author: TOWNSEND, Commissioner.

text:
    Robert G. SAXTON, Alleged Employee, Plaintiff-Respondent, v. ST. LOUIS STAIR COMPANY, Alleged Employer, and Iowa National Mutual Insurance Company, Insurer, Defendants-Appellants.
    No. 32426.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Evans & Dixon, Edward W. Warner, St. Louis, for defendants-appellants.
    Hullverson, Richardson & Hullverson, Orville Richardson, Corinne Richardson, Dubail, Judge & Kilker, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

This is an appeal from a judgment of the Circuit Court affirming a workman’s compensation award of $10,894 by the Industrial Commission in favor of the claimant Robert G. Saxton. The sole issue in the case is whether or not Saxton was an employee of the stair company at the time of his injury.

On August 16, 1963 Saxton accidentally sustained amputation of the left arm midway between the wrist and elbow while operating a planing machine in the manufacturing plant of the stair company.

The St. Louis Stair Company is a corporation, having outstanding one hundred shares. The claimant first became connected with the company in 1947 when he entered its employment as a workman in its manufacturing plant in St. Louis. In 1953 he purchased from his father-in-law, Frank Bruckner, forty-nine of the fifty shares owned by Bruckner. Of the remaining fifty-one shares, forty-nine are registered in the name of Frank J. Jostrand, who at all relative times was the president of the corporation. One share remains in the ownership of Frank Bruckner and one is registered in the name of Ben Jostrand. There is evidence in the record that the one share registered in the name of Ben Jostrand is owned by Frank J. Jostrand, who stated, “It is signed back to me.” At the time of the accident claimant was secretary-treasurer of the company and was also its shop foreman in the manufacturing plant.

In each of the years 1954 — 1963, inclusive, the board of directors of the stair company voted an annual salary of $18,000 to Frank J. Jostrand and the same amount to Robert G. Saxton. In none of these years, however, was the income of the company sufficient to justify the payment of these salaries in full and in each of such years Frank J. Jostrand and the claimant each waived, in equal amounts, his right to a part of the salary so voted by the directors. The amount waived varied from $5500 to $12,-000. In each of the four years, 1956, 1957, 1958 and 1959, the larger amount was waived by each of the named parties. The waiver in 1962 and 1963 was for $8000 each.

Between 1946 and 1953, when Saxton acquired his shares from his father-in-law, Bruckner, and the latter retired from active participation in the management of the business, the Board of Directors voted Bruckner and Jostrand each a salary of $18,000. With the exception of perhaps two years, there was throughout this period a waiver each year of a part of the voted salaries. Appellant emphasizes that the same salary was voted to each of the shareholders holding forty-nine registered shares and that the waiver by each in each year was of the same amount.

The business of the company was carried on in two divisions, one sales and installation, over which Frank J. Jostrand exercised complete supervision; the other division, manufacturing, was immediately supervised by the claimant. Ordinarily the claimant had two carpenters working under him in the manufacturing end; at the time of claimant’s injury, however, only one carpenter was so engaged. The claimant was back at the plant only twelve days after his injury and at that time was interviewed by the investigator of the stair company’s insurance carrier. Questions and answers were recorded by a court reporter. He was asked “Do you own any stock in the company?”, and he answered, “I own half interest in the company.” Question: “You own a fifty per cent interest, is that right?” Answer: “That’s right.” Question: “How is the other stock held?” Answer: “By my partner, Mr. Frank Jo-strand.” Thereafter the insurer paid the claimant $47.50 in respect of the time immediately following the injury of August 16, 1963; the insurer also paid $846.85 in respect of medical expenses and $400.40 for an artificial arm.

This Court handed down its opinion in Voss v. Merchants Dairy Company, 373 S.W.2d 662, on December 17, 1963.

On February 14, 1964, the same claims investigator for the insurer again interviewed the claimant and took down his statement in question-and-answer form. At this interview Frank Jostrand was present and added some remarks to the answers given by the claimant. Neither the statement of August 28, 1963, nor that of February 14, 1964 is in the record; however, the content of each statement was elicited, in part, at the time of the cross-examination of the claimant in the hearing before the referee. Extensive quotation is necessary in order to illustrate the basis of the contentions herein of the respective parties. The following testimony was given with respect to the statement of August 28, 1963:

“Q. And I note that you were asked the question: Do you own any stock in the company? And you answered: I own half interest in the company. The question then was: You own a fifty per interest, is that right ? The answer was: That’s right. The question was then asked: How is the other stock held? And the answer in your words was: By my partner, Mr. Frank Jostrand.
You remember those questions being asked and those answers being given at the time that statement was taken?
A. I don’t remember. If they were written there, I guess I said them.
Q. They were true at that time, sir, the answers given to the questions that I have just read?
A. Yes, sir.
Q. And they are true today, isn’t that ■correct ?
A. No.
Q. Now, what I am asking you is whether or not these statements were made voluntarily by you at the time that the investigator was at the premises of the St. Louis Stair Company inquiring of your injury and of the stock ownership which you had in the company; isn’t it correct that they were made voluntarily by you at that time?
A. Yes.
Q. And they were statements that comprised your general knowledge of your association with Mr. Jostrand in the company at that time, .isn’t that correct, sir?
A. Yes.”

With respect to the statement of February 14, 1964, the following testimony was •developed:

“Q. As a matter of fact, on February 14, 1964, you were asked the question: Who does the hiring of these [shop] men ? And you answered: me. Isn’t that correct?
A. Yes.
Q. And you were asked: Ordinarily who decided whether they worked out, meaning whether they were acceptable to the corporation, I presume, and you answered: Me. Again, isn’t that correct?
A. Yes.
******
Q. The question was again asked you on that date: You are the one that hires them and you are the one that tells them what to do ? And the answer was: Yes. Is that correct?
A. Yes.
Q. The next question then on that date was directed to you and it was as follows: Quote, ‘Do you have the right to hire and fire as far as in here goes?’ And the answer was: Yes.
A. Yes.
Q. Isn’t that correct? The reference was to the manufacturing end of the business, isn’t that correct?
A. Yes.
Q. So that you had the right and answered yes, that you did have the right of hire and fire of the manufacturing process employees?
A. Yes, sir.
Q. Now, insofar as your own position with the company is concerned, you were asked a series of questions, were you not, sir, concerning who decided what you did on the job and who decided when you did the work and so forth? You remember those questions ?
A. Yes.
Q. You remember generally that you were asked as follows: Who decides what you should do on the job? Did you decide that yourself? And you answered: I don’t know what you mean now. Then it was clarified: Well, when you go to work you are going to have certain tasks that you are going to take up during the day. And you answered: Yes, sir, of course. The answer was obvious. Following that, you are asked the question: Now who decides what you are going to do that day? And you answered: Me. Is that correct?
A. Yes.
Q. Then, the question was: Mr. Jostrand doesn’t have anything to do with that, is that right? And you answered: He has to furnish the tickets.
A. That’s right.
Q. Now, the tickets that you referred to were the same work orders or purchase orders that you mentioned this morning ?
A. Yes.
Q. In other words, there would be no manufacturing process without the purchase order tickets coming through to the manufacturing plant which you manage, is that correct?
A. Yes.
Q. And you were further asked the question: Do you consider yourself as being boss of these operations that you engaged in? And the answer was: Oh, yes. I would, wouldn’t you? Apparently, you in turn questioned Mr. Jostrand direct and he answered: Why, of course.
A. Yes.
Q. Is that correct?
A. Yes.
Q. Those questions and answers and statements were made?
A. Yes.
Q. They were true and correct at the time they were made?
A. Yes.
Q. And they are true and correct today also?
A. Yes, sir.
Q. Again on February 14, 1964 you were asked the question, were you not, Quote: ‘Does anyone have the right to-fire you?’ Quote. And you answered:. No. Is that correct?
A. Yes, sir.”
* * * * * *
“Q. And further, in keeping with the-relationship you had-with Mr. Jostrand he made a statement which is contained in the statement taken of you and he said as follows in respect to whether there-were corporate meetings, executive meetings, and so forth. Rather than you answering the question, Mr. Jostrand apparently interspersed his answer, quote,. ‘We have a meeting here every day. We talk about whatever comes up, about what we were getting for the job, what jobs we are going to do, and what we are going to turn down’, close quote. Now,, again, in that respect he was discussing- and talking about meetings between you and he, Mr. Jostrand, is that correct?
A. Yes, sir.
Q. And when he said we, we, we, he meant you and he, Mr. Jostrand, isn’t, that correct?
A. Yes, sir.”

After verifying, upon cross-examination,, that he had said on February 14, 1964, that no one had the right to fire him, claimant subsequently repudiated that statement by testifying that “Mr. Jostrand can fire me.” He then stated that this clarification of the February 14 statement came about subsequent to being advised as to the status of employee and employer under the compensation act and that “until such time as that clarification was made, either by legal adviser, by referee, or by your attorneys,” he stood by the answers that were given in the February 14 statement. Similarly, upon cross-examination, he asserted that his answers on August 28, 1963, that he owned a half interest in the company, that his was a fifty per cent interest and that the other stock was held by his partner, Frank Jo-strand, were true on August 28. However he testified that such answers were not true on the date of the hearing before the referee.

