in the various motions submitted. It is not necessary to further describe these depositions, requests for admissions or affidavits for the disposition of this case.

The trial court held that there were no material issues of fact to be determined and on proper motion granted summary judgment for the defendants El Paso and Shell Oil Company on the questions of law involved.

We affirm the judgment of the trial court.

Appellant J. W. Jones has been in the gasoline marketing business since 1921. Originally an employee of major oil companies, he became an independent jobber, wholesaler and retailer. By 1958 he had built up a business of respectable proportions as an independent jobber, wholesaler and retailer in and around San Angelo, Texas.

In 1958, El Paso sought to purchase Jones’ business as an outlet for their refinery products in San Angelo and negotiations took place between these parties over a period of several months. Several drafts of documents were prepared by attorneys for each side before a final draft was agreed upon in August. This draft was signed on August 12, 1958 and is the letter agreement of August 12, 1958 referred to above.

There is no need to quote this lengthy document verbatim. The terms thereof are clear.

The second and third paragraphs thereof cover the sale of equipment, tools, merchandise, supplies, products, good will and the consideration therefor is stated. This contract also contains appellants’ agreement not to engage in the gasoline distribution or service station business without El Paso’s written consent in Tom Green County, Texas for a period of ten years.

The fourth paragraph contained the agreement to lease the eight parcels of land described in contract Exhibit “C.” The leases were to be “substantially in the form” of Exhibit “A,” attached and made a part thereof. Possession was to be delivered free and clear of all leases, dealer agreements, and encumbrances, except:

(a)A real estate mortgage on property at 3300 North Chadbourne, which plaintiffs agreed to pay off according to its terms.

(b) An operating agreement with Howard Fox on El Paso’s standard form covering the property at 1000 South Chad-bourne Street, at a stipulated rental, from which the ten-day cancellation clause could be stricken.

(c) A sublease from El Paso to Howard P. Bunch covering a butane business on the property at 3602 South Chadbourne.

(d) An operating agreement with Howard P. Bunch on El Paso’s standard form covering the property at 3602 South Chad-bourne, at a stipulated rental, from which the ten-day cancellation clause could be stricken.

The fifth paragraph contained appellants’ promise to assign to El Paso their leases on certain other filling station properties. Subparagraph d. under the fifth paragraph described a station in Sterling City, Texas; subparagraph e. provided a general commitment to assign the leases on any other stations held by appellants, if El Paso should request it. The paragraph immediately following is as follows:

“It is understood that there are persons conducting the gasoline service station business on the properties described in the two immediately preceding unlettered paragraphs but that Grantors shall terminate all contracts and agreements under which they are operating and shall deliver the properties to El Paso free of such contracts and agreements, except as is herein-above provided. El Paso may negotiate with any of the present operators for them to operate the stations under El Paso’s standard form Operating. Agreement effective after the closing date provided for herein.”

The remaining paragraphs dealt with the details of title assurance, closing, prorations and other adjective provisions.

Exhibit “A,” attached to that contract, is the form of lease ultimately executed. It provided for a ten-year basic term, with one five-year option.

Paragraph 6 of the lease provided as follows:

“6. Lessee shall have the right, at its own expense, to erect and construct on the leased premises any driveways, posts, signs, billboards or equipment of any description whatsoever and/or alter, add to, reconstruct or paint any of the buildings or property of the Lessor and/or rearrange any of the driveways; which Lessee may deem necessary for use of the leased premises as a motor vehicle service station. Lessee shall not construct any buildings or do any major reconstruction without the express written consent of the Lessor first had and obtained.”

Paragraph 7 of the lease provided as follows:

“7. The leased premises are to be used as a motor vehicle service station for the sale of petroleum products and other merchandise customarily handled by such service stations; and for the servicing of motor vehicles; and for the conduct of any other lawful business; and the Lessee is hereby given the right to sub-lease or underlet said premises.”

Paragraph 16 of the lease provided:

“16. Lessee is hereby given the right to sub-lease or underlet the premises. This lease may be assigned by either party upon the written consent of the other party. This lease and any renewal or extension thereof shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors or assigns.”

By the last sentence of paragraph 2, it was provided that Lessor should have a first and prior lien on all property of Lessee on the premises in the event of termination for nonpayment of rentals.

Paragraph 5 obligated Lessee to paint the structures and perform “normal maintenance” thereon.

Paragraph 9 made additional provisions for liens as follows:

“9. In the event of Lessee’s default hereunder in addition to all statutory and common law liens, Lessor is hereby given a first and prior lien on all properties of Lessee located on the premises. If Lessee is not in default in any of its obligations hereunder, then it shall have the right, at any time during the continuance of this lease or within thirty (30) days after termination, or any renewal or extension, either to remove from or leave upon the leased premises all or any part or parts of Lessee’s property thereon. However, in the case of removal, Lessee agrees reasonably to restore the premises to its original condition.”

Appellant J. W. Jones admitted that no one orally promised him that El Paso would never sell its business to another oil company. He was told in the negotiations that El Paso intended to develop the business aggressively. The prospect of a sale to another company was not contemplated or mentioned in the negotiations, so far as he could remember.

Appellants do not contend that El Paso committed any fraud or made any false promise to them in the negotiations.

Appellants’ points of error before this Court are essentially the same as those points set out above in their original pleadings. They contend that El Paso’s lease to Shell was an assignment and not a sublease. In support of this argument, they point out that as a part of the thirty-seven million dollar sale through which El Paso sold its entire marketing and refining facilities to Shell that it sold, transferred and conveyed all of its “right, title and interest in and to” the leases on appellants’ property. That on the same day this contract of sale was entered into between El Paso and Shell, these parties entered into an agreement wherein El Paso assigned all leases that it had to Shell. That in spite of a subsequent instrument wherein El Paso subleased the appellants’ specific properties to Shell, since there had been no recision of the above-mentioned assignment, El Paso had nothing to sublease and was bound by the above-mentioned assignment, which was invalid.

