author: STEAKLEY, Justice.

text:
    Santiago M. LEAL et ux., Petitioners, v. C. C. PITTS SAND AND GRAVEL, INC., et al., Respondents.
    No. B-237.
    Supreme Court of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 22, 1967.
    Raul Villarreal and Lieck & Lieck, Charles J. Lieck, Sr., and Eugene H. Lieck, San Antonio, for petitioners.
    Beckmann, Stanard, Wood & Vance, John H. Wood, Jr. and Hugh P. Shovlin, San Antonio, for respondents.
   STEAKLEY, Justice.

Petitioners are the parents of a child born alive who died two days later. They alleged that the death resulted from prenatal injuries suffered when the mother was involved in a collision between Petitioners’ automobile and a truck allegedly-owned and operated by Respondent. The child was alleged to he viable since the mother was advanced to six or seven months pregnancy at the time. Petitioners sued Respondent in a negligence action asserting a cause of action for the wrongful death of the child under Articles 4671-4678, Revised Civil Statutes of Texas, 1925, as amended; Petitioners also alleged a cause of action for injuries to the mother and damages to the automobile. The action for wrongful death was severed by the trial court and Respondent’s exceptions asserting that such did not state a cause of action were sustained. The dismissal of this cause was affirmed by the Court of Civil Appeals [413 S.W.2d 825] upon authority of Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513 (1935). We granted writ of error to re-examine the question thus presented.

A right of action exists under the Wrongful Death Statute only where the injured party could have maintained an action for damages had death not ensued. Art. 4672; Jordan supra. So the question is whether this viable infant born alive would have had a cause of action against Respondents had she survived. We hold in the affirmative and so reverse the judgments below and remand the cause.

This Court in Jordan upheld the refusal of the trial court to render judgment upon appropriate jury findings for the reason that “ * * * the law gives to parents no cause of action for the loss of a child which dies as a proximate result of injuries while it is still quick in the womb of its mother, even though such injuries be inflicted by the negligence of the defendant.” The decision, particularly with respect to the absence of duty to the unborn child, was predicated in large measure upon the concept that life begins only after a child has been born and its independent existence established. Respiration and independent circulation — “not to have breathed is not to have lived” — as conditions to an independent life, and to becoming a human being, were emphasized. Prior thereto, however, this Court in Nelson v. Galveston H. & S. Ry. Co., 78 Tex. 621, 14 S.W. 1021 (1890), recognized the right of action of a child under the Wrongful Death Statute for the death of his father which occurred approximately six and one-half months be-for the birth of the child. Cf. also Brooke v. Clark, 57 Tex. 105 (1882), in which this Court appeared to recognize without question a right of action for damages sustained by a child after it had been taken from its mother but before severance of the umbilical cord, based on the negligence of one acting as an accoucheur at birth. The injury occurred at a time when the child was still in communication with and dependent on its mother for' respiration and nourishment. The decision in Nelson was distinguished in Jordan as dealing with property rights created by Statute (Article 4675) requiring only that the child be born alive — become a surviving child — to come into his estate.

In Jordan this Court said: “We have found no decision * * * holding that damages for prenatal injury may be recovered either by the injured child if it is born and lives or by its beneficiaries in the event of its death from such injury.” Likewise it was said in Lewis v. Steves Sash & Door Co., 177 S.W.2d 350 (Tex.Civ.App. 1943 writ ref’d), which represents the last review of the question by this Court, that “The disposition of the case [Jordan] accords with the overwhelming weight of authority.” The contrary is true today. As expressed by one legal writer: “Seldom in the law has there been such an overwhelming trend in such a relatively short period of time as there has been in the trend towards allowing recovery for prenatal injuries to a viable infant.” And by another: “A good many years of this rather devastating criticism finally had its effect. Beginning with a decision in the District of Columbia in 1946, a series of more than thirty cases, many of them expressly overruling prior holdings, have brought about the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts * * *. So rapid has been the overturn that at the time of publication nothing remains of the older law except decisions, not yet overruled, in Alabama, Rhode Island, and Texas.” Our research indicates that since this counter trend became evident, no court has denied a right of action for prenatal injuries to a viable infant born alive where the problem has been given re-examination.

This impressive contemporary trend is recognized in the three opinions of the intermediate court in this case. Indeed, there can be little originality of reasoning or expression in the light of the exhaustive review of the problem in these opinions, together with that to be found in the cases therein cited and in the substantial literature on the subject. The majority of the Court of Civil Appeals would have re-examined the question had the court not felt bound by the prior decision of this court in Jordan. The dissenting opinion of Justice Cadena comprehensively presents the case for recognition of a right of action for prenatal injuries under the facts here presented, and we are in agreement with this opinion. The decision in Jordan is overruled. Chief Justice Barrow points out in the majority opinion below, with supporting citations, that some authorities do not recognize a cause of action for prenatal injuries unless the fetus is viable at the time of injury, and that other authorities do not do so unless the child is born alive. These questions are not before us and are reserved.

The judgments below are reversed, and this cause is remanded to the trial court for further proceedings in accordance with this opinion.

      . Article 4671: “ * ⅝ * 1. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskilfulness, or default of another person, association of persons, joint stock company, corporation or trustee or receiver of any person, corporation, joint stock company, or association of persons, his, its or their agents or servants, such persons, association of persons, joint stock company, corporation, trustee or receiver shall be liable in damages for the injuries causing such death. ⅜ * * ”

      Article 4672: “The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”
      Article 4675: “Actions for damage arising from death shall be for the sole and exclusive benefit of and may be brought by the surviving husband, wife, children, and parents of the person whose death has been caused or by either of them for the benefit of all. * * * ”

      . Keeton, Creative Continuity in the Law of Torts, 75 Harv.L.Rev. 463, 484-85 (1962).

      . Prosser, Law of Torts, (3rd Ed. 1964) pp. 355-56; Rhode Island has since overruled its prior decisions, Sylvia v. Gobeille, R.I., 220 A.2d 222 (1966).

      . See also 2 Harper & James, Torts, § 18.3 (1956); Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965); Stewart, The Case of the Prenatal Injury, 15 Fla. L.Rev. 527 (1963); Del Tufo, Recovery for Prenatal Torts; Actions for Wrongful Death, 15 Rutgers L.Rev. 61 (1960); Morris, Injuries to Infants En Ventre Sa Mere, 58 Cent.L.J. 143 (1904); Kerr, Action by Unborn Infant, 61 Cent.L.J. 364 (1905); Prey, Injuries to Infants En Ventre Sa Mere, 12 St. Louis L.Rev. 85 (1927); White, The. Right of Recovery for Prenatal Injuries, 12 La.L.Rev. 383 (1952); 10 A.L.R.2d 1051-1072; 27 A.L.R.2d 1256-1259.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    AMERICAN-AMICABLE LIFE INSURANCE COMPANY, Petitioner, v. Oscar W. LAWSON, Respondent.
    No. B-52.
    Supreme Court of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 15, 1967.
    Jones, Boyd, Westbrook & Lovelace, O. F. Jones, Jr., Waco, for petitioner.
    Cox, Smith & Smith, Joe Smyer and J. Burleson Smith, San Antonio, for respondent.
   GRIFFIN, Justice.

This is a suit by Oscar W. Lawson, respondent, against American-Amicable Life Insurance Company, petitioner, for recovery of double indemnity benefits alleged to be due under a “binding” receipt for insurance. Due to the prior death of the insured, no insurance policy was issued, and the Respondent Lawson must recover, if at all, upon the written receipt and application for insurance.

When the case came on for trial both parties filed motions for summary judgment, and the trial court, after a hearing, denied the motion of the insurance company and granted summary judgment to Lawson. That judgment has been affirmed by the Court of Civil Appeals. 409 S.W.2d 462.

We granted a writ of error on the insurance company’s point that it had fully discharged its liability to Plaintiff Lawson under the terms of the insurance contract. We reverse the judgments of both courts below and render judgment that Lawson recover nothing.

The facts are undisputed.

On July 9, 1964, deceased Richard James Lawson, through a duly authorized agent of the insurance company, signed an application for the issuance of a life insurance policy on his life in the principal amount of $25,000.00 and requested double indemnity in a like amount, with Oscar W. Lawson as beneficiary. On the signing of the application Richard Lawson paid to the agent the sum of $26.50, the amount of monthly premium due on the plan of life insurance selected containing the desired double indemnity feature. Richard Lawson received from the agent the premium receipt hereinafter discussed. The application was forwarded to the home office of the insurance company for processing, and on September 8, 1964, a duly authorized officer of the company approved the application for the insurance on the plan applied for and so stamped the approval on the application. On September 6, 1964, Richard Lawson died as the result of drowning. The first knowledge the company had of his death was on receipt of notice of death of Richard Lawson September 9, 1964. No policy of insurance was ever written. The beneficiary, Oscar W. Lawson, made claim for the amount of $25,000.00 life insurance benefits and $25,000.00 double indemnity benefits. After investigation and conferences with Oscar W. Lawson and his attorneys, the insurance company admitted liability for the $25,-000.00 life benefits and paid the amount to Oscar W. Lawson. The parties agreed that such payment was without prejudice to the claims or defenses either party might have had for the payment of double indemnity. The insurance company refused to pay the double indemnity liability on the ground that it was not liable for same under the insurance contract set out in the receipt. Oscar W. Lawson accepted the $25,000.00 paid and filed this suit for the additional $25,000.00 he claimed was due him as double indemnity.

Neither party has cited a case in point on our facts, and each claims it is a case of first impression in this State on the law points involved. Neither we nor the Court of Civil Appeals has been able to find a case in point.