Referring to the August 28 statement, claimant was asked:

“Q. Could you tell us what you meant when you termed Mr. Jostrand or called him your partner?
A. I could have called him my buddy or my pal or anything else. I mean, partner was just a word I used.
Q. Then, your explanation of the term ‘partner’ is that it had nothing to do with a fifty-fifty ownership or partnership in the business enterprise, is that correct ?
A. That’s right.”

Until about March 1, 1964, the question of claimant’s status as an employee or employer had never been brought up. There is no evidence of any communication between insurer and claimant between February 14, 1964 and March 13, 1964, but upon the latter date claimant called upon the legal adviser at the Division of Workmen’s Compensation. Upon cross-examination claimant was asked whether he had had since that date “all sorts of advice as to what your status was” and he answered: “From my own attorneys, yes.”

At the hearing before the Referee the claimant was the only witness. Pertinent parts of the by-laws of St. Louis Stair Company were read into the record and claimant entered as exhibits copies of the minutes of the meeting of the shareholders of that Company on February 4, 1963 and of the Board of Directors meeting on the same date. The medical and surgical record is not relevant to the only issue in the case.

Claimant testified as to the inception of his connection with the company in 1947, his purchase of forty-nine shares from his father-in-law in 1953, the latter’s continued retention of one share, the identities of the President, Vice-President and Secretary-Treasurer and the nature of claimant’s duties in the last named position. He stated that in addition to being an officer of the company he was the shop foreman in the manufacturing division of the company and he detailed his duties in that capacity' as the layout of rail, the layout of carriages, the cutting, gluing up, dressing and sanding of treads, risers and stringers and the general layout work of stairs, in the course of which he personally did carpentry work and operated shop machines. Later he characterized himself as the boss over the men in the shop, although he worked right along with the carpenters.

On direct examination claimant’s testimony developed the thesis that overall management of the corporate affairs was in the hands of Frank Jostrand, president, and that claimant was subject to his orders. He stated that he was originally placed in his position as shop foreman by Jostrand, that he had never made any decision against Jostrand’s express wishes or statement to the contrary, that he had taken directions and instructions from him and upon occasion he had followed instructions which were contrary to his own idea of the way in which the matter should be handled —without specification of any such incidents. When there was a difference of opinion as to placement of the company’s insurance, Jostrand made the decision. Company contracts for the installations of stairs were signed by Jostrand. When new employees were needed in the shop, claimant made recommendations to Jostrand and they would confer on the matter; after that Jostrand “said if I would need the men to go ahead and hire them if they were good men.” The company’s premises were burglarized several times and in order to stay in production purchases of new tools and equipment were necessary; those used inside the shop were ordered by claimant after consultation with Jostrand — “I spoke to Mr. Jostrand about it and he said to replace them,” — while outside tools were bought by Jostrand.

The Workmen’s Compensation Act provides: “The word ‘employee’ as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election.” Sec. 287.020 V.A.M.S. Our case law has explained the service referred to in this manner: “The relationship is bottomed upon services * * * to be rendered by the servant * * * to the other, whether as master or employer, and is peculiarly characterized by right of control vested in the latter * * * the word service, as used, signifies, as already pointed out, controllable service.” Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. The word employer is defined as “(1) Every person * * * using the service of another for pay; * * Sec. 287.030 V.A.M.S.

The scope of review of an award of the Industrial Commission is limited in this manner: “Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law * * Sec. 287.490, V.A.M.S.

In the present case under the heading Findings of Fact the Industrial Commission has stated: “Was above employee in the employment of above employer at the time of accident? Yes.” Under the circumstances of this case, this finding was quite obviously not a finding of fact; it was a conclusion of law which, if accepted, determined the only issue here present. The validity of the conclusion that the claimant was an employee would depend upon findings of fact which would support it. Under the above definitions and the holdings of the Supreme Court, such necessary facts were two in number, one, that the claimant was in the service of the St. Louis Stair Company, and, two, that said services were controllable. The award of the Commission makes no forthright findings of the character last indicated. Under the head of Additional Findings of Fact and Conclusions of Law the award states: “The evidence suggests that even in the production field Jostrand at times exercised control over Saxton and that, in any event, the corporate by-laws clearly indicate that as corporate president the right of control was fully vested in him.” The first is not a finding of fact; the second recites only the purport of the by-laws and so leaves untouched the question of whether or not the parties really operated outside the corporate form. Accordingly, we do not have before us any findings as to the fundamental underlying facts which, the Statute commands, shall be conclusive and binding. Near the end of the award the Commission said: “We think that on August 16, 1963 * * * he was an employee in the service of the appellant corporation. We so hold.” This again was a conclusion, not made on the basis of any precise findings of fact, and so brings the whole matter within the operation of the rule that “decisions of the commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction.” Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, 65-66; Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292. The determination that one is an “employee” involves a question of law no less than does the determination that one has suffered an “accident”. See Baker v. Krey Packing Co., Mo.App., 398 S.W.2d 185; Miller v. Lever Brothers Co., Mo.App., 400 S.W.2d 625.

The appellants would have us find that the historic ordering of the affairs of the stair company clearly shows that claimant was not an employee “but was, in fact, with his ‘partner’, the corporation” — in effect that Jostrand and Saxton in reality carried on the affairs of the business as co-owners and hence as partners.

In support of their contention, the appellants urge upon us the holding in Voss v. Merchants Dairy Company, supra. We do not find that case controlling here. In the Voss case the compensation claimant was the president and manager of the alleged employer corporation, which had only one other shareholder. Claimant testified that in the management of the business he “did whatever I thought I should do at the time”; this Court found that there was no evidence that he rendered any controllable service and that the Commission’s finding that he was an employee was based on speculation, surmise and guesswork. The complete lack of evidence of controllable service clearly differentiates that case from the present one.

Section 287.490, V.A.M.S., limiting an appellate court to a review of questions of law, refines that limitation further by providing that the court “may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

******
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

Hence it is obvious that it does not fall within the province of the court to weigh the evidence for the purpose of determining whether it would arrive at the same conclusion as the Commission. However the requirement of “sufficient competent evidence” does necessitate the evaluation of certain portions of the evidence submitted.

The use of the corporate form is not necessarily determinative of the question of whether claimant was in the service of the corporation, despite the observance of certain corporate formalities. Human experience requires that a realistic approach be taken; that approach recognizes the possibility that parties may be in the service of themselves as co-entrepreneurs although they utilize the corporate form when convenient for their purposes. It is possible for parties to have followed such a course of conduct that it becomes apparent that they intended to carry on as partners because their arrangement of the affairs of the particular enterprise was such as to indicate that they operated by mutual agreement outside the confines of corporation law. Whenever the evidence justifies the latter conclusion, the time has arrived to pierce the corporate veil.

Here we are presented with the picture of a small and closely-held corporation which might well be called a two-man enterprise or at least a two-family concern. We attach no significance to the fact that Jostrand held fifty shares and claimant forty-nine, since the hundredth share was in the possession of claimant’s father-in-law. In that situation it would come naturally for claimant to say that he had a half-interest in the company, although the statement was not technically correct; in any event he disclosed in the statement of August 28 that his father-in-law held one share — neither do we attribute great significance to claimant’s statement that the other stock was held by his “partner, Mr. Frank Jostrand.” In such a closely-held company where all managerial functions were concentrated in two men whose activities were completely differentiated and yet complemented one another in the consummation of the company’s business, we believe that the word “partner” would come naturally to one of them when making reference to the other. This seems especially likely where the person using the term was unschooled in the law.

The evidence which tends most to support appellants’ position that Jostrand and Saxton operated as partners is that which shows that from 1946 to 1963 salaries of two persons, each owning forty-nine or fifty shares, were fixed at the same amount and that through the operation of waivers such equality of salaries was apparently designed to absorb most of the earnings of the enterprise. There is no evidence that the company ever paid a dividend.

In considering the question of whether there is substantial competent evidence to sustain an award, the reviewing court must view the evidence including all reasonable inferences therefrom in a light most favorable to the award. Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 296, and cases cited therein. And so we proceed to consider whether on the whole record there was competent evidence of the underlying fact necessary to reach the legal conclusion that claimant was an employee. That question of fact was: Was claimant in the controllable service of the corporation?

The company was incorporated in 1932. Since that time it has functioned as a corporate entity. The evidence shows that it had a regular checking account, that it had retained counsel, that it employed persons other than claimant in its installation crew and in the shop and that in respect of such employees it paid withholding and social security taxes in the corporate name. Regular minutes of shareholders’ and directors’ meetings were kept. Six months before claimant’s injury the annual meeting of shareholders was held; at that meeting four directors were elected in accordance with the provisions of the ^by-laws. The minutes show that Frank Jostrand reported that he had traded in a company-owned station wagon on the purchase of a later model. On the same date the Board of Directors met and elected corporate officers as follows:

President, Frank J. Jostrand
Vice-President, Frank Bruckner
Secretary-Treasurer, Robert G. Saxton.