We overrule this contention.

In the instrument in which El Paso assigned its leases to Shell there was the following condition:

“With respect to each of the leases as to which El Paso does not have the unconditional right to assign the same, this assignment shall convey to Shell only El Paso’s beneficial interest thereunder, but subject to El Paso’s covenant to execute any further instruments, and to assist in procuring any consents or other instruments necessary to effect Shell’s acquisition of such lease and/or to insure its possession and enjoyment of the leased premises.”

This provision was obviously inserted in contemplation of certain leases that could not be assigned and provided that other means were to he used in order to grant Shell the occupancy and the use of the property covered thereby.

Thereafter, pursuant to the' aforesaid obligation, El Paso executed a sublease of each of appellants’ stations to Shell. Shell has executed and accepted each of the subleases and is holding thereunder. Each of the subleases provide that El Paso may terminate it on ten days’ notice in the event that Shell fails to pay any rental when due. Each sublease further provides for liens on all equipment Shell may place on the premises. Shell is obligated to paint the improvements and perform normal maintenance, It is also provided that if Shell defaults in any of its covenants, El Paso may terminate the sublease on twenty-five days’ written notice. ■

Appellants have made no effort to forfeit El Paso’s leases as a result of the purported assignment. They have continued to collect the rent.

We hold that the provision of a right for El Paso to terminate the tenancy on any breach of covenant by Shell is sufficient to constitute the instruments under which Shell holds subleases and not assignments. Davis v. Vidal, 105 Tex. 444, 151 S.W. 290; Sinclair Refining Co. v. Womack, Tex.Civ.App., 66 S.W.2d 402.

Appellants have cited and rely on Marathon Oil Company v. Lambert, Tex.Civ.App., 103 S.W.2d 176, writ dismissed, for the proposition that El Paso has conveyed its “beneficial interest” to Shell under the proviso quoted above, consequently leaving it no estate in its lease to Shell. Marathon is not in point here as the court held that party (Cannon) who was alleged to have sublet the property in question had not retained a reversionary interest in the leased property and in fact had assigned the lease in question. These are not the facts here. El Paso under the rule stated in the Davis and Sinclair Refining cases, above, has retained a sufficient estate to constitute his contract with Shell a sublease and not an assignment.

Since El Paso had no right to assign the leases to Shell, the general assignment of leases between these parties in March 1964 could not have been effective as to the appellants’ stations, without the consent of appellants having been obtained. That consent has not been granted. Upon determining that the leases could not be assigned, El Paso and Shell agreed to substitute subleases therefor which, under the contract between them, they undoubtedly had the right to do.

Appellants contend that their permission for El Paso to sublease the stations was limited to the use of El Paso’s Standard Form operating agreements by the specific terms of the August 12, 1958 letter agreement between appellants and El Paso. That in any event, the letter agreement of August 12, 1958 creates an ambiguity on this point thereby raising a fact issue to be determined.

The lease agreement between appellants and El Paso gives El Paso the unlimited right to sublet the properties and at no place therein does it limit El Paso to the use of El Paso’s Standard Form operating agreement in the event of a sublease.

Plaintiff arrived at this construction by maintaining that the lease contract must be read in conjunction with the letter agreement of August 12. That the letter agreement requires that said Standard Form must be used. This argument must fail.

There is no ambiguity whatsoever in the individual leases in question. These leases were signed in September 1958 for the filling stations in question as agreed in the August 12, 1958 letter agreement. The habendum clause of each lease closes with the following sentence: “This lease is subject to the following terms and conditions which are this day mutually agreed to.” Nor does any other language of the lease refer to, or by implication invite, any existing outside modifying agreement. Two paragraphs in the leases, 7 and 16, contain the following terms and conditions which were, on September 15, 1958, mutually agreed to:

“7. The leased premises are to be used as a motor vehicle service station for the sale of petroleum products and other merchandise customarily handled by such service stations; and for the servicing of motor vehicles; and for the conduct of any other lawful business; and the Lessee is hereby given the right to sub-lease or underlet said premises.
16. Lessee is hereby given the right to sublease or underlet the permises. This lease may be assigned by either party upon the written consent of the other party. This lease and any renewal and extension thereof shall be binding upon and shall inure to the benefit of the parties hereto and to their respective heirs, successors or assigns.”

In Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, the Supreme Court stated the rule to be:

“If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217.”

Also see Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154.

Appellants further contend that the trial court erred in granting a summary judgment herein as the evidence reveals that El Paso is in default in its obligation to paint and maintain the leased premises of appellants, consequently under paragraph 9 of the lease between the parties hereto, El Paso is prohibited from removing these properties from the premises; that appellants have a lien on these properties to secure the performance of this obligation; that the trial court erred in not granting the injunction prayed for.

We overrule these points.

As we stated above, the trial court reserved the right of the appellants to bring a suit for damages that might have been incurred through El Paso’s failure to paint the equipment, in question. We hold that. appellants’ remedy at law is adequate to protect their right to any damages that they may have and that the trial court properly refused to enjoin the sale of El Paso’s personal property.

We have no quarrel with appellants’ contention to the effect that the court may enjoin the removal or mortgaged property. There is no justification for such a drastic remedy here. The solvency of. both El Paso and Shell can be judicially noticed. Humble Oil and Refining Co. v. Luckel, Tex.Civ.App., 154 S.W.2d 155, writ ref., w. o. m.