The application for insurance filed by Richard Lawson contained the following provision, among others: “I declare that I have paid the soliciting agent under Receipt No. 66938 cash $26.50 representing the first premium as herein determined, and that I hold his receipt for the same on the receipt form detached from this application. I agree to the terms of said receipt as well as the agreement set forth on the reverse side thereof(Emphasis added.) The receipt which was detached from the application read as follows:

“No. 66938
RECEIPT FOR FIRST PREMIUM AMICABLE LIFE INSURANCE COMPANY WACO, TEXAS
Received from Richard James Lawson at Killeen, Texas, cash $26.50, check $-, being the full initial premium (not less than one monthly premium) in accordance with application for insurance coverage of even date (this receipt and the application bearing the same identifying number), subject to the agreement of the applicant to all conditions precedent stipulated at any point in the agreement set forth on the reverse side hereof as to the effective date of the insurance coverage. Dated this 29th day of July, 1964.
(Signed) Bob Bernard, Agent.
“In connection with the receipt on the reverse side hereof it is agreed by the applicant that: (1) the policy for which application is made shall be effective from the date of the medical examination, or, if no such examination is required, from the date of this application, subject to payment in full of the initial premium (not less than one monthly premium), subject to the proposed insured person being alive and in good health on such pertinent date, subject to said application being accepted as evidenced by affirmative and active approval by the Company at its Home Office on the basis of the Company’s standard published rates for the exact form of policy and amount of coverage, and subject to the agent delivering the receipt set forth on the reverse side hereof; (2) no agent can make contracts or waive any rights without written consent from the proper executive officer at the Home Office of the Company; (3) no insurance coverage shall be effective if any check given for such premium is not paid on presentation; (4) if written notice of approval is not given within 60 days after the date of said application, disapproval or rejection shall conclusively and automatically occur and exist as of the date of said application; (5) no temporary or interim insurance coverage shall exist by implication, but shall exist only in accordance with the express terms of this agreement; (6) if any policy differing in amount, premium or form from that described in this application, or if any policy with any endorsement or rider attached is offered and accepted, such acceptance shall ratify any variance with the policy requested in said application, but such policy shall not become effective until actually delivered and accepted in writing during the good -health and lifetime of the proposed insured person; (7) if' any policy issued contains the Automatic Premium Loan Provision, I hereby request the Company to take such action as is required in applying such provision, all in accordance with the terms of the policy contract; and (8) the amount of the insurance becoming effective under the terms hereof shall in no event exceed $25,000.00 less the amount of all other insurance in force with the company.”

Respondent claims, and the Court of Civil Appeals agreed, that part (8) of the receipt when taken in connection with (1) thereof and the application for insurance, is ambiguous and therefore should be construed against the insurance company which chose the language of the instrument so as to permit recovery by Respondent Oscar W. Lawson. It is claimed that (8) is a limitation only on the liability of the insurance company for the life insurance and does not limit the double indemnity liability; that since the application under heading 2 provides that the plan of life insurance is to be under “Executive Preferred” and there is an additional line inquiring if “Double Indemnity” is desired by the applicant and was answered by Richard Lawson, “Yes,” this raises a doubt as to whether (8) applies only to life insurance or double indemnity. As bolstering this argument, Plaintiff Lawson points out that under “12 Facts on Proposed Insured” of the application, H, I and J all ask regarding “life insurance” and K asks, “How much double indemnity is now in force?” which was answered, “None,” and argues this shows that two separate contracts of insurance were in the contemplation of the parties. Again, it is contended that “insurance” and “double indemnity” are recognized as separate categories, and therefore when (8) uses the term “insurance” and “all other insurance” it has no reference to “double indemnity.” It is argued this causes (8) to be an ambiguous provision subject to the rule of construction against the insurance company.

We must keep in mind that it is only by virtue of the wording of the receipt that there was any liability of any kind against the insurance company. The application under 4, Date of Policy_,_,_, Month Day Year is answered “Date of Issue 1964.” Since no policy was issued, nor is any liability claimed by virtue of a policy or by virtue of Lawson’s right to have a policy issued, recovery can only be had under the terms of the receipt. It is this contract upon which plaintiff brought his suit, and it was by virtue of this contract that the insurance company paid the $25,000.00 life insurance. The receipt makes insurance effective as of the date of application, under certain conditions. There is no conflict in the terms of the application and the receipt. The application has reference to the policy to be issued. The receipt has reference to the sometimes designated “interim insurance” coverage of insured between the application date (in the case at bar no medical examination being required) and the date the policy is to be issued as provided in the application.

“As a general rule contracts of insurance are to be strictly construed in favor of the insured, hut this does not affect the further general rule that contracts of insurance are to he construed as other contracts, and that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties. See: United American Insurance Company v. Selby, 161 Tex. 162, 338 S.W.2d 160, 84 A.L.R.2d 367. It is the duty of the Court to construe the meaning of the language used in a contract. Minnesota Mut. Life Ins. Co. v. Newman, Tex.Civ.App. (1941), 157 S.W.2d 667, wr. ref. want of merit.
“Where, as here, an unambiguous writing is being construed, this Court will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case the instrument alone will be deemed to express the intention of the parties, for it is objective and not subjective intent that controls. Ohio Oil Co. v. Smith, Tex., 365 S.W.2d 621. Thus, where the language of an insurance contract is plain, it must be enforced as made.” Republic National Life Insurance Co. v. Spillars, Tex., 368 S.W.2d 92, 5 A.L.R.3d 957 (1963).

See also Royal Indemnity Company v. Marshall, Tex., 388 S.W.2d 176 (1965).

In examining the receipt and the application for insurance in the light of their functions and applying the law of construction of contracts thereto, we find that (8) is neither ambiguous nor in conflict with the application or with the other provisions of the receipt.

Section (1) of the receipt deals solely with the effective date of the “interim” insurance and sets forth the conditions governing the effective date of such insurance. Neither sections (2), (3), (4), (6) nor (7) are pertinent to our cause under consideration, as there are no facts in this case to which either or all or any combination of these five provisions would apply. (5) provides, “No temporary or interim insurance coverage shall exist by implication, but shall exist only in accordance with the express terms of this agreement.” (Emphasis added.) (8) is one of the express terms of the agreement and the only provision as to the amount of the “interim” insurance coverage. It provides: “The amount of the insurance becoming effective under the terms hereof shall in no event exceed $25,000 less the amount of all other insurance in force with the company.” (Emphasis added.) This expressly limits the amount of the liability of the insurance company to the insured and his beneficiaries. The $25,000.00 figure was a printed figure contained in the instrument, and although same happens to be the amount of life insurance applied for in the application of Richard Lawson, the figure was not placed in the application because of its relevance to the amount of life insurance applied for by Richard Lawson.

Respondent also contends that the fact that the premium paid in the sum of $26.50 was by the company allocated $24.25 to life insurance and $2.25 to double indemnity was further proof that (8) has reference only to life insurance and does not limit the double indemnity liability of the company to plaintiff. In view of our holding that the coverage under the receipt is limited to $25,000.00, this point became immaterial.

We reverse the judgments of both courts below and render judgment that the respondent, Oscar W. Lawson, take nothing.


author: POPE, Justice.

text:
    Ex parte J. T. CONWAY et al.
    Nos. B-163 and B-193.
    Supreme Court of Texas.
    Oct. 25, 1967.
    Chester A. Oehler, Dallas, Robert Landis Armstrong, Austin, for relators.
    Gerald E. Stockard, Denton, for respondent.
   POPE, Justice.

Relators are before this court on two applications for writs of habeas corpus after the judge of the 16th District Court of Denton County adjudged them in contempt for their disobedience of the court’s restraining order and also the court’s temporary injunction. In our opinion both orders of contempt are void and relators should be discharged from the custody of the Denton County sheriff.

These proceedings arose out of a civil action that^relators J. T. and J. B. Conway filed against T. W. Irick and wife for the determination of rights in a thirty-foot strip of land. The trial judge on January 26, 1967 issued a restraining order which restrained the Conways and their representatives from entering upon the disputed tract. The order was issued without notice and stated that it was “operative until and pending the hearing below ordered.” The order then set the hearing for ten o’clock on the morning of February 2. On that date the hearing began, but was recessed until February 3. The hearing was again recessed from February 3 to February 9. On February 7, the Conways and Chester Oehler, their attorney, went onto the disputed strip in the company of the County Surveyor in search of boundary markers and lines. On February 16 the trial judge ordered the Conways and Oehler to appear and show cause why they should not be adjudged in contempt for entering upon the land on February 7 in violation of the restraining order. Upon the contempt hearing, the judge found all three relators in contempt and ordered each to pay a fine of $100.00 and serve thirty hours in the Denton County jail.

Relators say that the contempt order is void because the January 26 restraining order expired at the end of ten days, and there was no order which operated as an extension of the restraint beyond that time. We sustain relators’ contentions. Rule 680, Texas Rules of Civil Procedure, authorizes the issuance of a restraining order without notice but limits the duration of such an order to ten days. Such an order “shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record * * * and shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period * *

The order of the trial court which adjudged relators in contempt recited that the restraining order issued on January 26 was extended by an order on February 2 and was again extended by an order on February 3. Neither order can be the basis for the adjudication of contempt. The order of February 2 was not reduced to writing or signed' by the judge until April 6, at which time it was ordered entered nunc pro tunc. An order that is neither written nor entered of record until two months after its terms are violated and almost one month after the contempt hearing on March 9, is not in compliance with the requirement that the order be filed forthwith in the clerk’s office and entered of record.

The same is true of the extension order of February 3. Relators went to the clerk’s office on February 7 and made a search of the records for any extension orders or any record of such orders. At that time there was no extension order in the court papers, and it was not until some time after February 23 that the February 3rd order appeared in the minutes. For sixteen days after the claimed violation of the court’s restraint, there was nothing in the clerk’s office which evidenced the extension order of February 3.