The president reported that due to business conditions it was not possible to pay the salaries of officers for 1962 previously authorized. Thereupon Jostrand and Saxton each waived $8000 of his salary and agreed to accept $10,000 as full salary for the year 1962.

The by-laws of the Company specify the duties of the officers and in respect to the President provide:

The President shall preside at all meetings of the Board of Directors, shall sign all notes, agreements, or other instruments in writing made and entered into for or on behalf of the corporation, and sign all certificates of stock; and he shall have general supervision over the business and affairs of the corporation.

Under the corporate form of organization the right of corporate officialdom to control the operational activities of a shop foreman is clear. In the by-law last quoted the power and right of the corporation president to supervise the foreman is made explicit. Turning to an old friend, Webster’s Third International Dictionary, Unabridged, one finds that “supervise” means “to co-ordinate, direct, and inspect continuously and at first hand the accomplishment of” another, or to “oversee with the powers of direction and decision the implementation of one’s own or another’s intentions.” No doubt can be had that the by-law gives the president the power and right to control the operations of a shop foreman. Whether one is in the controllable service of another depends upon the right to control. Maltz v. Jackoway-Katz Cap Company, supra; Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866.

In addition to the right to control by virtue of the by-law, claimant’s evidence shows actual control by the president of claimant’s activities as shop foreman. While we are not greatly impressed by some contrived answers of claimant, given upon his direct examination before the referee, it was the function of the Commission to pass upon the credibility of such testimony. Monical v. Armour & Co., Mo., 307 S.W.2d 389; Scott v. Wheelock Bros., Inc., 357 Mo. 480, 209 S.W.2d 149. In any event, such a defect, if it be such, did not run to the whole of claimant’s testimony.

It must be held that there was substantial competent evidence to support the award. And it cannot be found that such substantial evidence was overwhelmed by the great weight of the evidence contra.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

ANDERSON, Acting P. J., RUDDY, J., and LACKLAND H. BLOOM, Special Judge, concur.

       There are no balance sheets or earnings statements of St. Louis Stair Company in evidence.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Cecil WYDICK, Appellant, v. Remus THOMAS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Rehearing Denied Feb. 3, 1967.
    Walter L. Catinna, Woodward, Bartlett & Catinna, Hartford, for appellant.
    Earl F. Martin, Jr., Martin & Martin, Hartford, for appellee.
   MONTGOMERY, Judge.

Remus Thomas recovered judgment of $3,000, compensatory damages, and $2,000, punitive damages, against Cecil Wydick for the alienation of the affections of his wife, Katherine. Wydick appeals and urges that the evidence is not sufficient to sustain the verdict on the issues of liability and damages ; that the question of punitive damages should not have been submitted to the jury; and that appellee’s counsel was guilty of misconduct on the trial.

Appellee has failed to file a brief. For such failure, under RCA 1.260(c), the court may “(2) reverse the judgment if appellant’s, brief reasonably appears to sustain such action; or (3) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits-of the case.” Such failure authorizes a reversal. Commonwealth by and ex rel. Marcum v. Fitzgerald, Ky., 376 S.W.2d 518; Commonwealth, Department of Highways v. Johnson, Ky., 377 S.W.2d 596.

The brief filed by appellant reasonably appears to sustain a reversal of the judgment and the failure of appellee to file a brief is regarded as a “confession of error.”-

The judgment is reversed, with direction to enter a judgment in favor of the appellant.


author: CULLEN, Commissioner.

text:
    SEMET-SOLVAY DIVISION OF ALLIED CHEMICAL CORPORATION, Appellant, v. WORKMEN’S COMPENSATION BOARD et al., Appellees. SEMET-SOLVAY DIVISION OF ALLIED CHEMICAL CORPORATION et al., Appellants, v. WORKMEN’S COMPENSATION BOARD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Rehearing Denied Feb. 3, 1967.

      H. Rupert Wilhoit, Wilhoit & Wilhoit, Grayson, for appellants.
    C. B. Creech, Ashland, Paul D. Rehm, Versailles, for appellees.
   CULLEN, Commissioner.

The Workmen’s Compensation Board dismissed Walter Robinson’s claim for workmen’s compensation, finding as a fact that Robinson “did not suffer a traumatic injury by accident arising out of and in the course of his employment * * * on or about April 16, 1964.” On appeal, the circuit court entered judgment reversing the board and directing that an award be granted for total permanent disability. An appeal was taken to this court from that judgment and is now before us. Pending this appeal the board, on Robinson’s motion, made an award in accordance with the circuit court judgment. The employer appealed that award to the circuit court, which entered judgment dismissing the appeal. We have an appeal here from that judgment also.

Taking up first the second judgment, we think it is clear that the board had no jurisdiction to take gny steps in the case while the appeal wgs pending. See Jerry’s Drive In, Inc. v. Young, Ky., 335 S.W.2d 323. Its award was a nullity and the circuit court should so have adjudged on the appeal from it. The second judgment therefore was erroneous.

It is our opinion that the first judgment also was erroneous, on the merits. Since the board had found against the claimant, who had the burden of proof and the “risk of not persuading the Board in his favor,” the only issue before the circuit court was whether the claimant’s proof was so strong as to compel a finding in his favor — so persuasive that it was clearly unreasonable for the board not to be convinced by it. The fact that the claimant’s evidence was positive whereas the defensive evidence was merely negative in character is not a controlling consideration. That such is the law was firmly established in Lee v. International Harvester Company, Ky., 373 S.W.2d 418, and reaffirmed in Thompson v. Mayflower Coal Co., Ky., 379 S.W.2d 459, and Akers v. United Carbon Gas Co., Ky., 386 S.W.2d 957.

The claimant’s evidence in the instant case was not so strong and persuasive as to require a finding in his favor. His claim was that he injured his back while lifting some heavy bricks in the course of his employment on April 16,1964. He so testified. He further testified that he reported the accident to his foreman. He undertook to furnish corroboration by two fellow employes, one of whom testified that Robinson had told him on April 16 that he had “hurt hisself,” and the other of whom testified that he was present when Robinson reported the accident to the foreman. However, the foreman denied that any report of accident was made to him.

Robinson’s doctor testified that Robinson’s back condition was attributable to an injury occurring on April 16, 1964, reported to him by Robinson. But the doctor testified that when Robinson came to him on April 17 he said nothing about any accident’s having occurred on the previous day (it was at a later time that Robinson first told the doctor of an April 16 accident), and that he was “still” complaining of pain in his back for which he had visited the doctor on April 6. On the April 6 visit Robinson had attributed his pain to an old injury of 1958. The doctor’s report covering the April 6 visit stated that Robinson then was unable to work from his back condition. Robinson testified that on the April 6 visit he was complaining only of pain in his leg, but that is not what the doctor’s report says.

We think that the conflicts and inconsistencies in the evidence were such that it was clearly reasonable for the board not to be convinced of the truth of the claim. Even if it be considered that the medical evidence was convincing that Robinson had sustained an injury somewhere on April 16, the evidence was not convincing that he sustained it in his employment. His credibility was placed in question by the foreman’s denial of his testimony that he reported the accident to the foreman; also by the fact that on his visit to the doctor on April 17 he said nothing about any accident’s having occurred on the previous day but seemed to be continuing his complaint of an old injury. Other minor inconsistencies which we need not detail also cast some doubt on the validity of the claim.

Both judgments are reversed with directions to enter judgment upholding the original order of the board dismissing the claim.


author: WOODLEY, Judge.

text:
    Arnold J. ASHFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 39976.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    Rehearing Denied Feb. 1, 1967.
    Arnold J. Ashford, pro se.
    Perry T. Brown, County-Dist. Atty., Eastland, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is felony theft of a stock of merchandise; the punishment, 8 years.

Prosecution was upon an indictment in the ordinary form for felony theft, but the State relied upon Art. 1413 P.C. (Theft by False Pretext).

Trial was before a jury upon a plea of not guilty and the punishment was assessed by the trial judge as provided in Art. 37.07(2) (c) C.C.P.

Though notice of appeal was given and entered of record as a part of the sentence pronounced March 25, 1966, appellant was taken to and received by the Texas Department of Corrections on April 8, 1966. His plea to the trial court that he be returned to the Eastland County Jail to be there confined until he made bond in the amount set by the court, or until his appeal was disposed of, was rejected by the trial judge. His petition for writ of habeas corpus presented to this Court was endorsed denied, but the attention of the trial judge was directed to the recent opinions of this Court in Ex parte Griego, 366 S.W.2d 572, and Ex parte Sena, 366 S.W.2d 568, which make it clear that appellant should not have been sent to or received by the Texas Department of Corrections because his conviction was not final. This Court should have and does now direct that he be forthwith returned to the Eastland County Jail.

Appellant’s prison drawn brief filed in the trial court is deemed sufficient to present to this Court for review the contention that the evidence is insufficient to sustain the conviction for theft by false pretext.

The evidence relied upon by the State was to the effect that J. W. Slaughter exchanged his stock of merchandise in his furniture store to appellant for two vendor’s lien notes which, in addition to the endorsement of the Payee, bore the endorsement with recourse of one H. G. Whitehead, Sr.