With respect to appellants’ argument that there is no privity of contract between them and Shell, we point out that in the contract between El Paso and Shell, under Article Three “Mode of Payment,” Paragraph C, Shell assumed all of El Paso’s obligations under the leases. 'A similar assumption is incorporated in the general assignment of leases, and specific provisions are incorporated in the subleases, tracking the maintenance and lien covenants of the original leases. These covenants raise an exception to the general rule that a sub-lessee is not liable to the lessor on the covenants contained m the original lease.. * * * where the sublessee has agreed with the lessee to assume the obligations of the parent lease, the lessor has a right of action as a ‘creditor beneficiary’ against the sublessee for a breach thereof even though he is not a party to the contract of assumption.” 51 C.J.S. Landlord and Tenant § 48, p. 581. '

Recognizing this principle, the Supreme Court stated in Amco Trust, Inc. v. Naylor, 159 Tex. 146, 317 S.W.2d 47, 50, 73 A.L.R.2d 1109 (1958) that, “There is no privity of contract between the lessor and a sublessee, and the latter is not liable to the lessor on the covenants of the lease, unless he assumes or otherwise binds, himself to perform the same.”

Appellants’ ■ ultimate remedy here is money damages or the recovery of a debt and the defendants are solvent. Consequently, an injunction with respect to disposal or use of the property will be denied. Their remedy at law is adequate. Lewis v. Clark, Tex.Civ.App., 129 S.W.2d 421, error dism. j. c.; Bagley v. Higginbotham, Tex.Civ.App., 353 S.W.2d 868, er. ref., n. r. e.; Humble v. Luckel, above.

Where a case can be decided upon the construction of an unambiguous written instrument, the construction of the instrument is a matter of law for the court, and a summary judgment is proper. Dickey v. Bird, Tex.Civ.App., 366 S.W.2d 859, er. ref., n. r. e.; Ross v. Burleson, Tex.Civ.App., 274 S.W.2d 105.

We affirm the judgment of the trial court.

Affirmed.


author: WILLIAMS, Justice.

text:
    Robert A. NICHOLS, Appellant, v. OMEGA AMUSEMENT COMPANY, Appellee.
    No. 16487.
    Court of Civil Appeals of Texas. Dallas.
    April 30, 1965.
    Rehearing Denied June 4, 1965.

      G. H. Kelsoe, Jr., and Robert M. Kennedy, Dallas, for appellant.
    Cober & Meagher, Grand Prairie, for ap-pellee.
   WILLIAMS, Justice.

Appeal from an order sustaining motion for summary judgment. Rule 166-A, T.R. C.P. Omega Amusement Company, a corporation, brought this action in the district court against Robert A. Nichols to recover $4,000, being a portion of earnest money deposited by plaintiff with defendant as a part of a contract of sale, containing an option agreement, between the parties. Plaintiff alleged that it had entered into a written contract with defendant to purchase certain real property in Irving, Texas to be used for the construction of a drive-in movie theatre and that the sum of $5,000 had been deposited with the seller as earnest money. The contract between the parties contained the following provision:

“Purchaser may elect to void this contract if zoning permit for drive-in theatre is not obtained within six months from date hereof. If such election is exercised by Purchaser, Seller is to retain $1,000.00 of the above mentioned earnest money as part of the consideration for this contract.”

Plaintiff alleged that it did not obtain a permit to construct the drive-in theatre within the six months’ period and therefore it elected to void the contract of sale, thereby forfeiting the $1,000 above referred to. Defendant refused to refund the $4,000 and judgment was sought against defendant for that amount.

Plaintiff filed its motion for summary judgment, together with supporting affidavits, alleging that no issue of fact existed between the parties. Defendant Nichols filed his answer in which he specifically pled that plaintiff had not made a good faith or bona fide effort to obtain the desired zoning permit. By his cross-action, defendant Nichols sued Omego Amusement Company, Jerry A. Meagher and Vernon L. Watson, in which cross-action cross-plaintiff alleged that, by virtue of the failure on the part of plaintiff to carry out the terms of the sales contract, he had sustained damages in the sum of $65,000. After allowing credit for the $5,000 deposit made on the contract, cross-plaintiff sought a judgment for $60,000 against the cross-defendants, jointly and severally. Nichols also filed an answer to the motion for summary judgment, attaching affidavits.

The judgment of the trial court recites that the court heard the motion for summary judgment and sustained same, thereby decreeing judgment for plaintiff against defendant for $4,000. The record reveals no order of severance as to the cross-action.

The order appealed from is obviously interlocutory and not a final decree which can be made the basis of appeal to this court. A summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76; Winston v. Barrett, Tex.Civ.App., 329 S.W.2d 114; Compton v. Sparkman-Brand, Inc., Tex.Civ.App., 324 S.W.2d 906; Permian Mud Service, Inc. v. Sipes, Tex.Civ.App., 339 S.W.2d 81; Covert v. Ready, Tex.Civ.App., 377 S.W.2d 680; Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199; Lightle v. Bock Motor Co., Tex.Civ.App., 351 S.W.2d 379.

The appeal is dismissed.


author: RENFRO, Justice.

text:
    Paul HASS et al., Appellants, v. AETNA INSURANCE COMPANY, Appellee.
    No. 16638.
    Court of Civil Appeals of Texas. Fort Worth.
    May 14, 1965.
    Rehearing Denied June 18, 1965.
    Matthews & Weaver, and Victor C. Mc-Crea, Jr,, Dallas, for appellants.
    Bailey & Williams, and James A. Williams, Dallas, for appellee.
   RENFRO, Justice.

Plaintiffs, Paul Hass and Paul Montgomery, d/b/a Hass-Montgomery, Painting Contractors, brought suit against Gerald M. Miller, individually, James E. Stinson, individually, also against said two individuals doing business as Stinson Paint Contracting Company, a joint venture, and Aetna Insurance Company.