Rule 680, by its requirement that written orders must be filed forthwith, is designed to avoid this precise situation. The rule authorizes the drastic remedy of a restraining order which may be issued without notice. The same rule, however, affords protection for those against whom such orders operate. Notice or knowledge of the order which one is charged with violating is a jurisdictional prerequisite to the validity of a contempt order. In discharging a relator in Ex parte Stone, 72 S.W. 1000 (Tex.Cr.App., 1903) the court held: “ * * * In a matter of this sort, we must be governed by the record as it is presented to us; and unless the jurisdictional fact of notice to the relator is made to appear, the court below had no power to treat his disobedience of the writ of injunction as a matter of contempt. * * See also Ex parte Slavin, 412 S.W.2d 43 (Tex.1967); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 (1960); Ex parte Cragg, 133 Tex.Cr. 118, 109 S.W.2d 479 (1937); 17 C.J.S. Contempt § 18.

After several hearings the trial judge on February 23 entered a temporary injunction which, among other orders, commanded J. T. and J. B. Conway to make certain road repairs to the disputed strip of land. On March 23 the court, after a hearing, again found the Conways in contempt and ordered that they be committed to jail until they purged themselves of the contempt. The court also lacked jurisdiction to enforce its February 23 temporary injunction, because relators had previously on March 9 already perfected an appeal from the injunction. This court held in Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487:

“After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending the appeal, as well as to enforce its own final judgment, unless or until such judgment was subjected to review by a higher court. The district court could exercise no such authority while power to consider and determine these very matters lay exclusively in a higher court. Churchill v. Martin, 65 Tex. 367, 369; Wells v. Littlefield, 62 Tex. 30; Ford v. State (Tex.Civ.App.) 209 S.W. 490, 491; Hurley v. Buchanan (Tex.Civ.App.) 233 S.W. 590, 594(4).”

We accordingly hold that both of the orders for contempt are void and we order the Sheriff of Denton County to release the relators from custody.


author: CALVERT, Chief Justice.

text:
    PETROLEUM ANCHOR EQUIPMENT, INC., Petitioner, v. William D. TYRA, Senior et ux., Respondent.
    No. B-69.
    Supreme Court of Texas.
    Oct. 11, 1967.
    Rehearing Denied Nov. 15, 1967.

      Burford, Rybum & Ford, Spencer C. Relyea, III, and John L. Estes, Dallas, for petitioner.
    Baker, Jordan & Foreman, Russell M. Baker, Dallas, for respondent.
   CALVERT, Chief Justice.

This is an action by Petroleum Anchor Equipment, Inc., a Mississippi corporation, against William D. Tyra and wife to cancel certain written assignments from Petroleum to Luther S. Fite and from Fite to Tyra purporting to transfer title to an invented device for anchoring pipelines and to recover the title thereto. Following trial to a jury, the trial court rendered judgment that the plaintiff take nothing. The court of civil appeals has affirmed. 410 S.W.2d 238. We reverse the judgments of the courts below and render judgment for Petroleum. Earlier opinions of the court of civil appeals and this court on the question of necessary parties to the suit will be found in Petroleum Anchor Equipment, Inc. v. Tyra, Tex.Civ.App., 392 S.W.2d 873 (1965) and Sup., 406 S.W.2d 891 (1966).

Luther S. Fite invented a device designed to anchor pipelines in marshy land where they have a tendency to “float,” and applied for letters patent thereto. While the application was pending, Fite, on April 7, 1962, executed and delivered a written instrument to Petroleum Anchor Equipment, Inc., by the terms of which instrument Fite sold, transferred and assigned to Petroleum his “entire right, title and interest in and to said invention and application and in and to Letters Patent of the United States which may be granted therefor.” The assignment was recorded in the U.S. Patent Office on April 17, 1962.

On February 14, 1963, W. A. Moss, President of Petroleum, acting pursuant to a resolution purportedly adopted on January 8, 1963, by the board of directors of Petroleum, executed and delivered a written instrument to Fite by the terms of which all of Petroleum’s right, title and interest in the patent rights to the anchor was sold and assigned to Fite. Thereafter, on March 4, Fite by written instrument sold and assigned his right, title and interest in the anchor, the application and letters patent to W. D. Tyra, Sr. The bill of sale from Petroleum to Fite and a copy of the purported resolution authorizing Moss to execute the same were recorded in the U. S. Patent Office on March 21, and the assignment from Fite to Tyra was recorded on April 11.

On July 11, 1963, the board of directors of Petroleum rescinded the purported resolution of January 8, and thereafter on September 13 this suit was filed. Letters patent were granted September 24, 1963.

The primary basis on which Petroleum attacked the validity of the assignments was that the resolution which authorized Moss to sell and transfer the corporation’s property was never passed by its board of directors, and that the assignment to Fite executed by Moss, purporting to act for Petroleum, was therefore void. The jury found in answer to special issue no. 1 that the board of directors did not pass the resolution, and in answer to special issue no. 2 that when the assignment was made to Fite by Moss the application for letters patent constituted substantially all of Petroleum’s property and assets.

The defenses urged by the Tyras to the action were (1) want of consideration for the assignment from Fite to Petroleum; (2) that the assignment from Fite to Petroleum was in trust for Fite; and (3) that Petroleum was estopped to assert invalidity of the assignment from it to Fite because of its failure to take prompt action after it had or was charged with knowledge of the contents of the January 8 resolution. Although Fite testified that he assigned title to his invention to Petroleum to avoid claims of his creditors and with an agreement that Petroleum would reassign, no issues were submitted to the jury embracing the trust defense and no complaint has been made on appeal by the Tyras because of refusal of the trial court to submit such issues. The trust defense, if it be a defense, has thus gone out of the case except in so far as the evidence relating thereto may incidentally throw light on the defense of want of consideration. On that defense, the jury found in answer to special issue no. 3 that no money or thing of value passed from Petroleum to Fite for the transfer of the application for letters patent. In answer to special issue no. 4, the jury found that after January 8, 1963 the hoard of directors of Petroleum was informed as to the contents of the January 8 resolution; and in answer to special issue no. 5 found that after learning of the contents of the resolution, Petroleum’s board of directors “failed to act as ordinary prudent persons would have acted under the same or similar circumstances.”

Petroleum objected to the court’s charge because no special issue was submitted in connection with special issues nos. 4 and 5 inquiring whether Tyra had relied upon the matters therein inquired about. After the jury’s verdict was received, Petroleum filed a motion to disregard the jury’s answers to special issues nos. 3,4 and 5 and render judgment for it on the remainder of the verdict. One of the grounds urged for disregarding the answer to special issue no. 3 was that the finding that no consideration passed to Fite was immaterial inasmuch as the assignment did not have to be supported by consideration to be effective and valid. One of the grounds for urging that the answers to special issues nos. 4 and 5 be disregarded was that there was neither evidence nor a finding by the jury that Tyra relied on the resolution to his detriment.

On appeal, Petroleum has not questioned that Tyra was a purchaser for value and in good faith from Fite; and no doubt because of the jury's answer to special issue no. 1, neither the Tyras nor the court of civil appeals has questioned Petroleum’s right to the relief it seeks except as that right may be defeated by the jury’s answers to special issues nos. 3, 4 and 5. As supporting the right, see Franco-Texan Land Co. v. McCormick, 85 Tex. 416, 23 S.W. 123 (1893). The questions to be decided are thus narrowed to whether Petroleum’s right to recover is defeated by the jury’s findings (1) of want of consideration for Fite’s assignment to Petroleum, and (2) Petroleum’s negligence in failing to act promptly after learning of the contents of the January 8 resolution. The court of civil appeals held that Petroleum’s right to recover was defeated by each of the findings. We hold that it is defeated by neither.

We agree with the holding of the court of civil appeals that there is evidence in the record to support the jury’s finding that Fite received no consideration for his assignment to Petroleum; but we disagree with the court’s holding that the finding renders the assignment ineffective or invalid.

The Tyras’ position with reference to their defense of want of consideration is, and must be, this: Inasmuch as Fite received no consideration from Petroleum for his transfer on April 7, 1962, the written assignment never became effective and title never passed from but remained in Fite; and that Fite, therefore, was at all times the owner and holder of legal title which was transferred by him to Tyra by the assignment of March 4, 1963. The fatal flaw in the argument is that the finding of lack of consideration for the assignment to Petroleum does not lead to a legal conclusion that the assignment was void and never became effective.

According to Fite’s own version of the facts, corroborated by the testimony of Moss, his reason for executing and delivering the assignment to Petroleum without consideration was for the purpose of putting his patent rights out of the reach of his creditors; and the transfer was made pursuant to a promise by Petroleum to hold the title in trust and reassign when the creditors were satisfied. In this factual context Petroleum argues that inasmuch as the agreement was executed rather than executory, the finding of want of consideration is immaterial and will not defeat Petroleum’s- right to relief. We agree. Assuming Fite’s version of the facts to be correct, want of consideration for his assignment did not render the transfer of legal title ineffective or void. Consideration flowing to one who transfers property to another in trust is not essential to effectiveness or validity of the transfer. Restatement (Second) of Trust § 29; Scott on Trusts § 29 (1939); Bogert, Trusts & Trustees, § 202 (2d ed. 1965) ; Birk v. First Wichita Nat’l Bank, 352 S.W.2d 781 (Tex.Civ.App.-Ft. Worth 1962, writ ref’d n. r. e.). Section 29 of the Restatement puts the rule in this positive language: “The owner of property can create a trust of the property by transferring it to another person in trust although there is no consideration other than the transfer of the property.” Fite, or Tyra as his vendee, may have had a cause of action to cancel Fite’s assignment to Petroleum for fraud or to impose a constructive trust if Petroleum refused to reassign on demand, but Tyra did not seek by cross-action in this case either to cancel the assignment or to impose a trust.