Mr. Slaughter testified that he first told appellant that he did not want to take real estate notes, but appellant insisted that the notes were “good,” and had Slaughter call the endorser, H. G. Whitehead, Sr. Mr. Whitehead told the complainant that the notes were in good order and that they would be paid when they were due. Mr. Slaughter, still unsatisfied, told appellant he wanted further information on Mr. Whitehead’s financial responsibility. Appellant had Mr. Slaughter go to Mr. Mc-Cracken, President of the Cisco State Bank, who called the Mansfield State Bank, Whitehead’s bank, and got a statement as to Whitehead’s financial status. A representative of the bank.at Mansfield told Mr. McCracken that the notes were good; that the bank had loaned Mr. Whitehead as much as $12,000 without security, and that it had been dealing with Whitehead for at least eight years. On the basis of this information, Mr. McCracken advised Mr. Slaughter that he should accept the notes.

Mr. Slaughter then consulted his attorney concerning the transaction, and the attorney approved the acceptance of the notes, and prepared a bill of sale.

Subsequent to the transfer of the merchandise by Mr. Slaughter to him, appellant sold most of the merchandise by marking it down 25%, and that which remained was sold at auction.

Thereafter Mr. Slaughter unsuccessfully attempted to collect on the notes.

The jury was instructed in part as follows:

“You are further instructed that you cannot convict the defendant in this case unless you believe from the evidence beyond a reasonable doubt that J. W. Slaughter relied on the representations of the defendant, Arnold J. Ashford, to the effect that the endorser on the notes, H. G. Whitehead, was financially responsible and wealthy, as represented by the defendant, and that the notes would be paid by him.
“And further, you cannot convict the defendant if the said J. W. Slaughter relied to any extent on any investigations made by him, if he did, or any investigation made for him by any other persons, if such was the case, and if you have reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘not guilty’.”

We find no evidence in the record showing that H. G. Whitehead, Sr. was not a wealthy man, as appellant represented. Even so, the evidence affirmatively reflects that Mr. Slaughter did not rely alone upon the representation of appellant but, to some extent at least, relied upon investigation made by him and by other persons for him, and under the court’s charge above quoted the jury was not authorized to find appellant guilty of theft by false pretext.

Mr. Slaughter testified on cross-examination:

“Q. Do I take it, Mr. Slaughter, that your primary complaint now is that Mr. Whitehead did not pay these notes as they matured?
“A. My complaint is that Mr. Ashford sold me these notes, knowing they were no good.
“Q. And because Mr. Whitehead did not pay them, is that correct?
“A. That’s one of the reasons, I suppose. Nobody paid them; they proved to be no good.
‡ ⅜ ‡ ⅜ ⅜ ⅜
“Q. In any event, you knew better than to buy those notes on his statement, didn’t you?
“A. I wouldn’t have bought them on his statement that I had at that time, no.
******
“Q. So, in trading for these notes, you were not relying upon the endorsement of Mr. Ashford, but rather upon the endorsement of Mr. Whitehead. Is that correct?
“A. That’s correct.
******
“Q. So, you really weren’t relying upon what Mr. Arnold Ashford told you, but rather you were relying upon what Mr. Whitehead told you and upon what Mr. McCracken told you. Is that correct?
“A. I was relying on what they both said about it.”

In Thornton v. State, 171 Tex.Cr.R. 565, 352 S.W.2d 742, the defendant represented to the purchaser that there were no further debts owed on the property purchased, when in fact there was a federal tax lien on the property. The court pointed out that to sustain the conviction for theft by false pretext, the showing had to be made that the defendant: (1) Knew there was an unpaid lien; (2) Represented that the property was clear, intending to deprive the complainant of the amount of the lien; (3) Did appropriate a portion of the money he had acquired by false representations, knowingly made, to his own use and benefit; and (4) The complainant relied upon the appellant’s representations that the property was clear rather than the information he received at the County Clerk’s office to that effect.

In holding that the false pretext was not the inducing cause which moved the injured party to surrender the property, we said:

“The evidence does not show that Spencer (the complainant) was induced to part with his $2500.00 by appellant’s (Thornton’s) representation that the house was clear. He investigated for himself and was so advised by a deputy county Clerk.” 352 S.W.2d 742, 743.

In the case before us, an even more extensive investigation was made by the complainant (Slaughter). His lawyer and banker, and the banker of the guarantor of the notes were consulted prior to the acceptance of the notes. It was the advice of those whom he consulted, and not the representations of appellant, which constituted the major inducement for complainant’s parting with his property.

The judgment is reversed and the cause is remanded.


author: MORRISON, Presiding Judge. WOODLEY, Judge.

text:
    Adiel F. GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 39873.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966.
    Second Rehearing Denied Feb. 1, 1967.

      John J. Browne, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

The offense is possession of heroin with two non-capital felony convictions alleged for enhancement; the punishment, life.

In order to properly appraise appellant’s grounds of error presented in his brief, we will briefly summarize the facts. Narcotic police officers armed with a search warrant appeared at appellant’s apartment, announced their identity and purpose, and when the occupants of the apartment “panicked” and began to run around inside the apartment, entry was forced. As they entered appellant told a woman occupant to pick up the heroin from the table. She ran from the bathroom, picked up a cellophane package from the table and ran toward the back door where she was intercepted by other officers who were entering through that door. When they demanded to know if she had anything, she reached in the pocket of her blouse or pajama top and handed the cellophane package to one of the officers. At this juncture appellant spoke to the officers and stated “that the heroin was his and that his wife did not know what she picked up and nobody else in the house knew what was in the package.”

The chain of custody was proven as adequately as was done in Ray v. State, 170 Tex.Cr.R. 640, 343 S.W.2d 259, and we find the same sufficient. The capsules contained in the cellophane package were shown to contain heroin.

Appellant did not testify in his own behalf.

After the jury found appellant guilty of the primary offense, he elected to have the Court set the punishment. Appellant’s identity and the successiveness of the prior convictions were established by the testimony of J. C. Roberts in person and by a fingerprint expert and by careful questioning by the trial judge.

We shall discuss the contentions advanced by appellant. He first alleges that the affidavit for the search warrant was insufficient to establish probable cause. The affidavit is identical, except for names, date and addresses, to the affidavit set forth in our opinion in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434. Appellant contends that we were in error in Acosta and cites as authority Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431. The affidavit is set forth in haec verba in Riggan v. Commonwealth, 206 Va. 499, 144 S.E.2d 298, and is as follows:

“The material facts constituting probable cause for issuance of the warrant._ Personal observation of the premises and information from sources believed by the police department to be reliable. -”

A comparison of the affidavit in Acosta, which will not be again set forth in this opinion, with the Riggan affidavit demonstrates that the Acosta affidavit clearly states probable cause, while there is room for a difference of opinion as to the sufficiency of the Riggan affidavit.

Appellant also relies on the opinion of the United States Court of Appeals, D.C.Circuit in Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748. It would appear from the more recent case of United States v. Freeman, 358 F.2d 459, from the Second Circuit Court of Appeals that there is a conflict among the circuits, and we adhere to our holding in Acosta until the Supreme Court of the United States settles the conflict.

In order to properly discuss appellant’s next contention it is necessary to note that while testifying concerning their activities prior to making application for the search warrant the officers stated that they had kept appellant’s apartment under surveillance for a period of two and one-half hours and that during such time five known, narcotic users entered appellant’s apartment, stayed a few minutes and left. In his brief appellant says, “In this point under discussion, we are confining our argument and authorities to the rules of evidence which are concerned with the proof of extraneous crimes by the defendant or others.”

The State takes the position, and we agree, that such evidence does not constitute proof of extraneous crimes. This Court has held in Salas v. State, 365 S.W.2d 174, in compliance with the holding of the Supreme Court of the United States in. Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, that narcotic addiction is not in itself a crime.

Appellant next contends that one of the prior convictions alleged for enhancement: was void. We do not agree and adhere to' our holding in Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219, and the recent opinion in Ross v. State, Tex.Cr.App., 406 S.W.2d 464.

He next contends that the proper sequence of conviction, release and recon-viction was not proven. It was developed from the testimony of J. C. Roberts that appellant was released from the Department of Corrections on the Grayson County conviction alleged on March 16, 1954. Officer Westfall testified that he arrested appellant on March 23, 1956, “for burglary on that day”, and that he was later convicted in the Dallas County case also alleged for enhancement. This proof was ample.

Appellant next contends that the court erred in permitting Officer Garcia to testify that on the day of the search he had a conversation with someone concerning the appellant. The trial court permitted the question, but instructed the witness not to relate “what the conversation was.” We do not agree with appellant that such testimony constituted hearsay evidence or that error was reflected by the court’s ruling.

His last contention was that the oral confession of appellant was not admissible. It was made within seconds after the officers entered the apartment and was clearly admissible under the res gestae exception.

Finding no reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant again urges that the affidavit for issuance of the search warrant was insufficient to establish probable cause.

Our opinion in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, supports our holding to the contrary and we are not disposed to overrule it.