They alleged that on or about February 2, 1961, the Dallas Independent School District entered into a contract with C. & L. Stone Builders, Inc., prime contractor, for certain construction, addition and alteration to a high school; subsequent thereto Stin-son and/or Stinson and Gerald M. Miller, d/b/a Stinson Paint Contracting Company, a joint venture, entered into a subcontract with Stone for the furnishing of labor and materials required and necessary to comply with the painting requirements; on December 26, 1961, plaintiffs at the request of Miller on his own behalf and on behalf of Stinson and on behalf of Stinson and Miller, d/b/a Stinson Paint Contracting Company, a joint venture, agreed to furnish all labor and material not previously completed by defendants; the sum of $5,423.08 remained unpaid; that Aetna was a surety on a payment bond executed by Miller, wherein it obligated itself to pay for the materials and labor furnished by plaintiffs.

Defendant Aetna specially denied the allegations in plaintiffs’ petition in so far as they applied to it.

Miller filed an answer but later agreed that judgment be entered against him.

Stinson did not file an answer. Judgment was entered for plaintiffs against both Miller and Stinson.

At the conclusion of the trial both plaintiffs and Aetna moved for instructed verdict. Aetna’s motion was granted and judgment entered that plaintiffs take nothing against Aetna.

Plaintiffs appealed.

The evidence was undisputed.

It was stipulated that plaintiffs did, at the request of Miller, furnish the labor and material for the work in the amount which they alleged in their petition, namely, $5,423.08.

The subcontract was by and between J„ E. Stinson, Paint Contractor, and C. & L. Stone Builders, Inc., and was executed by J. E. Stinson, Paint Contractor.

The Labor and Material Payment Bond, upon which suit was brought, showed James E. Stinson, d/b/a J. E. Stinson Paint Contracting Company, to be the principal and it was signed J. E. Stinson Paint Contracting Co., by James E. Stinson, owner.

In the bond a claimant was defined as one having a direct contract with the principal or with a subcontractor of the principal for labor, material, or both, used in the performance of the contract.

James E. Stinson, d/b/a J. E. Stinson Paint Contracting Company, and Miller jointly applied for the payment bond, the application setting out that James E. Stin-son, d/b/a Stinson Paint Contracting Company had been awarded the contract to paint the high school.

Plaintiffs contend they were entitled to judgment against Aetna because it did not specifically allege in its sworn answer that Miller and Stinson were not doing business under the assumed name of J. E. Stinson Paint Contracting Company as alleged by plaintiffs. Plaintiffs’ pleadings alleged that Miller and Stinson were engaged in a joint venture.

It was not necessary for Aetna to specifically deny joint venture in order to put such matter in issue. Plaintiffs’ petition was no evidence of joint venture. McNeil v. Barrow, 237 S.W.2d 730 (Amarillo Civ.App., 1950, no writ hist.).

The application for bond signed by Miller and Stinson was no more than what it purported to be, towit, an application to Aetna to execute a payment bond in connection with the contract for painting South Oak Cliff High School. As previously stated, that contract was between C. & L. Stone Builders, Inc., and J. E. Stinson, Paint Contractor.

We hold, therefore, there was no evidence of probative force to support the claim that Stinson and Miller were engaged in a joint venture.

It is undisputed the labor and material were furnished by plaintiffs to Miller.

It is undisputed none of the labor and materials were furnished to Stinson, or to J. E. Stinson, Paint Contractor.

There is no evidence that Miller was a subcontractor of Stinson.

We, therefore, conclude there was no evidence of probative force to prove that the labor and materials in question were furnished within the terms of the bond upon which suit was based.

Therefore, the judgment of the trial court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    STATE of Texas, Appellant, v. T. A. NEWTON et ux., Appellees.
    No. 4318.
    Court of Civil Appeals of Texas. Waco.
    May 27, 1965.
    Rehearing Denied June 17, 1965.
    Waggoner Carr, Atty. Gen., Fred Spence, Asst. Atty. Gen., Austin, for appellant.
    B. R. Reeves, Palestine, for appellees.
   McDONALD, Chief Justice.

This is a condemnation case instituted by the State of Texas to condemn for highway purposes 2.705 acres, together with improvements, owned by defendants. Trial was to a jury which found the reasonable market value of defendants at the time of taking on June 20, 1964 was $14,500. The Trial Court rendered judgment on the verdict for defendants for $1500 ($14,500 less $13,000 deposited by the State after award of the commissioners).

Plaintiff appeals, contending:

1) The Trial Court erred in permitting the witness Morgan to testify that he was a Special Commissioner in this case, and that in his opinion the market value of the land taken (with improvements) was $13,-000.

2) The Trial Court erred in permitting the witnesses Morgan, Hightower, Way and Thomason to testify as to the value of the property taken because they were not shown to be qualified to express an opinion on the market value of the property on the date of the taking.

3) There is no evidence, or insufficient evidence, to support the jury’s verdict of $14,500.

4) The verdict and judgment are excessive by $7,000, and a remittitur should be required.

We revert to plaintiff’s 1st contention that the Trial Court erred in permitting the witness Morgan to testify that he was a Special Commissioner in the case, and that in his opinion the property taken was worth $13,000. Plaintiff contends that this advised the jury indirectly, that the Special Commissioner had made an award of $13,000. One who has served as a Special Commissioner is not disqualified to testify as a witness to land values in the County Court, and knowledge of the jury that a witness had been a Special Commissioner does not alter the situation. Crespi v. City of Waco, CCA 277 S.W. 400; City of Denton v. Chastain, CCA (n.w.h.), 156 S.W.2d 554; City of Houston v. Schoor, CCA W/E Dis., 231 S.W.2d 740; City of Corpus Christi v. Magee, CCA (n.w.h.), 285 S.W.2d 236; Texas Elec. Serv. Co. v. Campbell, CCA (n.w.h.), 328 S.W.2d 208.

The record reflects that the witness made no mention of the award made by the Commissioners.