The court of civil appeals has held that the jury’s answers to special issues nos. 4 and 5 will support the trial court’s judgment denying to Petroleum the relief it seeks on the following grounds: (1) estop-pel of Petroleum to assert invalidity of the assignments to Fite and Tyra; (2) ratification of the resolution and the assignments by the conduct of Petroleum; (3) since both Petroleum and Tyra are innocent parties and one must suffer by reason of the unauthorized assignmerit by Moss to Fite, the loss must fall on Petroleum because it was in a better position to prevent the loss. The evidence which was said by the court of civil appeals to support the jury’s answers to issues 3 and 4, which answers, in turn, were held to support the court’s legal conclusions, will be detailed.

Moss was president and Foreman was secretary of Petroleum. The board met on January 8. Moss testified that on February 14 he presented to Foreman a resolution, purporting on its face to have been adopted by the board at the January 8 meeting, conferring broad powers on him as president and general manager to deal with the property and affairs of Petroleum, arid that the resolution was thereupon signed by Foreman. On the following day, February 15, Moss executed the assignment to Fite, and on March 4 Fite executed his assignment to Tyra. When the assignment from Moss to Fite was recorded in the Patent Office on March 21, a copy of the resolution bearing Foreman’s signature was attached. The assignment from Fite to Tyra was recorded on April 11.

Petroleum’s board of directors met on March 21 and again on March 29, but took no action to rescind the purported January 8 resolution. At a subsequent meeting on July 11, formal action was taken by the board to rescind the resolution. As heretofore noted, suit to cancel the assignments from Moss to Fite and from Fite to Tyra was filed on September 13.

Foreman testified that the resolution was not passed at the January 8 board meeting, was not shown to and signed by him on February 14, and that he had no knowledge of its existence until July 11. Truly, a director and past president of Petroleum, testified that he learned of the resolution for the first time on July 11. Foreman also testified that he first learned of the assignment from Moss to Fite early in June and of the assignment from Fite to Tyra on June 19.

Petroleum’s right to relief cannot be defeated on the ground of estoppel. While a party may be estopped to assert his legal rights against another when his conduct misleads such other to his detriment, and the misleading conduct may consist of a failure to act when there is a duty to act, Johnson v. Sovereign Camp W. O. W., 125 Tex. 329, 83 S.W.2d 605 (1935); Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582 (1912), the party asserting an estoppel must establish that he relied on the misleading conduct to his detriment. Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635 (Tex.Sup.1965); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The only detriment suffered by Tyra was payment of consideration to Fite for the assignment on March 4. Hence, while Petroleum’s delay until July 11 in rescinding the resolution and until September 13 in filing suit to cancel the assignments may have had important significance to the jury in finding that Petroleum’s directors failed to act as ordinary prudent persons would have acted after learning the contents of the resolution, those derelictions cannot he used to supply the element of detrimental reliance. They occurred long after Tyra purchased. However, the jury’s answers to special issues nos. 4 and 5 that Petroleum learned of the contents of the resolution “after January 8, 1963” and was thereafter negligent, must be interpreted, in the absence of objection by Petroleum to the form of the issue, as a finding in keeping with the testimony of Moss that Foreman, and therefore Petroleum, learned of the contents of the resolution on February 14, and that Petroleum was negligent in failing to take some action with respect to the resolution before March 4.

Assuming for purposes of this discussion that Petroleum owed a duty to prospective purchasers from Moss to take prompt action of some character with respect to the resolution, there is neither conclusive evidence nor a jury finding of detrimental reliance by Tyra on the failure of the board of directors so to do; and because of Petroleum’s objection to the court’s charge, there can be no deemed or presumed finding under Rule 279, Texas Rules of Civil Procedure, in support of the trial court’s judgment.

The court of civil appeals has held as a matter of law that in purchasing from Fite on March 4, Tyra relied on the resolution. While technically the problem is rather one of reliance on misleading conduct of Petroleum’s board of directors, we will consider the problem, as did the court of civil-appeals, as though it were one of reliance on the resolution. So considered, the evidence does not establish conclusively that Tyra relied on the resolution in purchasing from Fite.

Although present at the trial, Tyra did not testify. We are not advised by him that he relied on the resolution or even that he had knowledge of its existence. Fite did testify, but he did not testify to having shown the resolution to Tyra or of having advised him of its existence. Tyra could not have had constructive notice of the resolution on March 4 because it was not recorded in the Patent Office until March 21 when it was recorded as an attachment to the assignment from Moss to Fite. There is no evidence showing when the attachment was made. Inasmuch as the resolution was attached to the assignment to Fite when that assignment was recorded perhaps an inference could be drawn that the attachment was made when Moss assigned to Fite on February IS, but there is no testimony by Fite or from any other source that Fite displayed to Tyra the assignment from Moss. Not only does the evidence fail to show conclusively that Tyra relied on the resolution in making his purchase from Fite, but it is doubtful that it is of sufficient probative force to raise a fact issue of reliance.

Petroleum’s right to relief cannot be defeated on'the ground that its conduct constituted a ratification of the resolution and the subsequent assignments. Ratification of an unauthorized act may be express or it may be implied from a course of conduct, Wm. Cameron & Co. v. Gibson, 278 S.W. 522 (Tex.Civ.App.-Austin 1925, writ ref’d); Knowles v. Northern Texas Traction Co., 121 S.W. 232 (Tex.Civ.App.-1909, writ dis’m); but whether it be express or implied, ratification is a plea in avoidance and thus is an affirmative defense which must be pleaded. Rule 94, Texas Rules of Civil Procedure. The Tyras did not plead ratification and there is nothing in the record before us indicating that trial of the issue was by consent.

In Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 (Tex.Civ.App.—Ft. Worth 1942, writ ref’d), the court stated the purpose of Rule 94 as follows:

“That purpose is to require the defendant to announce in his pleadings what his defense will be, if it includes any of the matters referred- to in the Rule, and to give plaintiff the opportunity of knowing what character of proof he may need to meet the defenses pleaded.”

The record before us is proof evident of the soundness of the quoted observation. The Tyras pleaded estoppel but not ratification. When special issues nos. 4 and 5 were submitted to the jury, Petroleum objected to them on the ground that they did not constitute an adequate submission of the defense of estoppel. There is nothing in the record to suggest that the issues were intended to submit a defense of ratification; and yet, on appeal, when it was too late for Petroleum to object to adequacy of such issues to submit a defense of ratification, the Tyras urged, and the court of civil appeals held, that the jury’s answers to the issues would support a legal conclusion that Petroleum by its conduct had impliedly ratified the resolution and the assignments. We hold that ratification, like estoppel, is an affirmative defense which, in the absence of trial by consent, is waived if not affirmatively pleaded.

Relief has often been denied to one who seeks cancellation of an instrument of conveyance or the recovery of property from a good faith purchaser when by his own conduct he is responsible for a situation in which either he or the purchaser must suffer loss. Brook v. Moreland, 32 Tex. 380 (1869); West v. First Baptist Church f Taft, 123 Tex. 388, 71 S.W.2d 1090 (1934); Sackenruether v. Winston, 137 S.W.2d 93 (Tex.Civ.App.-Galveston 1940, writ ref’d); Forman v. Irby, 115 S.W.2d 1229 (Tex.Civ.App.—Waco 1938, writ ref’d); Parma v. First Nat’l Bank of Cameron, 63 S.W.2d 692 (Tex.Comm’n App.1933). However, we do not agree with the implied holding of the court of civil appeals that the burden is on one seeking such relief and being otherwise entitled thereto, to prove that the purchaser was in a better position to prevent the loss; and neither do we agree with its holding that the facts in this case establish that Petroleum was responsible for the situation which will cause loss to the Tyras if Petroleum is awarded the relief it seeks. In reaching its conclusion that the rule stated may be applied to deny relief to Petroleum, the court of civil appeals said that it “had within its possession knowledge of all the facts at a time when it could, by prompt disavowal, have acted to undo the alleged wrongdoings between Moss and Fite. This the corporation did not do but remained silent for an inordinate period of time so that it may not now be heard to seek equitable relief.”

As we have stated in our discussion of the defense of estoppel, any loss which the Tyras may suffer must result from the purchase of the patent rights from Fite on March 4. At that time Petroleum had known of the existence and the contents of the resolution for a period of less than three weeks. The resolution did not expressly confer authority upon Moss to sell the patent rights; it conferred authority to sell corporate property in broad and general language only. There is no evidence in the record that Foreman or any other officer or director had reason to know or to suspect that Moss might exercise the general authority given him by the resolution to sell and dispose of the patent rights which constituted substantially all of the assets and property of the corporation. Neither is there evidence in the record that any officer or director of Petroleum knew of the assignment by Moss to Fite until long after Tyra had purchased from Fite. On the record before us, we hold that there is no evidence to support a conclusion that Petroleum was negligent in failing to rescind or disavow the resolution before Tyra purchased the patent rights. Moreover, there is no evidence that Petroleum was responsible for Tyra’s loss by its failure to rescind or disavow the resolution. Even were we to assume that Tyra knew of the resolution when he purchased from Fite, we cannot assume that he would have known of corporate action rescinding and disavowing it.

The judgments of the court of civil appeals and trial court are reversed and judgment is here rendered that Petroleum have the relief for which it prayed.

      . Emphasis the writer’s unless otherwise indicated.


author: GRIFFIN, Justice. SMITH, Justice.

text:
    Kent W. RICHARDSON, Petitioner, v. FIRST NATIONAL LIFE INSURANCE COMPANY, Respondent.
    No. A-11613.
    Supreme Court of Texas.
    July 26, 1967.
    Rehearing Denied Nov. 1, 1967.

      Colunga & Wennermark, John D. Wen-nermark, San Antonio, for petitioner.
    Heath & Davis, Dudley D. McCalla, Austin, for respondent.
   GRIFFIN, Justice.