He re-urges the contention that the testimony concerning narcotic users entering appellant’s apartment was inadmissible because it tended to prove extraneous offenses.

We agree that Salas v. State, Tex.Cr.App., 365 S.W.2d 174, holding that narcotic addiction is not in itself a crime, is not authority for holding that the evidence mentioned does not constitute proof of extraneous crimes.

Appellant argues that without regard to whether those entering and leaving his apartment were addicts or merely users, the evidence was inadmissible because it showed or tended to show the sale of narcotics.

Even so, proof of the purpose for which the narcotics were possessed was admissible. The rule against admitting evidence of other crimes by the accused is inapplicable if such evidence logically tends to show his guilt of the crime charged, and is not too remote.

Appellant’s remaining contention is that Madeley v. State, Tex.Cr.App., 388 S.W.2d 187, rather than Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219, and Ross v. State, Tex.Cr.App., 406 S.W.2d 464, is controlling and that one of the prior convictions alleged for enhancement of his punishment was void because no definite punishment was assessed.

While we remain convinced of the correctness of our original holding, there is another reason why appellant’s contention relating to the prior conviction alleged for enhancement presents no ground for reversal of his conviction for possession of heroin.

This case was tried under the 1965 Code of Criminal Procedure on a plea of not guilty. The question of guilt or innocence of appellant was first submitted to the jury, as provided in Art. 37.07(2), Vernon’s Ann. C.C.P. On return of a verdict of guilty, the appellant did not request that the punishment be assessed by the jury but chose to have the trial judge do so.

The conviction was under Art. 725b, Sec. 2(a), Vernon’s Ann.P.C., under which the authorized punishment set out in Section 23 of that Article is confinement “for not less than two (2) years nor more than life”. The judge was therefore authorized to assess life imprisonment with or without the use of the prior convictions for enhancement purposes.

Appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Ex parte Earl Edwin AUSTIN.
    No. 39993.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1967.
    George W. Renaudin, Houston, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an original habeas corpus proceeding. Petitioner is an inmate of the Department of Corrections, and he attacks three concurrent sentences from Kleberg County on the grounds that on September 23, 1963, when he plead guilty in each of the cases, he was denied the effective assistance of counsel in that his court appointed counsel was not allowed the ten days to prepare for trial required by Article 494, Vernon’s Ann.C.C.P., in effect at the time of the entry of his pleas.

From the record before us it is made to appear petitioner was indigent and counsel was appointed on the same day that the pleas of guilty were entered. While no request was made for additional time, the petitioner and his court appointed counsel did not waive in writing the ten days required by Article 494, supra. This Court has held in Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, that the terms of Article 494, supra, are mandatory.

The writ of habeas corpus is granted, and petitioner is ordered released from the Department of Corrections and ordered to be delivered to the Sheriff of Kleberg County where he stands charged by indictments in causes 1689, 1690 and 1695 pending in the 105th Judicial District Court of Kleberg County.

It is so ordered.


author: BELCHER, Commissioner. WOODLEY, Judge. MORRISON, Judge.

text:
    Clyde WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 39675.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    On Rehearing Denied Oct. 12, 1966.
    Second Rehearing Denied Jan. 11, 1967.
    Louis S. Aselin, Houston, (Court appointed on appeal), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The offense is attempted burglary; the punishment, enhanced under Art. 63 P.C., life.

The indictment was returned July 9, 1965. Trial before a jury on a plea of not guilty resulted in a finding of guilty and judgment was rendered upon the jury’s verdict and the court’s finding that the defendant had been twice theretofore convicted of a felony.

Hon. Lee Duggar acted as trial counsel for the defendant.

On January 13, 1966, appellant was sentenced to a life term in the penitentiary. He gave notice of appeal and Hon. Louis S. Aselin of the Harris County Bar was appointed to represent him on appeal.

In his brief filed in this court, appellant’s counsel on appeal presents a number of points of error, among which are that he was denied due process because no statement of facts has been prepared for this appeal.

Appellant recognizes that the preparation of a record on his appeal is governed by Art. 40.09 Vernon’s Ann.Code of Criminal Procedure 1965, which was in effect at the time he gave notice of appeal.

There is no showing in the record that the court reporter was requested to prepare a transcript of his notes for including in the record, nor did appellant’s counsel file in the trial court a motion requesting that he be permitted to withdraw his notice of appeal and be granted a new trial by the trial court, and no brief was filed in the trial court setting forth any ground of error.

This court has authority under Section 13 of said Article 40.09 to review unassigned error.

In the absence of a record on appeal to support it, appellant’s claim that he was denied due process of law is overruled.

The judgment is affirmed.

Opinion approved by the Court.

OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

On the day appellant was sentenced he gave notice of appeal and the court appointed counsel to represent him on appeal.

The record before us has not been approved by the trial judge, as required by Art. 40.09(7), Vernon’s Ann.C.C.P. We are unable to ascertain from such record whether or not appellant has been denied a transcription of the reporter’s notes (statement of facts); or whether or not he has been denied the effective aid of counsel by the failure of his court appointed counsel to obtain such transcription, or advise and assist appellant in obtaining same in the manner provided in Art. 40.09(5) C.C.P.

It is not specifically shown in the record whether appellant was unable to pay or give security for a transcription of the reporter’s notes, and the record is silent as to whether an extension of time for filing such a transcription for inclusion in the record was requested.

Contrary to the procedure followed in this Court prior to Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, and the 1965 Code of Criminal Procedure, we are not bound to confine ourselves to the record sent up from the trial court in passing upon a federal claim such as the denial of a constitutional right.

This appears to be a case where a further hearing should be held in the trial court while the appeal is pending in order that appellant not be denied his constitutional right to the effective aid of counsel on appeal. See Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

We suspend the final disposition of appellant’s motion for rehearing for 90 days pending the receipt of a record on appeal, approved by the trial court, containing a transcript of the reporter’s notes or a finding of the trial court of facts showing that appellant waived or was not denied his right to such .transcript or to effective aid of counsel in regard thereto.

It is so ordered.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

MORRISON, Judge.

Pursuant to our opinion of October 12, 1966, we have now been furnished a complete transcript of the reporter’s notes covering appellant’s trial.

It would serve no purpose to detail the facts appearing therein other than to observe that a police officer apprehended appellant in the act of breaking into a store at 3:30 in the morning. He fired a warning shot after instructing appellant to “Hold it.” Appellant fell on the roof of the shed where he was standing and within a matter of seconds a second police officer discovered appellant hiding near the shed from which he had jumped or fallen. Near him were some burglar tools, and another was recovered from the roof of the shed.

Appellant and his witnesses testified that they were playing cards in the neighborhood of the store and that appellant left the game only seconds before the shot was fired. Appellant denied that he was attempting to break into the store and stated that the officers arrested him in the alley as he was on his way home. He admitted giving the officers a false name.

The prior convictions alleged for enhancement were stipulated and appellant admitted being the person so convicted.

We have now been satisfied that appellant has not been deprived of the effective assistance of counsel on appeal. We see no merit in appellant’s contention that his counsel in this case had prosecuted him in one of the cases alleged for enhancement. When such fact was made known to the Court, appellant personally indicated his desire to proceed with the counsel who was then representing him.

Finding no reversible error, appellant’s motion for rehearing is overruled.


author: ONION, Judge.

text:
    Ex parte Abraham KRONHAUS.
    No. 40013.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1967.

      Frank P. Hernandez, of Hernandez & Cazorla, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. John Allison and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order entered in the Criminal District Court No. 5 of Dallas County remanding appellant to custody for extradition to the State of Louisiana.

At the hearing the State, in addition to the Application for Writ of Habeas Corpus and the Writ, introduced the Executive Warrant of the Governor of Texas authorizing the arrest and return of the appellant to the State of Louisiana to answer a charge of Theft, violation Louisiana R.S. 14:67.

Appellant did not testify nor offer any evidence. Upon learning that the State would not offer any supporting papers, appellant, without offering such papers, stated his objections challenging the regularity of the Application for Requisition, Affidavit, Warrant and other supporting papers. These documents are not in the record before this Court, nor does it appear that they were introduced in the trial court.

The introduction of the Warrant of the Governor of Texas, which appears regular on its face, was sufficient to make a prima facie case authorizing appellant’s extradition. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579; Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146; Ex parte Malone, Tex.Cr.App., 378 S.W.2d 330; Ex parte Escarrega, Tex.Cr.App., 388 S.W.2d 192; Ex parte Cattes, Tex.Cr.App., 399 S.W.2d 543.

The State was not bound to introduce the demand or Requisition papers. Ex parte Hoover, supra; Ex parte Shirley, 164 Tex.Cr.R. 447, 299 S.W.2d 701; Ex parte Black, Tex.Cr.App., 384 S.W.2d 876. Once the Governor’s Warrant establishing a prima facie case authorizing extradition was placed in evidence, the burden was then upon appellant to overcome the prima facie proof of the existence of every fact which the Texas Governor was obliged to determine before issuing the extradition warrant. Ex parte Fant, Tex.Cr.App., 400 S.W.2d 332.