Plaintiff’s 2nd contention complains of the admission of the testimony of the witnesses Morgan, Hightower, Way and Thomason. These witnesses testified that they were not in the real estate business and that they did not consider themselves “an expert” to testify as to the market value of land in the area. Some of the witnesses were in the business of buying lots, building houses, selling them, repairing houses, loaning money on houses, working with loan companies in securing loans for houses in the vicinity, and each of the witnesses testified that he knew the property under consideration and had known it .for a long time and knew its reasonable cash market value at the time of the taking.

When a witness gives evidence that he is acquainted with the market value, he is qualified to testify concerning such value. The fact he is not a real estate broker, or does not consider himself “an expert”, goes only to the weight that may be given his testimony by the jury. City of Teague v. Stiles, CCA (n.r.e.), 263 S.W.2d 623; State v. Willey, CCA (n.w.h.), 351 S.W.2d 907; Texas Sanitation Co. v. Marek, CCA (n.w.h.), 381 S.W.2d 710.

Plaintiff’s 3rd and 4th contentions complain there is no evidence, or insufficient evidence, to sustain the jurors’ verdict of $14,500; and that the award is excessive by $7,000.

The land taken was 2.705 acres in the City of Centerville. The tract' fronted on the State Highway and had on it a 7 room house with garage, storeroom, chicken houses, barns and fencing. Defendant testified his property was worth $16,000; the witness Morgan $13,000; the witness Hightower $13,000; the witness Way $17,000; the witness Thomason $14,-o 000; and the State’s witness Waters, a real estate broker and appraiser, testified the property was worth $7,500. From the evidence we think the jury authorized to return the verdict that they did, and that such is not against the great weight and preponderance of the evidence. See State of Texas v. Scarborough, CCA (n.w.h.), 383 S.W.2d 839; State of Texas v. Carswell, CCA (n.w.h.), 384 S.W.2d 407; State v. Jacobs, CCA, 390 S.W.2d 482 (6 May 1965 as yet unreported).

All of plaintiff’s points and contentions are overruled.

Affirmed.


author: WERLEIN, Justice.

text:
    Robert C. NEFF, Appellant, v. Marcy Neff JOHNSON, Appellee.
    No. 14584.
    Court of Civil Appeals of Texas. Houston.
    May 27, 1965.
    Rehearing Denied June 17, 1965.

      Alex Guevara, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., R. H. Elder, Asst. Dist. Atty., Houston, for appellee.
   WERLEIN, Justice.

This suit was initiated by appellee, Marcy Neff Johnson, in the Common Pleas Court of Greene County, Ohio, Division of Domestic Relations, against appellant, Robert C. Neff, under the Uniform Reciprocal Enforcement of Support Act of the State of Ohio, R.C. § 3115.01 et seq., which is substantially similar to the Uniform Reciprocal Enforcement of Support Act of the State of Texas, the responding state, praying for an order of the court to be directed to appellant, a resident of Harris County, State of Texas, ordering him to “pay support” to appellee for the benefit of appellee’s minor children. Said court made its finding entry and certificate on March 31, 1962, in which it found, among other things, that appellant and appellee had two minor children, Billy Franklin and Lillie Mae, that appellant and appellee were last divorced on the 6th day of May, 1950 in the Common Pleas Court of Greene County, at which time appellant was ordered to pay the appellee the sum of $30.00 per week for the maintenance and support of said minor children.

The court certified that appellant was not a resident of, nor domiciled in, Ohio; that a verified petition had been filed in such court against appellant to compel the support of said children and that the appellant was residing in Houston, Harris County, Texas, and by reason thereof service could not be had upon him in the State of Ohio. The court further certified that appellant should be compelled to answer the petition of the appellee and that he owes a duty of support by reason of the marriage of the parties and the birth of the children to the marriage, and that the sum of $30.00 per week was necessary for the support of the children, namely, Billy Franklin and Lillie Mae Neff; The court further found that by reason of appellant’s place of residence the District Court of Harris County, Houston, Texas, had jurisdiction of the appellant, and the court, therefore, caused a certified copy of appellee’s petition, and an authenticated copy of the Uniform Dependent’s Act, and a certified copy of the court’s certificate to be transmitted to the Clerk of the District Court of Harris County, Houston, Texas.

From the judgment of the Court of Domestic Relations No. 3 of Harris County, Texas, finding in favor of appellee’s petition, and ordering appellant to pay the sum of $50.00 per month for the support and maintenance of said children beginning December 1, 1964, to be made to the Harris County Probation Office, designated Registry of the Court, to be transmitted to the said appellee, % the Clerk of the Court of Common Pleas, Greene County, Dayton, Ohio, in accordance with the Reciprocal Eniorcement of Support Act of the State of Texas, Article 2328b-l, 2 and 3, Vernon’s Ann.Tex.Civ.St, appellant has perfected his appeal.

The gravamen of appellant’s first three points is that there was no evidence and insufficient evidence to support the trial court’s judgment and that the amount of support awarded is excessive. Appellee in her sworn petition, which was filed in the Court of Common Pleas in Ohio on March 31, 1962 and filed in the District Court of Harris County, Texas, on August 12, 1963, alleged, . and said Court of Common Pleas found and certified, that appellee and appellant were married the first time June 16, 1929 and divorced December 4, 1941; that they remarried April 2, 1946, and were last divorced May 6, 1950; that Billy Franklin was born February 19, 1946, and Lillie Mae was born May 19, 1948; and that the five oldest children were emancipated, and that Billy Franklin was 16 years of age and Lillie Mae was 13 years of age.