Petitioner, as plaintiff below, filed suit in a district court of Bexar County, Texas, against respondent, as defendant, for commissions due him as agent for the defendant. He alleged “that plaintiff believes that at least the amount of Three Hundred Fourteen and 37/100 Dollars ($314.37) is due him for commissions from the policies sold under said contract.” He further asked for an accounting. Defendant filed its plea to the jurisdiction of the court because it appeared “from the face of the petition that the matter in controversy, exclusive of interest, amounts in value to less than $500.00,” etc. The trial court sustained this plea and dismissed the suit at plaintiff’s costs. On appeal, the Court of Civil Appeals affirmed. 408 S.W.2d 525. We affirm the judgments of the courts below.

Petitioner says that his suit was one for an accounting and that it was properly brought in the district court, as that court is a court of general jurisdiction. The allegations of plaintiff’s petition are that on February 13, 1961, plaintiff entered into a contract with defendant to sell insurance policies in defendant’s company as defendant’s agent; that plaintiff has in all things complied with the “stipulations, conditions, and agreements” placed on him by the contract, but that defendant has failed and refused to pay plaintiff the commissions due him on the policies “pursuant to the provisions of said contract.” Plaintiff further alleged that he has “demanded an accounting for said commissions” and has been refused such accounting by defendant at all times. Then follows the only allegation of any sum due plaintiff by defendant: “That plaintiff believes that at least the amount of Three Hundred Fourteen and 37/100 Dollars ($314.37) is due him for commissions from the policies sold under said contract.”

In his prayer plaintiff prays that defendant be required to make an accounting, “that plaintiff have judgment against the defendant for at least $314.37, and for such other sums as shall be found due on such accounting,” and for general relief.

Petitioner’s contention is based upon the fact that the constitutional and statutory provisions confer upon the district court general residuary jurisdiction. This contention has application only when considered in connection with the language of Art. V, Sec. 8 of our State Constitution, Vernon’s Ann.St. That language does not say the district court has jurisdiction of all suits that may be brought. The exact language of the residuary clause is, “The District Court shall have original jurisdiction * * * [in enumerated cases] when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest * * * and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution * * Art. 1909, Revised Civil Statutes 1925, as amended, contains language of similar import. The residuary clause of the Constitution applies only to those cases “for which a remedy or jurisdiction is not provided” by law or the Constitution. The jurisdiction given by this language is not concurrent with the jurisdiction of the other courts, but is an exclusive jurisdiction within its field. (All emphasis is that of this Court.)

The only way the district court’s jurisdiction could be sustained would be to hold that this is a suit in equity. That is not correct. This suit is an ordinary suit on a written contract of employment which plaintiff attaches to his petition. Plaintiff’s demand is a money demand. The residuary clause of Art. V, Sec. 8 applies only to causes of action for which a remedy or jurisdiction is not provided by law or the Constitution. The Constitution provides that suit must be brought in the county court for a debt that exceeds $200.00 and does not exceed $500.00. Rule 172, Texas Rules of Civil Procedure, provides among other things that when an investigation of accounts or examination of vouchers is necessary in any suit, the trial court “shall appoint an auditor or auditors to state the accounts between the parties,” etc.

This plaintiff’s cause of action herein is not an equitable action; it is not an action for which no remedy nor jurisdiction is provided by the Constitution and the law. Therefore, it is not entitled to be heard in the district court, but must be heard in the county court.

With regard to the contention that the allegation seeking an accounting makes an equitable action of plaintiff’s demand and also makes the residuary clause of Art. V, Sec. 8 controlling, there is an excellent annotation in 3 A.L.R.2d 1310, entitled “Availability of Equitable Remedy of Accounting Between Principal and Agent.” In this annotation there is quoted from Restatement of Agency, Vol. 2, Sec. 399, the rules governing an accounting suit between principal and agent:

“A principal does not have a bill for an account or other equitable relief against an agent merely from the fact of agency or from the fact that the agent has received something for the principal. Equitable relief may, however, be granted not only on the ground that there is no adequate remedy of law, as where an injunction is sought, but also where there is a close fiduciary relationship. * * * On the other hand, unless there is such a complication of accounts that it is difficult for the machinery of the law courts to cope with them, the principal ordinarily cannot bring a bill in equity for money due; if his remedy otherwise would be solely in the courts of law, he cannot bring a bill for an account merely on the ground of the agency relationship.”

These same rules apply to an action of an agent against his principal. 3 A.L.R.2d 1369 et seq., § 19. This annotation also quotes from 4 Pomeroy Equity Jurisprudence, 5th Edition, Sec. 1421,

“The instances in which legal remedies are held to be inadequate and thus a suit in equity for an accounting may be brought are stated to be: (1) Where there are mutual accounts between the parties, that is, where each of them has received and paid on account of the other, as distinguished from matters of set-off and accounts on one side only. (2) Where the accounts are all on one side but there are circumstances of great complication or difficulties in the way of adequate relief at law. To determine what degree of complication is required for a pure accounting the rule was established by the English courts that the account be so complicated that a court of law would be incompetent to examine it by application of the trial procedure at nisi prius proceedings although many of the present statutes and practice rules governing courts of general jurisdiction enable matters of accounting to be referred to officers or referees. The only test recognized by modern decisions is that if the facts and accounts presented relate to so many different transactions and items in such relationship to each other that it is doubtful whether adequate relief could be obtained at law, equity should entertain jurisdiction. * * * ”

From the above annotation and the excerpts we have cited, we find that this suit does not qualify as an equitable proceeding for which our Constitution and statutes provide no remedy or jurisdiction.

The general rule is that the allegations of the plaintiff’s petition must state facts which affirmatively show the jurisdiction of the court in which the action is brought. Brown v. Peters, 127 Tex. 300, 94 S.W.2d 129 (1936); Smith v. Horton, 92 Tex. 21, 46 S.W. 627 (1898); Texas & N. O. R. R. Co. v. Farrington (Tex.Com.App., 1905), 40 Tex.Civ.App. 205, 88 S.W. 889.

“The rule of law seems to be well settled in this state that, if plaintiff pleads generally a state of facts, and goes further and pleads specifically and particularly on the same subject, he cannot rely upon the general allegations, but is confined in his recovery to those specifically and particularly pleaded. Specific allegations will control those of a general character.” (Citing authorities.) Houston Printing Company v. Hunter (Tex.Civ.App. 1937), 105 S.W.2d 312, 318, aff’d 129 Tex. 652, 106 S.W.2d 1043.

In our case the Constitution and statutes do give jurisdiction to various courts to determine suits for debt, based on the allegations in the petition as to the amount in controversy. Also, in our case' the only allegation as to a definite debt is $314.37, and that amount is not within the jurisdiction of a district court.

We affirm the judgments of both courts below.

CALVERT, C. J., concurs in the result.

Dissenting Opinion

On Motion for Rehearing

SMITH, Justice.

I respectfully dissent. This case presents the narrow question of whether the district or county court has jurisdiction to entertain the suit. In order to determine this question, the nature of the relief sought must be first determined. This is a suit for equitable relief in a situation where the terms of the contract reveal a close fiduciary relationship between Richardson and First National. Richardson alleged in his petition facts showing that he was seeking an accounting. The contract attached to the petition reflects that First National was under a duty to keep an accurate account of all commissions due Richardson. The contract specifically states that “[t]he ledger account of the Company shall be competent and conclusive evidence of the state of accounts between you [Richardson] and the Company.” It is clear that any records kept by Richardson would be of no avail in the event of the failure of First National to divulge the contents of its ledger accounts pertaining to Richardson. First National collected all premiums, but, according to Richardson’s pleadings, “ * * * failed and refused, and still fails and refuses, to perform said contract on its part, in that Defendant, notwithstanding said contract, did collect monies on the policies sold by Plaintiff pursuant to said contract, and has failed and refused to pay Plaintiff the commissions due on said policies to him pursuant to the provisions of said contract. That Plaintiff has demanded an accounting for said commissions from Defendant repeatedly since May 1st, 1964, and has been refused such accounting by Defendant at all times.” Then, follows the allegation: “ * * * Plaintiff believes that at least the amount of Three Hundred Fourteen and 37/100 Dollars ($314.37), is due him for commissions from the policies sold under said contract.” Then, follows the prayer:

“Wherefore, premises considered, Plaintiff prays that Defendant be required to make an accounting, that Plaintiff have judgment against the Defendant for at least the sum of Three Hundred Fourteen and 37/100 Dollars ($314.37), and for such further sums as shall be found due on such accounting, for a reasonable sum as attorneys’ fees, for cost of suit, and for such other and further relief to which he may be entitled either at law or in equity.” (Emphasis added.)

There are certain provisions of the contract which conclusively demonstrate that Richardson by the decision of this Court has been deprived of his constitutional right to- a trial. His petition alleges that “Defendant is a foreign Life Insurance Company, having its home office at * * * Phoenix 14, Arizona, which has designated * * * Commissioner of Insurance, State Board of Insurance, * * * as its duly authorized agent and attorney in fact, etc.” So far as this record indicates, all accounts and records of premium collections are kept by the Company at its home office in Phoenix, Arizona. Regardless of where such records are kept, Richardson can never successfully obtain a judgment until First National is compelled to perform its part of the agreement. It follows that he could not at the time of filing suit know the exact amount due him. Consider the following provisions of the contract in determining whether this is a suit for an accounting, ..n equitable action, or is, as stated by this Court, “ * * * an ordinary suit on a written contract of employment.”