The Uniform Criminal Extradition Act, Article 51.13, Vernon’s Ann.C.C.P., provides in Section 3 thereof that the defendant or his attorney is entitled to duplicate copies of the papers supporting extradition described therein. A failure to furnish such papers upon request is reversible error. Ex parte Holmes, 397 S.W.2d 458; Ex parte Tucker, 168 Tex.Cr.R. 286, 324 S.W.2d 853. There is no showing that the appellant was denied such papers.

This Court has held that the accused opposing extradition may offer into evidence supporting papers accompanying the Warrant of the Governor of Texas and challenge their sufficiency in order to show that the warrant was not legally issued. Ex parte Tucker, supra; Ex parte Goodwin, Tex.Cr.App., 384 S.W.2d 874. He cannot complain about the regularity of the supporting papers which have not been offered. Ex parte Felker, 169 Tex.Cr.R. 607, 336 S.W.2d 161.

The appellant having failed to overcome the prima facie case made by the introduction of the Governor’s Warrant, the judgment is affirmed.


text:
    Ex parte Carlos Gonzalez JUAREZ.
    No. 40020.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1967.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 34th District Court of El Paso County remanding appellant to custody for extradition to the State of California.

The record, including an agreed statement of facts, reveals that at the hearing the State introduced into evidence the Executive Warrant of the Governor of Texas authorizing the arrest and return of the appellant to the State of California, and rested.

Appellant did not testify or offer any evidence, and no brief has been filed on his behalf.

If regular upon its face, the introduction of the Governor’s Warrant makes out a prima facie case authorizing extradition. Ex parte Williams, 169 Tex.Cr.R. 192, 333 S.W.2d 146; Ex parte Lindsey, Tex.Cr.App., 345 S.W.2d 532; Ex parte Browder, Tex.Cr.App., 373 S.W.2d 751; Ex parte Malone, Tex.Cr.App., 378 S.W.2d 330.

In the case at bar the Governor’s Warrant reveals that the appellant is charged in the State of California with the crime of “non-support.” While such warrant recites that the Governor of the State of California had made his demand for the extradition of the appellant and that said demand was accompanied by copy of the complaint, warrant and supporting papers “duly certified as authentic” by the Governor of California, such copy of complaint, warrant or other supporting documents was not offered into evidence. There is no showing of what or who the appellant is charged with having failed to support, and no showing as to the laws of the State of California.

There is no such offense in Texas as “non-support”. It therefore follows that it is not shown that appellant is substantially charged in the demanding state with a crime under the laws of that state as is required by Section 3 of Article 51.13, Vernon’s Ann.C.C.P.; Ex parte Burns, 167 Tex.Cr.R. 533, 322 S.W.2d 289; Ex parte Brunner, Tex.Cr.App., 396 S.W.2d 125.

The judgment remanding appellant to custody is reversed and remanded.


author: WOODLEY, Judge. DICE, Judge.

text:
    Ernesto LEOS, Appellant, v. The STATE of Texas, Appellee.
    No. 39829.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Rehearing Denied Jan. 18, 1967.

      Albert Armendariz, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is assault with intent to murder with malice; the punishment, 10 years.

The case was tried and notice of appeal was given prior to January 1, 1966.

The statement of facts reflects that appellant Ernesto Leos, Frank Garcia, Richard Perez and Sammie Soreano were students at the Mountain View School for Boys where Howard Golden was an attendant.

Golden, the injured party, testified that at about 2:45 P.M. on May 10, 1965, he was at his desk in “Dorm 12” where he had under his supervision about 24 boys, about half of whom were Spanish boys, including the four above named.

Golden testified that when the boys got ready to go outside he had them line up and just as they got in line Frank Garcia said “Let’s get him now,” and struck him with a chair.

About the same time, Sammie Soreano stabbed him with a screwdriver that , had been sharpened and appellant was cutting at him with a wood chisel, and as he dove toward the front door, appellant had him by the shirt and said: “I’ll kill you, you son-of-a-bitch,” and threw a long wood chisel which went down his side “just like a bullet * *

The four boys were soon found standing on the football field. Sammie Soreano had a screwdriver in his hand which “had been filed down into a sharp point.” Richard Perez had a wood chisel in his hand; another was found on the ground outside the dormitory door; another in the dormitory and a fourth on the route between the dormitory and the football field where appellant said he took off his overalls and dropped it.

The wound found on Mr. Golden was described as a stab wound in the back near the heart, which pushed inward. It appeared to have been made with a blunt and narrow instrument, and was the type of wound that could have been inflicted by an instrument such as the sharpened screwdriver introduced in evidence as that found in the hand of Sammie Soreano. Such type of wound could have resulted in death.

Richard Perez, called as a witness for the defense, testified on cross-examination:

“Q. Now you all planned to cut up Mr. Golden, that’s what you told me you planned to do, you planned to cut him up and you told me you were scared he might get killed with that screwdriver, didn’t you?
“A. Yes.
“Q. Didn’t you tell me that?
“A. Yes.
“Q. And this is the screwdriver that Sammie Soreano had, wasn’t it?
“A. Yes.
“Q. Look at it and see.
“A. Yes, this is the screwdriver here.
“Q. Where did that screwdriver get that blade on it, you know, don’t you ?
“A. Yes, he told me he sharpened it.
“Q. Sharpened it up to stick into somebody, didn’t he?
“A. Yes.
******
“Q. You started planning to do this on Saturday and this happened on Monday, didn’t it?
“A. Yes sir.
“Q. And you started planning to cut him up and to stab him the Saturday before it happened, isn’t that right?
“A. Yes sir.
“Q. And so you four boys had about three or four days to think about this thing, didn’t you?
“A. Yes sir.
“Q. And you still went through with it, didn’t you?
“A. Yes.
“Q. You threw one of these chisels at him, didn’t you?
“A. Yes.
“Q. And all you boys had stolen these chisels out of the wood shop for that purpose, to cut him up with, didn’t you?
“A. Yes sir.”
******

On re-cross examination he testified:

“Q. You knew that if the screwdriver, if it was stuck in him it could kill him, didn’t you?
“A. Yes sir.”

Appellant testified on cross-examination:

“Q. Well, let me ask you this, you all planned, you, and Sammie Soreano and Frank Garcia and Richard Perez, planned on cutting Mr. Golden up, didn’t you? Now just tell the jury?
“A. Yeah.
******
“Q. * * * you planned with Sammie Soreano, and with Perez and with Garcia to jump Mr. Golden and cut him up?
“A. You want me to tell you what we had planned?
“Q. Yes, that’s what I want you to tell me.
“A. Okay. That’s what you should ask me for. What we had planned, he— Frank said he was gonna hit him with the chair and Sammie said he was going to cut him up a little, so I didn’t think he was going to stab or nothing like that, and then we decided to get the chisels so we could be in it too, so they could take us out, that’s what we had planned.”

We find the evidence sufficient to sustain the jury’s verdict.

Appellant’s first complaint relates to “the reference to the race of the accused and the other boys who allegedly attacked Mr. Golden” in the following direct examination of the state’s witness, Howard Golden.

“Q. Now, with reference to race, what type or what race are these boys that I have just named ?
“A. Spanish boys, all four of them.
“Q. Now in your Company there, did you have — were they all Spanish boys?
“A. No sir, we have — at the time we had only white boys and Spanish boys.
"Q. About what percentage of each were they?
“A. About half, I imagine.
“Q. About half and half?
“A. Yes sir.
“Q. Now you mentioned to the jury that you had an unusual experience at about 2:45 P.M. on that date?
“A. Yes sir.
“Q. What was that unusual experience ?
“A. I was attacked by four Spanish boys.
“Q. Who were the four Spanish boys that attacked you?
“A. Frank Garcia, Ernesto Leos, Richard Perez, and—
“Q. Was it Sammie Soreano?
“A. Sammie Soreano, yes.”

The questions were asked and answered without objection and reflect no prejudice or attempted prejudice by reason of race or national origin.

The remaining ground upon which reversal is sought is predicated upon the fact that appellant was in the State School for Boys at Gatesville as a delinquent child pursuant to the order of a Juvenile Court on May 10, 1965, when the offense was committed, and was confined in the “lock-up” or “jail” at the school until June 9, 1965 when it was decided that “higher state authorities should also be allowed to exact punishment for that crime.”

The record reflects that appellant was 17 years of age at the time the offense was committed, and was subject to punishment therefor as an adult.

Appellant’s claim of double jeopardy is without merit. Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

In his motion for rehearing, error is urged by appellant, for the first time, to the court’s action in permitting the state’s witness, Jimmy Christian, to relate certain statements made by appellant after he and his companions were apprehended on the football field.

Over appellant’s objection that he was under arrest when the statements were made, the witness was permitted to testify that appellant told him where to find one of the chisels used in the assault and he also said “that they wanted to kill Mr. Golden and go to the penitentiary.”

We perceive no error in the admission of the testimony.

Appellant’s statement which led to the recovery of one of the weapons used in the crime was admissible as an oral confession, under Art. 727, Vernon’s Ann.C.C.P., which was in force and effect at the time of the trial. Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946.