This appeal is before us on an agreed statement of facts filed January 27, 1965 in this cause. Appellant testified at the trial that he was not the father of Billy Franklin and Lillie Mae and that he never .recognized them as his children; that Billy Franklin was born out of wedlock, and that he had left appellee, after his second marriage with her, because of a quarrel and was living some 18 miles away at the time of the conception and birth of Lillie Mae. We need not determine whether or not Billy Franklin was the child of appellant since at the time of the trial he was past 18 years of age and appellee was not entitled to child support for him. Appellee alleged in her petition the dates when her children were born, and her pleading constitutes an admission that Billy Franklin was, at the time of the trial, as asserted by appellant, more than 18 years of age. Appellant contends, and appellee concedes, that the law of Texas controls with respect to the age at which a minor ceases to be entitled to child support, and whether a duty of support exists. Benson v. Benson, Tex.Civ.App., 368 S.W.2d 125, writ ref., n. r. e.; Freeland v. Freeland, Tex.Civ.App., 313 S.W.2d 943.

Appellant has stated in his brief that at the time of the trial all of appellee’s children were emancipated with the exception of Lillie Mae, thus in effect admitting Lillie Mae was a minor. The birth certificate of Lillie Mae, which was introduced in evidence, shows that she was born on May 19, 1948, and that hence she was a little over 16½ years of age at the time of the trial. Appellant objected to the introduction of the birth certificate of Lillie Mae because of hearsay statements contained therein, but he did not object to the use of such birth certificate for the purpose of establishing the age of Lillie Mae. It is our view that it was admissible for the purpose of showing Lillie Mae’s age. Ford v. State, 82 Tex.Cr.R. 639, 200 S.W. 841; Northern v. State, 152 Tex.Cr.R. 569, 216 S.W.2d 192. Where evidence is admissible to establish one issue only, it is the duty of the objecting party to request the trial court to limit consideration of evidence to that issue. Hogan v. Cunningham, Tex.Civ.App., 278 S.W.2d 265; Singleton v. Carmichael, 305 S.W.2d 379, writ ref., n. r. e.; 23 Tex.Jur.2d, p. 174, Sec. 122, Evidence.

Appellant’s contention is that although Lillie Mae was born during his second marriage with appellee, he was not her father. The law is well settled that the presumption that a child born during marriage is legitimate cannot be rebutted by the testimony of the husband or wife that sexual intercourse did not take place between them. Simon v. State, 1892, 31 Tex.Cr.R. 186, 20 S.W. 399; Meyer v. State, Tex.Cr.App., 41 S.W. 632.

“Nor may any declarations of the husband or wife be received for the purpose of showing nonaccess or otherwise assailing the legitimacy of the child.” (McCormick and Ray, Texas Law of Evidence, page 112, Section 90, and cases cited)

The presumption of the fact of legitimacy of a child is one of the strongest known to the law. As stated in Pinkard v. Pinkard, Tex.Civ.App., 252 S.W. 265, “To bastardize a child born in lawful wedlock, the most clear and conclusive evidence of nonaccess is required.” There was no such evidence in the instant case. See also Lawson v. Baker, Tex.Civ.App., 1961, 351 S.W.2d 571; Byrd v. Travelers Insurance Co., 275 S.W.2d 861, writ ref., n. r. e.

The Court of Domestic Relations, after reciting that it was the opinion of the Court that appellee’s petition should be granted, and that the sum of $50.00 per month is a reasonable sum for the support and maintenance of the defendant’s children as above set out, payable the first of each month beginning December 1, 1964, made the following order:

“It is therefore ORDERED, ADJUDGED and DECREED by the Court, that the defendant, be, and he is hereby ordered to pay the sum of FIFTY DOLLARS ($50.00) per month for the support and maintenance of children payable every first, begimng December 1st, 1964, to be made payable to Harris County Probation, Room 102 Civil Courts Building, which is the designated Registry of this Court, to be transmitted to: Marcy Neff Johnson, % Clerk of Court, Common Pleas Court, Greene County, Dayton, Ohio.”

The decree of the court does not name any child or children nor otherwise identify the persons for whom the support was decreed. It is evident that the court was ordering the sum of $50.00 per month for the support and maintenance of more than one child, that is, “children”, although at the time of the entry of such decree ap-pellee had only one minor child for whom she could recover support. It is impossible for this Court to determine what amount the trial court would have found reasonable for the support of just one child, since the court found $50.00 was reasonable for the support and maintenance of more than one child. Appellant contends that the amount awarded is excessive. It will not be necessary to pass upon this assignment since the cause must be reversed and remanded for a new trial, at which time the trial court may consider what would be reasonable child support for one child, Lillie Mae, in light of appellant’s earnings and living expenses.

The trial court admitted in evidence the purported 1950 judgment of the Court of Common Pleas of Greene County, Ohio, in Marcy Neff v. Robert C. Neff. Such purported judgment is not certified in any manner, is unauthenticated, and bears no signature whatever. Although appellant did not except to the introduction of such purported judgment, it is of no probative force. Incompetent evidence cannot form the basis of a fact finding or of a judgment regardless of whether it was objected to. Texas Co. v. Lee, 1941, 138 Tex. 167, 157 S.W.2d 628; Austin Bros. v. Patton, Tex.Com.App., 294 S.W. 537.

In view of our holding, it is not necessary to determine whether there was any error in the trial court’s overruling appellant’s exceptions to appellee’s petition. The case was tried to the court without a jury. If there was any error in such connection, it was harmless.

Appellant has asserted that the confused and indefinite allegations in appellee’s petition may not be clarified by reference to the finding entry and certificate of the court of the initiating state. The Supreme Court of Arkansas, in Dean v. Dodge, 1952, 220 Ark. 853, 250 S.W.2d 731, refers with approval to an article in the Arkansas Law Review, Vol. 5, No. 4, by W. J. Brockel-bank, Professor of Law at the University of Idaho, in which it is indicated that the proper procedure is for the court of the initiating state to examine the plaintiff’s verified petition to determine whether the alleged facts show the probable existence of a duty of support, and if they do, to send the petition and its certificate to a court of the responding state where the husband has fled or in which he has property. The court of the responding state then holds a hearing, after due service of process upon the defendant, and enters the proper orders. The Act does not contemplate notice to the defendant of the proceeding in the initiating state.