To be found in the contract are provisions that all life policies written by Richardson, the face amount of which is $50,000.00 or more, First National has the right to fix the amount of the first year commission. The contract provides that this commission shall not be reduced below the commission provided in Paragraph A, Section 4 by more than 10% of the first year premium. To further complicate the matter of accounting and to point up the error of this Court’s holding, there appears as a part of the contract a “supplement to agent’s agreement”, dated June 2, 1959, hich reads:

“It is further understood and agreed that, on all earned premiums, after the first premium, you will receive a servicing Commission of 15% of premiums; such servicing commission to continue so long as the business remains in force with the Company; and provided that this contract is in full force and effect, and further provided that you are actually servicing said business to the satisfaction of the Company.”

Finally, I point to the provision of the contract dealing with “Commissions on Conversions.” :

“Commissions on conversions, policies substituted or rewritten for another on the same life, modified forms of policies and policies other than as specified above shall be governed, irrespective of any other provisions of this agreement, by the rules and practices of the Company as established from time to time.”

Under the record in this case, Richardson’s suit should be classed as a proceeding in equity. He has clearly brought a suit where all of the essential facts are peculiarly within-the knowledge of First National. Therefore, Richardson was required only to allege, as he did, with reasonable certainty the employment as agent for First National, the Manner of Compensation, the performance of services showing some commissions to be due, and the facts and circumstances demonstrating that the correct amount could not be ascertained without an accounting. See Brea v. McGlashan (1934) 3 Cal.App.2d 454, 39 P.2d 877; Arbuckle v. Clifford F. Reid, Inc. (1931) 118 Cal.App. 272, 4 P.2d 978; Shepard v. Brown (1863) 9 Jur.NS (Eng) 195; Williams v. Finlaw, Mueller & Co. (1928) 292 Pa. 244, 141 A. 47; Miller v. Russell (1906) 224 Ill. 68, 79 N.E. 434. This latter case emphasizes the fact that the agent in that case, as here, was without adequate means of ascertaining the true status of the accounts. The Supreme Court of Illinois in Miller, supra, a case factually similar to the present case, held against the contention of Miller that the cause of action was an ordinary suit on a contract. The Court rejected Miller’s contention that the Company occupied no fiduciary relation to Russell and that the Company did not hold the money received by it in trust for Russell. The Court also rejected Miller’s contention that Russell had “an ample and adequate remedy at law”.

The Court, after stating that Russell’s “objections go to the jurisdiction of a court of equity”, held:

“A similar question has been before us on other occasions, and the law settled, at least in this state, against the contention of plaintiffs in error. In Hair Co. v. Daily, 161 Ill. 379, 43 N.E. 1096, we held-that, as a general rule, in matters of account courts of equity have a general jurisdiction where the accounts are mutual; also where they are on but one side, a discovery being sought which is material to the relief prayed. And again in the case of Gleason & Bailey Manf. Co. v. Hoffman, 168 Ill. 25, 48 N.E. 143, it was held that jurisdiction in equity exists wheie there are mutual accounts between the parties, or where the account is all on one side, and there are complications or difficulties in the way of an adequate remedy at law, or where a fiduciary relation exists, and a duty rests upon the respondent to render an account. In the case of Crown Coal & Tow Co. v. Thomas, 177 Ill. 534, 52 N.E. 1042, it was again held that equity may take jurisdiction in matters of account when the state of account between the parties is intricate and complicated, or so involved with the rights of third parties that it would be difficult for a jury to unravel the numerous transactions, and that the jurisdiction of equity in matters of account does not depend upon the existence of a remedy at law, but upon the adequacy and practicability of such remedy and upon the discretion of the court. Bispham’s Principles of Equity (4th Ed.) p. 536, and cases cited in note 2. We think the facts in this case clearly within the rule. The defendant in error entered into a contract with the association, represented by the plaintiffs in error, under which he made many sales of land in conformity with said development contract. He was to receive compensation in small amounts on each of the sales, and this compensation was paid to the association, and entered upon their books. The payments were not made to him, but by the terms of the contract were all payable to the association. He had no means of telling when or in what amounts such payments were made except through its books, and it. is apparent from the evidence that the association neglected and refused to give him this information. He made frequent demands upon its officers for that purpose, which were refused. While the account was, therefore, upon one side, the information as to the state of the account was entirely in the possession of the association. The account stated by the master was shown to be complicated and very intricate, and covered many pages of the abstract. Manifestly it would have been practically impossible for a jury, even with the books in evidence, to figure out the amount due the complainant. For that, if no other, reason, the claim of the complainant was the proper subject of an accounting by the master. Moreover, the bill not only prays for an accounting, but for a discovery against the association. The contract between the parties provided that complainant should have the right to make resale of all forfeited shares, and the evidence shows that 186 shares were forfeited by the association, and no report whatever of them made to him. He had no adequate means of ascertaining this fact except by a bill for discovery. The bill is not, however, a bill for general discovery, but one seeking the discovery of facts upon which the complainant bases his action, which he alleges are wrongfully withheld from him.”

If Courts of equity have general jurisdiction, we turn to the question we have before us.

In determining whether the district or county court has jurisdiction to entertain this suit in equity, I pose the hypothetical question: What would happen if, under the same allegations, suit had been brought in the county court ? In deciding this question, it should be kept in mind that, disregarding certain types of suits (none of which are involved here) where jurisdiction is determined by the subject matter of the case, the county court has potential jurisdiction when the amount in controversy is between $200 and $1,000. See Texas Constitution, Article V, Section 16; Vernon’s Annotated Texas Statutes , Article-1949; Article 1950. Jurisdiction in the district court, on the other hand, commences at $500 and is without limit. See Tex.Const., Article V, Section 8, Vernon’s Ann.St. Article 1906. Thus, between $500 and $1,000 the county courts and the district courts have concurrent jurisdiction. To be considered in connection wtih the above provisions are the statutory and constitutional provisions which confer upon the district court general, residual jurisdiction. Thus, by ArtiCe V, Section 8 of the State Constitution, it is provided in part:

“The District Court * * * shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original or appellate, as may be provided by law.”

Article 1909, provides:

“Such [district] court shall have general original jurisdictions over all causes of action, for which a remedy or jurisdiction is not provided by law or the constitution, and such other jurisdiction, original and appellate as may be provided by law.”

First National argues that it affirmatively appears from the pleadings that the amount in controversy is less than $500 and therefore jurisdiction for this case is not in the district court. I disagree with this conclusion. It does not affirmatively appear from the pleadings that this cause falls within the jurisdiction of the county court. In fact, if the suit had been brought in the county court, the sustaining of a plea to the jurisdiction would have been proper. As the county court is a court of limited jurisdiction, it is without power to render a judgment which exceeds its constitutional limit of $1,000. If, of course, jurisdiction in the instant case were improperly placed in the county court an entry of a judgment exceeding $1,000 would be void. No authority need be cited for the proposition that a void judgment is an absolute nullity and, as such, confers no rights and binds no one. These propositions are elementary. As was stated in Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959) :

“Judgments are void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition or outside limiting constitutional or statutory authority.”

Thus, if the present case were brought in the county court, and if a plea to the jurisdiction was not sustained and it subsequently developed that Richardson was entitled to a judgment of more than $1,000, the court would be powerless to enter the judgment. The point is that an allegation that Richardson is entitled to at least $314.37 plus whatever an accounting may reveal he is entitled to could yield a total of more than $1,000. The county court being unable to enter a judgment for more than $1,000, Richardson would then be forced to seek his relief in a district court. This Court should refuse to countenance such a spectacle.

As I read the pleadings, Richardson believes he is entitled to at least $314.37, and such additional sums to which an accounting may reveal he is owed. As the case has not gone to a trial on its merits and there is no statement of facts, this Court has no way of knowing what, if anything, First National may owe Richardson under the contract, although it should be pointed out that the contract contains the usual provisions for commissions for the sale of policies. In my view of the case, howev-r, this is immaterial as this Court is here concerned solely with determining the proper court in which this lawsuit should be maintained on the basis of the pleadings. The proper forum for this case is in the district court pursuant to Article V, Section 8 of the State Constitution, supra, and Article 1909, supra.

The judgments of the trial court and the Court of Civil Appeals should be reversed and the cause remanded to the district court for a trial on the merits.

WALKER and STEAKLEY, JJ., join in this dissent.

      . All statutory references hereinafter contained are to Vernon’s Annotated Texas Civil Statutes.


author: WOODLEY, Presiding Judge.

text:
    Charles D. BOYD, Appellant, v. The STATE of Texas, Appellee.
    No. 40485.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Nov. 15, 1967.

      Charles W. Tessmer, Frank S. Wright, Dallas, for appellant.
    Henry Wade, Dist. Atty., William F. Alexander, Tom Reese and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is kidnapping for the purpose of extortion; the punishment, 40 years.

The indictment alleged that appellant and Virgil Chester Mcllvain did “unlawfully and forcibly detain, forcibly confine, forcibly conceal annd fraudulently entice away Robert Payne for the purpose and with the intent of taking, receiving, demanding and extorting from the said Robert Payne * * * valuable property, to wit fifteen thousand dollars ($15,000.00) current money of the United States of America.”

Trial was before a jury under the 1965 Code of Criminal Procedure on a plea of not guilty.

The court’s charge authorized a finding of guilty if the jury found from the evidence beyond a reasonable doubt that appellant “did unlawfully and forcibly detain, or forcibly confine, or forcibly conceal and fraudulently entice away Robert Payne for the purpose and with the intent of taking or receiving, or demanding or extorting from the said Robert Payne ⅝ * * valuable property, to wit: fifteen thousand dollars * * * or any part thereof.”

Appellant’s first ground of error relates to his exception III to the court’s charge which reads:

“Defendant excepts to Page One of the Court’s charge, paragraph three in that it does not charge on the statute with reference to the allegations as set out in the Indictment and Defendant excepts that Page One and Two of the Court’s charge to the Court’s submitting that the theory that the Defendant may be convicted for forcibly concealing and fraudulently enticing away Robert Payne because there is no evidence to support same.”

