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

text:
    Frances GIPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39375.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Rehearing Denied June 15, 1966.
    Phenix, Keeling & Wilder, by C. A. Keeling, Henderson, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for assault with intent to murder without malice; the punishment, two years in the penitentiary.

The sufficiency of the evidence to support the conviction is challenged by appellant on the ground that the proof fails to show that she had the specific intent to kill the injured party.

It was undisputed that on the night in question the appellant and her husband committed an assault upon Mrs. Lerah Wicks, the injured party. It appears that the parties had been friends for several years but that prior to the date of the assault Mrs. Wicks, on occasions, had complained to appellant that her husband was going with the injured party’s daughter.

Mrs. Wicks testified that on the night in question, in response to a telephone call from her daughter, she left her home and went to a service station in New London. In a very few minutes an automobile was driven up. Appellant got out, came to the injured party’s automobile and asked her to get out, saying: ‘“I want to talk to you.’ ” After the injured party declined to get out, Mr. Gipson appeared on the scene and jerked her out of the car onto the pavement. Mrs. Wicks testified that she was then assaulted by appellant and her husband until she became unconscious. She stated that in the assault she was kicked in the head, side, and legs by the husband and that she saw a metal instrument in appellant’s hand with which she dug into the injured party’s left eye and cut her on the head and back. While the assault was being committed, appellant’s husband said: “ ‘If you don’t beat the hell out of that bitch, I am going to kill you.’ ” Mrs. Wicks also testified:

“And the last thing I remember was they said, ‘Oh, there is a car light, a car coming,’ and then one of them stomped me in my left side.”

A metal can opener was found at the scene after the assault.

It was further shown that after the assault the injured party was taken to a hospital in Henderson, where she remained twelve days and was treated for her injuries by Dr. H. A. Suehs.

Dr. Suehs testified that when he first saw Mrs. Wicks in the hospital “her face was covered with blood due to a laceration to the left side of her forehead and her supraorbital ridge and also in her upper eyelid, and multiple scratches and abrasions all over her face and body and arms.” He stated that his admitting diagnosis was: “Mild cerebral concussion, contusion to the left forehead, laceration of the left eyebrow and left upper lid, contusion of the left abdomen with hematoma formation,” and that he later added to the diagnosis: contusion of the left kidney, which was the result of a forceful blow. The doctor described the various abrasions, contusions, and scratches on the injured party and stated that she had received “quite a few” violent blows to the body. It was his medical opinion that the eye injury was produced by a blunt object. An x-ray of the chest revealed a possible fracture of the left tenth rib and some small areas of collapse of the lungs. Dr. Suehs further stated that, while he did consider Mrs. Wicks’s injuries serious and they could have produced death “if they had continued,” he never did place her on the critical list and he did not think she was going to lose her life. The doctor also stated that she could have lost her life if she had developed an infection, superimposed upon the injuries, but that infection did not develop.

Appellant admitted engaging in the fight with the injured party and having a “beer opener” in her hand at the time but she denied that she had any intention to kill.

Appellant insists that the evidence is insufficient to show a specific intent to kill, under the rule stated in Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744, wherein this court said:

“The specific intent to kill is an essential element of the offense of assault with intent to murder. Art. 1160, P.C., Vernon’s Ann.P.C., Art. 1160. Such intent may be inferred when the instrument used in committing the assault is a deadly weapon. If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and cir-eumstances. If it is possible that death might have been inflicted by the weapon used, and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. Branch’s P.C., § 1636; Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W.2d 802, 1016; Basquez v. State, 114 Tex.Cr.R. 602, 26 S.W.2d 206; Rose v. State, 123 Tex.Cr.R. 261, 58 S.W.2d 526.”

While the weapon used by appellant in the instant case was not a deadly weapon per se, the surrounding facts and circumstances are sufficient to show an intent to kill. The evidence shows a joint assault committed upon Mrs. Wicks by appellant and her husband. Mrs. Wicks was sixty-two years of age on the day of the assault. Appellant was thirty-nine years old. Violent blows were inflicted upon Mrs. Wicks. The injuries inflicted were serious.

The evidence is sufficient to show that appellant and her husband were acting together in the assault. The court charged the jury on the law of principals. The jury was, under all the facts and circumstances, warranted in finding that appellant had the specific intent to kill. The evidence is sufficient to sustain appellant’s conviction as a principal. See: Jennings v. State, Tex.Cr.App., 367 S.W.2d 670.

We have considered the cases of Barnes v. State, 172 Tex.Cr.R. 303, 356 SW.2d 679, and Blount v. State, Tex.Cr.App., 376 S.W.2d 844, and conclude that, under the facts, they are distinguishable from the case at bar.