In Mahan v. Read, 1954, 240 N.C. 641, 83 S.E.2d 706, the court held that the trial court erred in reaching the conclusion that the respondent’s “responsibility to support said children has already been found to exist by a court of competent jurisdiction of the County of Pulaski in the State of Arkansas.” The court said that the function of the court of the initiating state is to certify to the sufficiency of the petition, that is, that it sets forth facts “from which it may be determined that the respondent owes a duty of support.” The court further held that the court of the initiating state had no jurisdiction to make any determination affecting the substantive rights of the parties. The approval of the petition and the certificate of the Arkansas court enables the petitioner to submit herself, without the necessity of personal presence or employment of counsel, to the jurisdiction of the court in the responding state.

It is our view that the function of the certificate of the court of the initiating state is to establish that such court upon examination of the plaintiff’s petition has found such probable duty of support as to warrant transmittal of the petition, certificate and a copy of the support Act to the court of the responding state. The court of the responding state then holds a hearing, after proper notice or service of process upon the defendant, to determine whether a duty of support actually exists and if so, it enters the proper orders. The statements made in the certificate, based upon the plaintiff’s petition, and without notice to the defendant, are not to be considered by the court of the responding state as evidence of the facts alleged in the plaintiff’s petition. See 42 A.L.R.2d, p. 768, for annotation on the Uniform Reciprocal Enforcement of Support Act, and authorities there cited. The judgment of the trial court in the instant case does not show that the court in rendering its decision considered the certificate in question as constituting any evidence of probative force.

Reversed and r.emanded.


author: LANGDON, Justice.

text:
    C. C. RODDY, INC., Appellant, v. W. Paul CARLISLE et al., Appellees.
    No. 16639.
    Court of Civil Appeals of Texas. Fort Worth.
    May 28, 1965.
    Rehearing Denied June 25, 1965.

      Chester A. Oehler, Dallas, for appellant.
    Fanning, Billings, Harper, Pierce & Gil-ley, and William F. Billings, Dallas, for appellees.
   LANGDON, Justice.

C. C. Roddy, Inc., appellant, sued M. E. Oden, Oden Contracting Company and W. Paul Carlisle, appellee. The latter was sued individually and as a joint adventurer with M. E. Oden for labor, equipment and supplies furnished in connection with various State Highway construction jobs which Carlisle and Oden, or Carlisle and Oden Contracting Company had contracted to perform for the State of Texas.

Judgment was rendered against M. E. Oden and Oden Contracting Company, jointly and severally, on jobs not involving Carlisle. Judgment notwithstanding the verdict was rendered that appellant take nothing against Carlisle, which portion of the judgment has been appealed to this Court. No appeal as to M. E. Oden and Oden Contracting Company has been perfected.

By its point of error No. 1, appellant complains generally of reversible error by references to paragraphs Nos. 1 and 3 through 10 of its amended motion for new trial. Paragraphs 1 and 10 allege reversible error and that the judgment is contrary to the law and evidence but is silent as to any specific information as a basis therefor.

Paragraphs 3 through S contend it was reversible error for the court to disregard the jury findings of joint adventure in response to special issues Nos. 1A, 4A and 7A. The propriety of the court’s action in this regard is, in our opinion, the principal question to be resolved. It will be discussed later.

Paragraphs 6 through 8 complain of the court’s action in disregarding the jury’s answers to special issues Nos. 3, 6 and 9. There is no merit to this contention as the appellant was granted judgment against M. E. Oden and Oden Contracting Company in an amount which included the amounts found by the jury in response to these three issues. No inquiry was made in such issues as to the identity of the person or company from which appellant was entitled to receive compensation.

Paragraph 9 complained that the court erred in disregarding the jury’s finding that $3,255.00 was the reasonable value of attorney’s services. The court did not disregard this answer because the appellant was given judgment against Oden and Oden Contracting Company for attorney’s fees in the amount of $3,500.00.

In our opinion all of the grounds contained in the various paragraphs of appellant’s first amended motion for new trial, except paragraphs 3 through 5, are without merit as being too general in character or untenable in view of the judgment rendered for appellant against Oden and Oden Contracting Company.

Point of error No. 2 complains generally of the action of the court in the ab-sense of a motion to disregard jury findings. We find no basis for this contention. The record reflects that the appellee filed a motion for dismissal, and alternatively, for judgment non obstante veredicto on January 17, 1964. Appellant’s attorney was furnished a copy thereof on the same day. The appellee’s motion urged the court to disregard certain jury findings on issues inquiring as to “a joint adventure” between appellee and Oden on one hand, and appel-lee and Oden Contracting Company on the other hand. The court did so and final judgment was rendered on May 6, 1964.

This brings us to the question involving the propriety of the court’s action in disregarding the jury’s findings on the issues relating to joint adventure. In our opinion the action of the court was proper. We affirm.

The appellant’s original petition and exhibits including statements for various items attached thereto reflect that (1) C. C. Roddy, not C. C. Roddy, Inc., dealt with M. E. Oden rather than with W. Paul Carlisle and Oden, or W. Paul Carlisle and Oden Contracting Company, as joint ven-turers; (2) on each job statements were presented to M. E. Oden. The corporate existence was ignored as to both C. C. Rod-dy, Inc., and Oden Contracting Company.

The entire course of dealings reflected by the record are to the effect that appellant dealt with M. E. Oden and looked to him for payment in each case. The statements rendered by C. C. Roddy to M. E. Oden were addressed to M. E. Oden. The statements submitted to C. C. Roddy were by M. E. Oden or Oden Contracting Company, as were all of the checks and check stubs in evidence. Check stubs placed in evidence by appellant show amounts paid by Oden Contracting Company to Roddy, while Roddy was employed by Oden Contracting Company as a superintendent.