Ground of error No. 2 relates to Exception No. II to the court’s charge and presents the alternative contention that the state failed to prove all of the descriptive allegations of the indictment as to the elements of the offense and how it may be committed, namely “did unlawfully and forcibly detain, or forcibly confine, or forcibly conceal and fraudulently entice away Robert Payne * *

Complainant Robert Payne, a practicing attorney, testified that appellant came to his office, situated on the same property where his farm home was located, and urged Payne to go with him to the scene of a fight that appellant had apparently had with another man the night before. After Payne refused to go, appellant drew a pistol from his pocket and ordered him to go. Payne drove appellant’s car to a house where Virgil Chester Mcllvain was staying. The three, with McIlvain driving, went to a farmhouse near the city of Plano owned by one Joe Hunter Harrington. Appellant told Payne, while outside the farmhouse, that he wanted $15,000 for the purpose of conducting a bookmaking operation in Collin County (where Plano is located). Payne was taken into one room of the Harrington farmhouse while Harrington, Mcllvain and appellant discussed bookmaking operations in another room.

Later, appellant, Payne and Mcllvain left the farmhouse with Mcllvain driving and appellant in the back, seated immediately behind Payne. During the return trip to Dallas appellant continually threatened Payne with his life unless he would give appellant $15,000. At one point during this trip appellant hit Payne on the head with a pistol which he had continuously kept in his hand.

The trio proceeded to one Peewee Karr’s house where Payne was taken to a small building behind the house while Mcllvain went to locate Karr. Appellant continued to demand the $15,000 and told Payne that he would kill him if he tried to leave, and pistol-whipped Payne on the head. When Karr arrived appellant told him that he was going to be given $15,000 by Payne. Appellant then had Payne call his bank and tell a Mrs. Scallorn that he wanted $15,000 cash prepared for him so he could come to the bank and pick it up.

Payne was then taken to a doctor’s office where his wounds were dressed. After leaving the office Payne, Mcllvain, Karr and appellant went to Payne’s bank. Following a lengthy discussion with the bank officer concerning the manner in which the $15,000 would be handled (the problem being Karr not wanting to take cash because of present tax difficulties), a joint account with Payne and “P. W. Carr” was opened, financed by a check for $15,000 written by Payne on his personal account.

Karr drove Payne home from the bank and Payne filed a formal complaint the following morning.

The statute describing the offense of kidnapping for extortion (Art. 1177a P.C.) sets out in the disjunctive the means of committing the offense, and the court’s charge was properly framed in the statutory form. See 4 Branch’s Ann.P.C.2d 247, Sec. 1926.1.

The framing of the indictment in the conjunctive was the proper method and did not require the state to prove each distinct element set out therein. Shook v. State, 156 Tex.Cr.R. 515, 244 S.W.2d 220; Odie v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595.

Further, we find the evidence, viewed from the standpoint of the state, sufficient to sustain a finding by the jury that Payne was not only forcibly detained and confined but was forcibly concealed and fraudulently enticed away by appellant.

Appellant’s third point of error is the contention that the court erred in charging in the abstract on the law of principals but failing to apply that law to the facts. Appellant does not show that the charge in this regard was calculated to injure the rights of the accused. Lowe v. State, Tex.Cr.App., 377 S.W.2d 193; Bryant v. State, Tex.Cr.App., 397 S.W.2d 445.

Point of error number four concerns the requested instruction by appellant to the effect that he could not be convicted if his only intent was to obtain an account receipt and deposit slip representing a deposit of $15,000. Appellant argues that this was a defensive issue raised by the evidence and that he was entitled to an affirmative submission to the jury of this defense.

The court charged the jury as follows:

“You are further instructed that before you can convict the defendant of kidnapping for the purpose of extortion, if he did, you must further find and believe from the evidence beyond a reasonable doubt that at the time of the forcible detention, if any, or confinement, if any, or concealment, if any, and fraudulent enticement, if any, had the specific intent to extort $15,000 current money of the United States, or any part thereof, and unless you do so find and believe or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty.”

The quoted portion of the charge adequately protected appellant’s interests insofar as his defensive issue was concerned. No error is perceived.

Appellant’s fifth point of error presents the contention that the court should have instructed the jury that aggravated assault was not an element of the offense with which appellant was charged, and should have submitted the converse to the state’s charge with respect thereto.

The testimony regarding the assault was used to prove up the crime for which appellant was on trial, and was not an extraneous offense. The failure of the court to charge the jury as suggested was not error.

Appellant next complains that the trial court erred in failing to allow a defense witness to testify in the presence of the jury to facts which impeached the testimony of the prosecuting witness Payne.

The testimony sought to be impeached was Payne’s testimony elicited on cross-examination that he had never been to the Sahara Hotel with appellant to see colored prostitutes.

The trial court did not err in excluding testimony of a witness that she had seen Payne and thought he came to the Sahara Hotel often “to go to the rooms.”

This testimony had nothing to do with the relationship between Robert Payne and appellant, and the trial court properly rejected it. Fleck v. State, Tex.Cr.App., 380 S.W.2d 621; Gatson v. State, Tex.Cr.App., 387 S.W.2d 65.

In his point of error number seven, appellant contends it was error for the trial court to refuse his request for a copy of grand jury testimony for the purpose of impeaching the testimony of the state’s witness Karr, after the prosecutor had referred to Karr’s grand jury testimony during his interrogation.

The only use made by the prosecutor of such grand jury testimony was out of the presence of the jury. There is no showing that the prosecutor was displaying or using the grand jury testimony in the presence of the jury. No error is shown. Perdue v. State, 171 Tex.Cr.R. 332, 350 S.W.2d 203; Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426; Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 987; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142.

Appellant’s eighth ground of error seeks to invoke the rule that reversal results without any showing of injury for the denial of defendant’s request or demand that he be permitted to inspect any document, instrument or statement which is used in some way before the jury by which its contents become an issue, such as exhibited or read or used to question the witness in the jury’s presence. Sewell v. State, Tex.Cr.App., 367 S.W.2d 349; Walton v. State, Tex.Cr.App., 386 S.W.2d 805; Cook v. State, Tex.Cr.App., 388 S.W.2d 707, 708.

Appellant’s brief states that defense counsel requested a copy of the grand jury testimony of the defense witness and co-indictee Mcllwain. This statement is predicated upon the following which occurred on Mcllwain’s cross-examination.

“Q. All right. Payne, said ‘He is acting like a crazy man’ that’s true, isn’t it?
A. I don’t know if he said that or not.
Q. Well, that’s what you testified to before the Grand Jury, didn’t you?
A. Well, I don’t recall if he said that or not. I didn’t take every little word that was said.
Q. Didn’t you tell me in the Grand Jury he said, ‘He’s acting like a crazy man?’
A. Did I say that he was acting like a crazy man, maybe Mr. Payne said it, I didn’t say it.
Q. Do you remember that answer that you gave before the Grand Jury—
MR. WRIGHT: Now, Judge, I object to this flashing around this transcript unless I’m going to be entitled to or given a copy of it.
“THE COURT: Overruled.
MR. WRIGHT: Unless he lays a predicate, which he hasn’t, he’s flashing papers around as far as I can see.
THE COURT: He’s got a right to interrogate the testimony (sic) and use the Grand Jury testimony.
MR. WRIGHT: I don’t have any idea that that’s what he’s using.”

We do not find in the objection quoted or elsewhere in the record any request or demand that appellant or his counsel be permitted to inspect the document, “papers,” instrument or statement which counsel for the state was using in the cross-examination of the witness Mcllvain.

The invocation of the rule that a defendant must be permitted to inspect any document, instrument or statement which is used before the jury by which its contents become an issue (such as using it to question the witness in the jury’s presence) is conditioned on a timely request or demand by the defendant that he be permitted to inspect the document. Sewell v. State, Tex. Cr.App., 367 S.W.2d 349. No such timely request or demand is shown to have been made by appellant in the instant case. An obj ection “unless I’m going to be entitled to or given a copy of it,” can hardly be construed as a request or demand to be permitted to inspect the transcript or document.

In his ninth point of error appellant complains of the admission of certain testimony of a state’s witness containing hearsay declarations made by the prosecuting witness.

On cross-examination of Peewee Karr, a state’s witness, the following testimony was elicited by appellant’s counsel:

“Q. All right. On the way home, I’ll ask you if there was any conversation between the two of you making up some story to tell his wife about the cuts?
A. After he said, ‘Oh, Boyd wants to to do some booking,’ well I said, ‘Bob what are you going to tell your wife, what are you going to tell your wife?’ He says, ‘I’m going to tell her that I was in wreck with you.’
Q. All right. Did you, in fact, hear him tell her that when you got hack to his house ?
A. When we got back to his house, to his office, we went in there and—
* * * * ⅜ *
A. Well, he asked me if that was all right if he said he was in a wreck and he was going to tell his wife — I says, ‘What are you going to tell your wife?’ and he said ‘I have an idea.’
Q. What did he say?
A. ‘I’m going to tell her I was in car wreck with you.’
Q. My question once again is, did you hear him tell his wife that?
A. I did.”

On redirect examination of Karr the prosecution elicited the following testimony:

Q. Now, directing your attention to the afternoon after the kidnapping, after Payne had been sewed up, after you had been to the bank when you got into the office, counsel asked you some questions about your conversation with Payne in the office. Now, after he told his wife that he had been in an automobile accident with you, tell us the rest of that conversation ?
A. Well, Bob and I, he got a phone call or he made a phone call to somebody by the name of, a friend of his that runs a pawn shop or something and Bob started to—
* * * * * *
A. He got a call or made a call and he was talking to this party and he was telling — when he started talking to him he started telling about Boyd came out there that morning and how Boyd had made him leave the house with him and go up to Plano and then I was listening after he got through talking to him — I gave Bob, which I had a little card, which had a little account number on it — I remember she did give me the slip — and after I heard him talking to his friend, I gave him that little card and I said ‘Bob, I don’t want no part of this $15,000 and I damn sure can’t withdraw any of it.’ So his daddy-in-law came in and when his daddy-in-law came in then he asked him what happened and he said, ‘Well I had a wreck with Pewee in his wife’s car’ and I felt like I would leave and I went on home.”