The judgment is affirmed.

Opinion approved by the court.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant concedes. that she was guilty as a principal, but contends that the offense which she committed was aggravated assault and not assault with intent to murder. Reliance is had especially on the opinion of the majority in the recent case of Blount v. State, Tex.Cr.App., 376 S.W.2d 844. While we concluded in our original opinion that Blount was distinguishable from the instant case, we shall point out a few additional facts. In Blount the attacker was acting alone, was 52 years old and weighed 175 pounds, while the victim was 34 years old, weighed 210 pounds and ultimately subdued the accused. In the case at bar the record reflects that the appellant was actively assisted in her attack upon the injured party by her six feet three inch tall husband, who weighed 224 pounds, and that the attackers desisted only when they saw the lights of an approaching automobile.

In addition to the specific injuries set forth originally, this record reveals that the injured party suffered a severe contusion of the buttocks, a sprained and contused shoulder, contusions on her legs and chest, two black eyes and an abrasion behind the right ear, and that a urinalysis showed a large quantity of fresh blood in her urine.

These facts in addition to those set forth originally are sufficient to show serious multiple wounds and distinguish the two cases.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

To that portion of the majority opinion on appellant’s motion for rehearing which attempts to distinguish Blount v. State, Tex.Cr.App., 376 S.W.2d 844, I respectfully dissent.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Opal Lou HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 39715.
    Court of Criminal Appeals of Texas.
    June 15, 1966.
    Michael Everett, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Stauf-fer, Scott Bradley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft with a prior conviction for an offense of the same nature alleged for enhancement; the punishment, 10 years.

Trial was had and judgment was rendered on December 7, 1965. The order overruling appellant’s motion for new trial in which notice of appeal was noted was dated January 14, 1966. Appellant did not comply with Sec. 9 of Art. 40.09, Vernon’s Ann.C.C.P. (1965), in that she did not file her brief in the trial court pointing out the grounds of error of which she desired to complain on appeal. Further, we find no approval of the record by the trial court as provided by Sec. 7 of Art. 40.09, V.A.C.C.P. (1965).

We have examined the record and have concluded that the two questions attempted to be raised in her brief filed in this Court are not of constitutional dimensions nor do they present a serious question of law, so as to require a discussion thereof in this opinion under Sec. 13 of Art. 40.09, V.A.C.C.P. as unassigned error.

The judgment is affirmed.


text:
    Robert William HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 39713.
    Court of Criminal Appeals of Texas.
    June 15, 1966.

      Ed-. M. Brown, Dallas, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment, 98 years.

Trial was begun on November 3, and judgment was rendered on November 7, 1965. Notice of appeal was given on December 16, 1965. This opinion will be prepared under the statutes in effect prior to January 1, 1966.

Eva Merle Sneed testified that she, her husband, who was later killed, and her step sister, Robbie Smith, repaired to the Adult Lounge, where they enjoyed the beer and the entertainment. Shortly after their arrival appellant approached their table and asked to speak to Robbie, which request Mrs. Sneed declined. Appellant stated that he wanted to hear the denial of his request from Robbie’s lips, and Robbie then stated that she did not wish to speak with appellant. At this juncture Mrs. Sneed’s husband instructed appellant to leave their table; appellant slapped him, and when he rose from his chair, appellant shot him with a pistol. The deceased grappled with appellant momentarily, and when the bartender separated them, deceased made his way out of the lounge where he fell and there remained until an ambulance arrived. He was taken to the hospital where he died from gun shot wounds.

Appellant testified that he had lived with Robbie for approximately six months until she became pregnant and they had a quarrel, and that she had returned to the Sneed home from whence he had gotten her. He stated that on the night in question he armed himself because of his fear of deceased, who had threatened his life when he tried to visit Robbie after her return to the Sneed house. He stated that when he went to the Sneed table at the Adult Lounge the deceased told him he could not talk to Robbie, jumped up and put his hand in his pocket, whereupon, he shot deceased and then shot him again while they were struggling on the floor.

Appellant’s claim of self defense was submitted to the jury and by them rejected, and we find the evidence sufficient to sustain the conviction.

We shall discuss the contentions raised by brief and in argument. It is contended that the court erred in sustaining the State’s objections to two questions relating to deceased’s reputation. There is no showing as to what the witnesses’ answers to the questions would have been, and therefore no error is shown. Solomon v. State, 162 Tex.Cr.R. 374, 285 S.W.2d 755, Mosley v. State, 172 Tex.Cr.R. 12, 352 S.W.2d 847, and cases there cited.