Contents of a letter relate to a loan to Roddy by Empire State Bank, co-signed by Oden Contracting Company and states that Roddy has eight to ten thousand dollars “coming from me”. A letter dated August 18, 1962, from Roddy to Carlisle says, “I dealt with Mr. Oden on the Wood Co. and Bowie Co. jobs * * * At another point, “I turned the record over to M. E. Oden, for payment.” A letter from Roddy to Carlisle refers to payments by Oden and charges of fuel and oil to Oden, and the cosigning of the Empire State Bank $6,000.00 note by Oden. Another letter from Roddy to Carlisle contains the following language: “I rented Mr. M. E. Oden * * * ”, and “I also rented him a Model ‘M’ Farmall Tractor * * * In the third paragraph he stated, “Mr. Oden has given me one check * * *

C. C. Roddy, when asked how soon did he know that Oden was in financial difficulties after he started the work for Oden, said he was told by different parties, the Highway Department, and believed Mr. Oden told him also, and found out that Oden could not charge at a lot of places, “so I decided that possibly I should have Mr. Carlisle come into this picture, too. So that was the reason for letting him know what Mr. Oden’s and I agreement was.” At the time he notified Carlisle, virtually all of the work had been performed and he had not gotten paid. Roddy was asked whether he had previous contact with Carlisle before he started getting reports about Oden’s credit. He answered, “Oh, I saw Mr. Carlisle on the job a time or two when he was finishing, but I didn’t discuss anything.” Roddy’s testimony is replete with instances wherein he states definitely he was dealing with Oden. In essence Roddy’s testimony is that he dealt with Oden exclusively. He had no conversations with Paul Carlisle or discussions and made no demands upon him at any time until this suit was filed. He testified that he did know that Oden and Paul Carlisle had a prime contract with the State of Texas.

The prime contracts with respect to the Smith-Wood, Bowie and Waller County jobs, do not create a joint adventure. They merely declare the obligations of the State of Texas and of W. Paul Carlisle and Oden Contracting Company with respect to performance and payment. Such contracts do not purport to define the relationship between Carlisle and Oden Contracting Company, or between Carlisle and M. E. Oden. The contract between Oden Contracting Company and W. Paul Carlisle relating to the Smith-Wood County job reflects an agreement between them to divide the work required by the contract. Under the agreement each was to assume the sole obligation and responsibility for performance of that portion of the contract allocated to him, or to the Company. Oden was to receive the amounts provided by the contract for the work units performed by his Company, and Carlisle was to receive all sums of money for all other work required under the contract. As to the work allocated to them respectively, each was to be considered as the sole principal for that portion of the work.

“Although a joint adventure must have at least some characteristics of a partnership, the terms are not synonymous. A joint adventure is ordinarily limited to a single transaction, whereas a partnership is usually formed for the transaction of a continuing general business. Another distinctive feature of a joint adventure is the right of each adventurer to sue the other for contribution or for damages without the necessity of an accounting. Nonetheless, substantially the same rules apply to both relationships although they are not identical. * * *

“The buying of chattels on joint account for sale at a profit is a common form of joint adventure. But many joint enterprises are not partnerships even where there is sharing of profits. For example, where the parties work separately for a third person, or enter into individual contracts for separate parts of one enterprise, no partnership is created. And the same is true in the case of railroads that use joint lines and facilities, or operate as connecting lines.” 44 Tex.Jur.2d 351, § 28.

In Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011 (1956), it was stated, “To constitute a joint adventure there must be a community of interest and participation in the profits. It is in the nature of a partnership engaged in the joint prosecution of a particular transaction for mutual profit. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307.

“For a joint adventure to exist there must be a community of interest both as to the profits and losses, if any. It is said in Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, that whether or not such relationship exists generally depends upon the intention of the parties. In that case the relationship was held not to be a joint adventure or partnership. The contract did not authorize either party to create any liability to third parties which would have been binding on the other. The relationship being in the nature of a partnership losses must be shared as well as profits.” See also Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011 and Norman v. B. V. Christie & Co., 363 S.W.2d 175, 176 (Houston Tex.Civ.App., 1962, writ ref., n. r. e.).

“The relationship of partners, joint adventure or mining partners being contractual in its nature, whether such a relationship exists generally depends upon the intention of the parties.” As between the parties a court would not declare the existence of a partnership unless the “intention” clearly appears. Luling Oil & Gas Co. v. Humble, supra.

Among other elements necessary to create a joint adventure is the requirement of a mutual right to control. 48 C.J.S. Joint Adventures § 2a, p. 809. See also § 14(b) of same text.

Partnership or joint adventure by estop-pel must be specially pleaded and the burden of proof is upon the party so alleging. 44 Tex.Jur.2d 437, § 111 and p. 447, § 122 of same text.

Finally the appellant contends the court erred in overruling its objection to testimony concerning the “secret” agreement between Oden and the appellee, fixing their respective responsibilities and remu-; neration under the contract with the State of Texas, the terms of which have been, above described.

Obviously, the appellee and Oden could not alter their obligations under the contract with the State of Texas by an agreement between themselves. The agreement was properly admitted on the question of joint adventure and particularly in view of the cross-examination of appellee with respect to the method of handling proceeds received from the State of Texas under the contract. The document and all testimony showing the agreement and working arrangements between Oden and Carlisle were properly admitted.

We have concluded that there is no evidence of probative value to support the contention that the appellant dealt with a joint adventurer rather than with M. E. Oden or Oden Contracting Company or that a joint adventure or venture in fact existed between Carlisle and M. E. Oden or Carlisle and Oden Contracting Co. We think the evidence conclusively establishes the reverse of such contention.

All points of error are overruled and the judgment of the trial court is affirmed.

Affirmed.