The statement of appellant that he and his companions wanted to kill Golden was also admissible as a part of the oral confession. Smith v. State, 166 Tex.Cr.R. 614, 317 S.W.2d 539; Riley v. State, 168 Tex.Cr.R. 41, 328 S.W.2d 306.

Art. 38.22 of the 1965 Code of Criminal Procedure, governing confessions of an accused, has no application to the admission of appellant’s oral confession in evidence at a trial held prior to January 1,1966, the effective date of the present code.

The record does not reflect a denial of due process of law to appellant, under the United States Constitution, in admitting the oral confession in evidence.

We have again reviewed the record in the light of appellant’s contention that the reference to him and his companions, in the testimony, as “Spanish boys” deprived him of a fair and impartial trial and due process of law, and remain convinced that no reversible error is presented. As pointed out in our original opinion, there were no objections to the questions and answers which referred to appellant and his companions as being of the Spanish race. The voice inflection or manner of speech referred to by counsel is of course not reflected in the writing which constitutes the record on appeal. There is no showing of any bad faith on the part of either state’s counsel or the witness in referring to appellant’s race or national origin.

Remaining convinced that a proper disposition was made of the case on original submission, the motion is overruled.


author: DENTON, Chief Justice.

text:
    B. G. HOOD, Appellant, v. The FIRST NATIONAL BANK OF PANHANDLE, Appellee.
    No. 7652.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.
    Rehearing Denied Jan. 16, 1967.

      Clayton, Kolander, Moser & Templeton, Amarillo, Cleo G. Clayton, Jr., Amarillo, of counsel, for appellant.
    Marshall Sherwood, Panhandle, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Max R. Sherman, Amarillo, of counsel, for appellee.
   DENTON, Chief Justice.

This is a suit for the balance due on a promissory note, interest and attorneys’ fees brought by appellee, First National Bank of Panhandle against appellant B. G. Hood and A. J. Atkins. The trial was before the court without a jury. The court entered judgment for the bank against both defendants jointly and severally for the un-contradicted balance due, interest and stipulated attorneys’ fees. Only Hood has appealed.

Atkins and Hood entered into an agreement for Atkins to purchase a service station from Hood, but in order to complete the purchase it was necessary for Atkins to secure a loan. Upon application, the ap-pellee bank informed Atkins it could not make the loan to him. Later Atkins advised the bank Hood had agreed to endorse the note. The bank then agreed to make the loan and on October 11, 1963 a $6,180.00 note was executed by Atkins as maker and Hood as endorser. $6,172.01 of the loan was paid to Hood and his father-in-law as the purchase price. Simultaneously with the execution of the note Atkins and his wife executed a deed of trust on two Panhandle town lots to secure payment of the note. After the note became delinquent, written demand was made upon both Atkins and Hood. There is no dispute concerning the amount of unpaid principal, interest or reasonable attorneys’ fees in the event judgment is obtained. It is also undisputed that both the bank officer who handled the transaction and Hood believed the deed of trust covered a duplex located on two lots owned by Atkins, when in fact the deed of trust covered Atkins’ homestead and not the duplex. The lots upon which the duplex was located were adjacent to the lots upon which Atkins resided. This mistake was discovered after the note became delinquent.

Appellant seeks to be discharged from liability on the grounds his endorsement was conditional upon the note being secured by a deed of trust on the duplex property; and that such condition was not met as a result of a mutual mistake in the property description. He further contends the bank represented to Hood that a deed of trust on the duplex had been obtained prior to Hood’s endorsement. There are no allegations of fraud or negligence on the part of the bank.

Upon appellant’s request the trial court filed findings of fact and conclusions of law. The material findings in effect are: The note was endorsed by Hood without condition or qualification at the request of Atkins; Hood acknowledged to the bank he agreed to endorse the note because he wanted to sell the service station to Atkins; that the bank officer authorized the loan upon Hood’s endorsement and not upon any security; and the court concluded none of appellant’s defenses were supported by a preponderance of the evidence. Although appellant leveled objections to the court’s findings and conclusions, he requested no additional findings. We are bound by the trial court’s findings of facts and conclusions supported by the evidence. Bavousett v. Bradshaw (Tex.Civ.App.) 332 S.W.2d 155 (Ref.N.R.E.). Rule 396, Texas Rules of Civil Procedure. It is settled a trial court’s findings of fact will be upheld on appeal unless manifestly erroneous. Keeton v. Gillam Soap Works (Tex.Civ.App.) 215 S.W.2d 675 (Ref.N.R.E.). We think there was sufficient evidence of probative force to support the trial court’s findings of fact and conclusions of law.

In support of its position appellant cites and relies on Rattan v. Dicker (Tex.Civ.App.) 373 S.W.2d 306 and Reynolds Mortgage Co. v. Garrett (Tex.Civ.App.) 23 S.W.2d 835 (Dismissed) along with others. These cases are authority for the exception to the general rule that parole testimony is not admissible to show a variance in a written contract. These cases support the exception that in case of mutual mistake, parole evidence is admissible for the purposes of granting equitable relief by way of reformation. These cases and others relied on are not applicable here. In the case at bar reformation is not raised by the pleadings. Appellant does not seek reformation of the deed of trust but simply contends the mistake in the description relieves him of liability on the unambiguous promissory note he unconditionally endorsed. Both the Rattan and Reynolds Mortgage cases also hold the remedy of reformation must be properly raised by pleadings and if not done the remedy is not available. That question is not before us.

The note in question contains no language which would render Hood’s endorsement conditional. Appellant’s allegations and testimony to the effect he endorsed the note only upon the condition the note was to be secured by a deed of trust on the duplex property is an attempt on his part to vary the terms of an unambiguous written note. This unconditional endorsement cannot be contradicted or altered by parole evidence under the facts and circumstances of this case. Kane v. Union State Bank (Tex.Civ.App.) 384 S.W.2d 358 (Ref.N.R.E.). Henslee v. First National Bank of Whitewright (Tex.Civ.App.) 314 S.W.2d 881. Under this well settled rule the mistake in the description in the deed of trust or the contention the endorsement was executed only on the condition proper security was obtained do not present a valid defense on the part of appellant.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Ray Vernon ABEL, Appellant, v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellee.
    No. 16780.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 16, 1966.
    Rehearing Denied Jan. 13, 1967.

      John W. Herrick and Norman W. Darwin, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and John McBryde, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Appeal from summary judgment for defendant Occidental Life Insurance Company by plaintiff Ray Vernon Abel. Effect of judgment was to foreclose liability under insurance policies on the ground that the heart condition giving rise to the sickness, hospitalization, and expense incident to operative procedure existed prior to effective date of the policies.

Judgment affirmed.

Reference is made to S3 A.L.R.2d 686, et seq., Annotation, “When sickness deemed to have inception within clause of health or hospital policy covering sickness originating while policy is in force”. In the introduction it is noted that the annotation is concerned with the cases litigating the problem of when a particular sickness, illness, ailment, or disease (the words being used interchangeably) had its inception.

Reference is also made to 45 C.J.S. Insurance § 893, pp. 971-972, Health Insurance, relative to inception of disease or disability. Therein it is stated: “Policy provisions precluding recovery for disease or disability originating before a prescribed time have been held to be valid, and such a condition is of the essence of the contract and its fulfillment is a prerequisite to recovery, as where liability is limited to cases where illness begins after issuance of the policy, or at or after a specified period from the date of the policy. Such clauses have been strictly construed against the insurance company, and an illness or disability has been deemed to have its inception when the disease first becomes manifest or active, and not at the earlier time when the medical cause of the disease may have begun or had its origin. Accordingly, such a policy covers losses resulting from illness which first manifests itself after the prescribed period notwithstanding the medical cause thereof antedated such period. Where the policy insures against sickness contracted during its term, insured has been allowed recovery where his disease was contracted before such time but did not cause disability until some time during the term of the policy.”

Texas cases are cited in annotations of both the foregoing authorities along with out of state cases upon holdings in which plaintiff relies.

There is no question but that the physical condition because of which plaintiff’s claim was arisen lay in a pre-existent heart condition. That condition was, by the time for hearing of the case on defendant company’s motion for summary judgment, diagnosed, explored, operated and confirmed as having been an opening or “hole” between two chambers of Mrs. Abel’s heart, existent since birth. Plaintiff shows that the only known condition to his wife was her “heart murmur”. The uncontradicted evidence, however, is to the effect that even without exploration the cause of such murmur would have been readily diagnosed as what it was determined to have been upon exploration, and what it was found to be pursuant to operative repair.

Defendant insurance company contends that Texas cases establish that under “stare decises” the pre-existent “physical condition” necessitating the operation, indisputably established, forecloses plaintiff’s right to recover. American Nat. Ins. Co. v. Roberts, 146 S.W. 326 (Texarkana, Tex.Civ.App., 1912, no writ); Hutcheson v. Reserve Life Ins. Co., 237 S.W.2d 723 (Fort Worth, Tex.Civ.App., 1951, no writ); and American Standard Life Insurance Co. v. Redford, 337 S.W.2d 230 (Austin, Tex.Civ.App., 1960, writ ref. n. r. e.). The company concedes that Old National Insurance Co. v. Johnson, 312 S.W.2d 715 (Austin, Tex.Civ.App., 1958, no writ) seems to hold to the contrary. Our examination of the opinion does not bear out the concession for the policy provision there in question covered “sickness as may begin” more than ten days after the date the policy was accepted, without reference made to the cause thereof.