When part of the conversation in Payne’s office was given in evidence by appellant, the whole of that conversation could be inquired into by the prosecution. Art. 38.24 C.C.P.; Harwell v. State, 156 Tex.Cr.R. 337, 242 S.W.2d 388.

In his tenth and final point of error, appellant complains of the introduction into evidence of certain photographs of the complaining witness which were taken the day after the occurrence in question. It is contended that these photographs were inflammatory in nature and were admitted solely for the purpose of inflaming the minds of the jury against appellant.

Reproductions of the photographs which are in the record show merely that Payne’s face was bandaged and that his eye was injured. The photographs were not of an inflammatory nature and were properly admitted as relevant evidence. Young v. State, Tex.Cr.App., 398 S.W.2d 572.

The judgment is affirmed.


text:
    Jesse ELLISON, Appellant, v. The STATE of Texas, Appellee.
    No. 40072.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 15, 1967.

      Charles E. Reagan, court appointed, Jack Welch, court appointed on appeal, Marlin, for appellant.
    Thomas Bartlett, County Atty., Marlin, Stanley Kacir, Dist. Atty., Belton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery with a deadly weapon; the punishment, death.

The assault was alleged to have been made upon Thula Hill and the indictment alleged the using and exhibiting of a deadly weapon, to-wit a knife, in robbing her of $340.00 in money.

Thula Hill, a 59 year old divorcee, testified : She was a clerk at a Liquor Store in a rural area of Falls County on February 18, 1966. Appellant came to the store and purchased a fifth of wine and left. He returned about 8 P.M. at which time she was in charge of the Liquor Store and was alone. As she was standing at the water fountain, appellant walked up behind her and grabbed her. He told her not to say a word — not to call anybody — not to scream or he would kill her. He had a knife at her back and said: “Just one stab is all it will take to kill you.”

Appellant ordered her to go to the cash register, open it and give him the money or he would kill her. She complied and he put the money in a paper bag. Still with the knife at her back, and under threat to kill her, appellant required her to go with him in an old station wagon into Bell County. He then tied her hands and blindfolded her and drove to a dump ground about 5 miles from Temple where he took the blindfold off, untied her hands and under threat to kill her had two acts of sexual intercourse with her before highway patrolmen arrived and rescued her.

Six grounds of error are set forth in appellant’s brief filed in the trial court.

The first two points relate to the admission of the evidence pertaining to the abduction or kidnapping following the robbery, and to the rape of Thula Hill at the dump ground in Bell County. The first point is that this evidence pertained to extraneous offenses and was improperly admitted. The second point is that the court erred in overruling appellant’s motion to suppress such evidence.

The three offenses were committed by a continous assault and were so interwoven as to be part of the same transaction. The evidence sought to be excluded was admissible under the so called res gestae rule. Kerrigan v. State, 321 S.W.2d 884, and cases cited.

Appellant’s point No. 3 is that the punishment is excessive and amounts to cruel and unusual punishment for the offense charged. Gonzales v. State, Tex.Cr.App., 386 S.W.2d 139; Mason v. State, Tex.Cr.App., 375 S.W.2d 916, and Blassingale v. State, Tex.Cr.App., 408 S.W.2d 115, are contrary to appellant’s contention.

We do not agree with appellant’s contention that these authorities should be overruled. We have no doubt as to the authority of this Court to reverse and set aside a conviction where contrary to the Constitution of the United States cruel and unusual punishment has been assessed. This Court does not, however, have authority to fix a different punishment than that which it finds “cruel and unusual.”

The legislature has authorized death as the maximum punishment for the offense of which appellant was found guilty. In arriving at the proper punishment to be assessed the jury was authorized to consider all of the evidence relating to the transaction that was admitted at the trial.

We are aware of no authority for a holding that death is excessive punishment for robbery with a deadly weapon. The nearest appellant approaches the question is the dissenting opinion in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, which expressed the view that certiora-ri should be granted “to consider whether the Eighth and Fourteenth Amendments to the United States Constitution permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life.”

Appellant’s point of error No. 4 is that he was prevented from receiving a fair trial by the exclusion of jurors who did not believe in or had conscientious scruples against the infliction of death as a punishment.

Art. 35.16(b), Sec. 1, Vernon’s Ann.C.C. P., provides that a challenge for cause may be made by the state for the reason that the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case where the state is seeking the death penalty.

The contention that this provision of the statute is invalid is overruled. Crain v. State, Tex.Cr.App., 394 S.W.2d 165. See also Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915, cert. denied, 352 U.S. 858, 77 S.Ct. 79, 1 L.Ed.2d 64.

Ground of error No. 5 is that appellant was prevented from receiving a fair trial because the jurors that tried the case were selected by the jury commission system.

Art. 33.09 V.A.C.C.P. provides that jury panels, including special venires, for the trial of criminal cases shall be selected in the same manner as the selection of panels for the trial of civil cases.

Art. 2104 to 2107 Vernon’s Ann.Civ.St., which relate to Jury Commissioners and their duties regarding the selection of petit jurors, are applicable in Falls County and in all counties other than those where another method of selecting jury panels has been provided by a subsequently enacted valid statute.

The remaining ground of error is that the court committed error in summoning the special venire for the trial of the kidnapping charge and then calling the robbery charge to trial.

Our holding that the offenses were not extraneous but interwoven and the evidence as to the entire transaction was properly admitted disposes of the contention that appellant was prejudiced by the fact that the jurors were made aware of the indictment for kidnapping as well as the indictment for robbery.

Both cases in which a special venire had been drawn being set for the same day, it was within the discretion of the court which should be tried first.

The trial court did not err in overruling appellant’s oral motion for continuance on the ground that the jury was summoned to try the kidnapping case.

The judgment is affirmed.


author: DICE, Judge.

text:
    Carlee ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 40669.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Brown & Hamby, by Roger D. Brown, Big Spring, for appellant.
    Wayne Burns, Dist. Atty., Big Spring, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery by assault; the punishment, twenty years.

This is a companion case to Lamar v. State, 415 S.W.2d 926.

Three grounds of error are urged by appellant in his brief filed with the clerk of the trial court.

In his first ground, appellant insists that the court erred in permitting the state to introduce in evidence a pistol and several packages of cigarettes taken from an automobile, in which he was riding, by a deputy sheriff of Andrews County, while acting in Martin County, without an arrest or search warrant.

It is appellant’s contention that the deputy sheriff was without legal authority to make the arrest outside his own county.

The arrest of appellant and his companion Lamar and the recovery of the pistol and cigarettes from the car in which they were riding was held by this court to be lawful, in affirming the codefendant’s conviction in Lamar v. State, supra. The facts and circumstances of the arrest and recovery of the articles are set out in the opinion.

In addition to the facts shown in the opinion, it should be pointed out that appellant was jointly arrested by deputy sheriff Frank Williams and Texas highway patrolman Wilson. The highway patrolman, as a peace officer in this state (Art. 2.12, Vernon’s Ann.C.C.P.), was, under the facts, authorized by Art. 14.04, V.A.C.C.P., to arrest appellant without a warrant. Under Arts. 4413(11) and 4413(12), V.C.S., a highway patrolman is authorized to make an arrest in any county of this state.

The ground of error is overruled.

In his second ground of error, appellant complains of the court’s failure to instruct the jury, under Art. 38.23, V.A. C.C.P., that if they believed the evidence was obtained by Officer Williams in violation of any provision of the Constitution or laws of the United States or of this state they should disregard such evidence.

No objections to the charge or requested charges were presented by appellant. In the absence thereof, his complaint to the charge is not before us for review. Arts. 36.14 and 36.15, V.A.C.C.P.; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841.

Appellant’s remaining ground of error is that the court erred in failing to quash the jury selected in the case because the father of the county attorney was one of the jurors.

The record reflects that, during the voir dire examination of the jury panel, County Attorney Dee Jon Davis was seated at the counsel table with the district attorney. The county attorney did not participate in the examination but the panel was informed by the district attorney that he would participate in the case. On voir dire examination, appellant’s counsel did not inquire if any member of the panel was related to the county attorney, but before exercising his challenges he was informed that the county attorney’s father, Paul D. Davis, was on the panel. After the state and appellant had exercised their challenges, Paul D. Davis was one of the jurors selected to serve on the case. Before the jury was sworn, the county attorney announced in the jury’s absence that he would no longer participate in the prosecution and would not sit in the courtroom. At such time, the court extended to appellant one additional peremptory challenge, which appellant exercised on the juror Roe K. Fulgham. Appellant then moved to quash or disqualify the jury panel because the county attorney’s father was on the panel, which motion was by the court overruled. Thereupon, the twelve jurors selected in the case were sworn and appellant again moved to quash the jury selected and also moved for a mistrial because the county attorney’s father was on the jury. Both motions were by the court overruled.

While the juror Davis was subject to a challenge for cause, under Art. 35.16 (c) 1. of the Code, appellant did not challenge him for cause and it appears that he waived his right to so challenge the juror.

Reynolds v. State, 163 Tex.Cr.R. 496, 294 S.W.2d 108, cited by appellant, is not here controlling, because in that case the defendant made a challenge for cause to a juror who was the wife of the prosecutor in the case, and the challenge was overruled.

There is no showing that the county attorney participated in any way in the present case after the jury was empaneled and sworn.

The ground of error is overruled.

The judgment is affirmed.