However, says the defendant company, even if the court deems the more liberal rule proper of application the undisputed facts in the case make proper the lower court’s judgment in denial of liability. An accurate and complete statement of the more liberal rule is: “Thus, it has generally been held in construing policies of this type that the origin of a sickness or disease is deemed to be the time when it first becomes manifest or active, or when there is a distinct symptom or condition from which one learned in medicine can diagnose the disease.” Dowdall v. Commercial Travelers Mutual Acc. Ass’n, 344 Mass. 71, 181 N.E.2d 594 (1962). See also the Annotations in 53 A.L.R.2d 686, and cases annotated under 45 C.J.S. Insurance § 893, pp. 971-972.

From the evidence in the depositions before the court on hearing on the summary judgment, it is undisputed that one or more of the following was established: (1) the condition was manifest before the policy effective date, (2) the condition was active before the policy effective date, (3) there was a distinct symptom from which one learned in medicine could diagnose the defect in the heart before the policy effective date, and (4) there was a distinct condition from which one learned in medicine could diagnose the defect in the heart before the policy effective date.

Whether or not the more liberal rule would be that which would control disposition of the case the trial court’s entry of summary judgment for the defendant was undoubtedly proper.

Judgment is affirmed.


author: BATEMAN, Justice.

text:
    J. W. HERFURTH et ux., Appellants, v. The CITY OF DALLAS, Appellee.
    No. 16826.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1966.
    Rehearing Denied Dec. 30, 1966.

      Roland Boyd of Boyd, Veigel & Gay, McKinney, for appellants.
    N. Alex Bickley, City Atty., Lee E. Holt, Asst. City Atty., Dallas, for appellee.
   BATEMAN, Justice.

Exercising its right of eminent domain, the City of Dallas took 72.33 acres of land owned by appellants J. W. Herfurth and wife to become a part of a large water reservoir. The land taken was part of a tract of 127.12 acres. The jury found the value of the part taken, considered as severed land, to be $29,655.30, and that the market value of the remaining 54.79 acres, not taken, was not decreased as a result of the condemnation. As the damages found in answer to Special Issue No. 1 were less than previously awarded by the commissioners, and which had been withdrawn by appellants pursuant to Vernon’s Ann. Civ.St., Art. 3268, the court awarded to appellee the 72.33 acres and judgment against appellants for $2,893.20, the excess of the commissioners’ award over the verdict.

By their first three points of error on appeal the appellants complain of the refusal by the court to permit them to perfect a bill of exceptions to the exclusion by the court of certain testimony of the appellant J. W. Herfurth, thus preventing them from showing in the record what the testimony would have been if admitted. Whatever error there may have been in this respect, however, was rendered harmless in that the record was subsequently made to show beyond question what the witness would have answered if permitted. Therefore, no harm resulted from the ruling complained of, Rule 434, Vernon’s Texas Rules of Civil Procedure, and appellants’ first three points of error are overruled.

By their fourth point of error appellants complain of the refusal of the trial court to permit the witness Herfurth to testify as to what price per acre Henry Wade paid for his land. This testimony was excluded on appellee’s objection. Appellants made no effort to show comparability, but took the position that appellee’s own witness, George Becker, Jr., had already established it. This was based on the events described in the next paragraph.

Becker, appellee’s only value witness, testified that in his opinion the value of the land taken was $23,850, which is approximately $330 per acre, and gave as a comparable sale a tract of 23.4 acres which a Mr. Burch had sold to a Mr. McLain at $320 an acre. Both tracts, he said, had about the same proportion of lowland subject to overflow. On cross-examination he was requested by appellants’ counsel to outline with a colored pencil on an aerial map the perimeter of the “Burch to McLain tract.” When he had drawn the line he was asked whether he was sure of the north boundary line he had drawn, to which he replied, “Not from an engineering point of view. It could be a shorter tract. There are 23.4 acres in it. * * *.” He offered to change the line he had drawn, but appellants’ counsel said, “No, sir, don’t change it unless it needs to be changed.” And Becker replied, “I am not sure, sir.” Counsel then reminded him that the witness was the one who was testifying, whereupon Becker stated, “That is the tract of land.” A few moments later counsel asked him if he hadn’t included in his drawing Mr. Henry Wade’s land also, to which he replied, “No, sir, Mr. Henry Wade’s land is on the other land up here. * * * ” He then testified also that he knew Henry Wade had bought a tract from Roddy Groves the early part of that year, but that he was not acquainted with the land, that he had not been to see it, but knew exactly where it was. When asked whether he knew this land was not in a part of the outline he had drawn on the aerial map, he said, “Sir, I may not have drawn it right. It is an error in judgment but not in intent if the line is not properly drawn. I have a copy of the deed, sir, that has the description in it that would permit a duplication of the tract by its legal description.”

Subsequently the appellant J. W. Herfurth testified that the colored perimeter line drawn on the aerial map by Becker encompassed “the Burch to McLain property” and also the Wade property. When he was asked what Mr. Wade paid per acre for that land, appellee objected on the ground that no predicate had been laid showing the comparability of the Wade land to the Her-furth property, that if Mr. Herfurth was willing to testify that the Wade property was comparable to his property he would be entitled to testify as to its value, but that in the absence of testimony as to comparability the question was improper and highly prejudicial. This objection was sustained.

Appellants argue that the testimony was admissible to impeach Becker’s testimony on values in that “the jury were not permitted to know that he had testified falsely about the sale price.” Since the only sale Becker had testified about was the Burch to McLain sale, the sale price he is accused of testifying falsely about must have been the $320 per acre he had said Mc-Lain paid Burch for the land. He was never asked what price Wade had paid and was asked nothing concerning similarity between the Wade land and the Burch to McLain land, or between the Wade land and appellants’ land. There can be no error in excluding proffered evidence, regardless of the purpose for which it is offered, unless it is admissible; and evidence which does not tend to prove or disprove some issue in the case, and is therefore immaterial and irrelevant, is inadmissible. Dallas Railway & Terminal Co. v. Oehler, 156 Tex. 488, 296 S.W.2d 757.

We know of no basis or theory on which this testimony could have been admissible. Herfurth’s testimony could not have even tended to disprove Becker’s testimony as to the price Burch received for his land; neither would it contradict his testimony as to the similarity between that land and the land taken in this case. A witness may not be contradicted upon a collateral or immaterial matter, McCormick & Ray, TEXAS LAW OF EVIDENCE, Vol. 1, § 683, p. 526; Gulf, C. & S. F. Ry. Co. v. Coon, 69 Tex. 730, 7 S.W. 492, 497, but here we see no contradiction at all.

Appellants do not contend that the evidence was admissible as bearing on the value of any part of their land, but say it is admissible to impeach Becker. Evidence of what Wade had paid for his land would not be evidence of the value of either appellants’ land or the Burch-McLain land unless some similarity, other than its contiguity, was shown. No effort was made to do so. We do not agree with appellants that Becker himself established the comparability by including the Wade land within the colored line on the map. We think it is clear from Becker’s testimony, quoted above, that if the Wade land was so included it was inadvertent and that he did not intend thereby to imply that the Wade land, though contiguous to the McLain land, was of comparable quality or of like value. Appellee’s objection was properly sustained. Cravens v. City of Amarillo, Tex.Civ.App., 309 S.W.2d 903, 908, wr. dism. Appellants’ fourth point is overruled.

Appellants’ fifth, sixth and seventh points of error complain that the jury’s answer to Special Issue No. 1, finding the market value of the land taken, was against the great weight and preponderance of the evidence, and that the amount found was too small and inadequate; and by their eighth and ninth points of error they make the same criticism of the answer to Special Issue No. 2, wherein the jury found that the market value of the remaining land had not been decreased by the taking. The nature of these five points of error has necessitated our careful study of the entire record of testimony. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We do not think a recitation or summary of the evidence would add anything to the jurisprudence of the State, and we therefore merely say that the jury, in response to Special Issue No. 1, found a value within the range of the testimony of the witnesses, that there was ample evidence to support both findings, and that the verdict is not so “grossly inadequate as to indicate the operation of some improper influence on the jury in its determination of the amount.” Medrano v. City of El Paso, Tex.Civ.App., 231 S.W.2d 514, 518. The answer to Special Issue No. 2 was exactly in line with the testimony of appellants’ witness Homer Adams, as well as with that of appellee’s witness George Becker, Jr. Appellants have failed to carry the burden of showing that either finding was against the great weight and preponderance of the evidence, or that the amount awarded was so grossly inadequate as to justify reversal. Aue v. State, Tex.Civ.App., 77 S.W.2d 606, 608, wr. ref.

Accordingly, appellants’ eighth and ninth points are overruled.

As we find no error justifying a reversal of the judgment, it is

Affirmed.