Appellant next contends that the court erred in refusing to grant his motion for new trial. The alleged newly discovered evidence was obtained from the witnesses Arelious Riley, Clyde Carter and Edwin Bright as to the violent character of deceased, and his propensity to carry out a threat which he had made. Bright testified at the trial; Riley was present in the court at the time of trial and was interviewed by attorneys representing appellant, and Carter was at the Adult Lounge on the night of the homicide, and by the exercise of reasonable diligence his testimony might have been secured at the trial.

In Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, this Court went to some length in discussing the necessity for establishing diligence in securing the attendance of the witnesses at the trial, and we have concluded it is determinative of appellant’s contention in the case at bar. An accused may not secure a new trial by the stratagem of failing to call a witness whose identity and knowledge of his case were known or by the exercise of reasonable diligence might have been known prior to trial.

No reversible error appearing, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Larry Earl RENO, Appellant, v. The STATE of Texas, Appellee.
    No. 39639.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied June 25, 1966.

      Mike Barclay, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Jr., Frank W. Watts, Kenneth E. Blas-singame and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is robbery by assault; the punishment, enhanced under Art. 62 P.C. by a prior conviction for the offense of burglary with intent to steal, life.

Appellant’s second amended motion for new trial was overruled, sentence was pronounced and notice of appeal was given on July 1, 1965.

The statement of facts reflects that appellant was identified as the man who entered the lobby of the Wynnewood Hotel, in Dallas County, about 3:30 A.M. on Sunday, January 24, 1965; assaulted the night clerk, Leon Williams, and said: “I want your money”; took $90.25 out of the cash drawer and drove away in a car after ordering the night clerk to wait outside for ten minutes.

The record reflects that Officer J. H. Gardner, while on duty about 3:40 A.M., observed a speeding car, gave chase and finally overtook the car and arrested appellant, the driver, who threw up his hands and dropped $91.69 in money.

Appellant’s identity as the defendant in the prior conviction for burglary alleged in the indictment was proved by certified copies of the indictment, judgment, revocation of probation, and sentence and testimony of an expert from comparison of fingerprints.

Appellant did not testify and no witnesses were called in his behalf.

In appellant’s brief two propositions of law are presented as ground for reversal.

It is contended that the trial court abused his discretion in failing to grant appellant a new trial “based on the jury’s misconduct of having discussed, considered, and based their judgment on appellant’s failure to take the witness stand and testify in his own behalf.”

Appellant’s second amended motion for new trial, filed July 1, 1965, alleged that the jury considered the fact that appellant failed to testify and that by virtue thereof resolved that he was guilty.

The motion was not sworn to or supported by affidavit other than the affidavit of one of the jurors previously filed which was sworn to before one of appellant’s attorneys.

A motion alleging that something improper transpired within the jury room must be supported by affidavit of a juror, or some other person who was in position to know the facts, before it is sufficient as a pleading. Brown v. State, 160 Tex.Cr.R. 150, 267 S.W.2d 819, cert. denied, 348 U.S. 888, 75 S.Ct. 210, 99 L.Ed. 698; Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 988; Pierce v. State, 160 Tex.Cr.R. 646, 274 S.W.2d 408; Graves v. State, 169 Tex.Cr.R. 595, 336 S.W.2d 156, and cases cited.

Such an affidavit sworn to before one of appellant’s attorneys cannot be considered. Ferguson v. State, 159 Tex.Cr.R. 169, 261 S.W.2d 721, and cases cited; Reeves v. State, 145 Tex.Cr.R. 208, 167 S.W.2d 176, and cases cited.

The trial court did not abuse his discretion in overruling the motion for new trial.

Appellant’s remaining claim for reversal relates to the portion of the indictment alleging the prior conviction, the contention being that informing the jury of such prior conviction infringed his right to an impartial jury trial.

Consistent with our many prior opinions, we overrule such contention. Taylor v. State, Tex.Cr.App., 398 S.W.2d 559; Eldred v. State, Tex.Cr.App., 396 S.W.2d 142; Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393, and cases cited.

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

The judgment is affirmed.


text:
    Robert THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39671.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied June 25, 1966.
    Mike Barclay, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kenneth Blas-singame, Mike Everett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery; the punishment, life.

Witness Bloom, proprietress of Bloom’s Pharmacy in the City of Dallas, stated that on the day in question the appellant, in company of another Negro male, entered the pharmacy and proceeded to the prescription room. Appellant’s companion, armed with a pistol, ordered her to open a cabinet in the prescription room; she complied, and the two men began to rifle the drawers of the cabinet. While his companion held Mrs. Bloom and the two store pharmacists at gunpoint, appellant went to the front of the store and attempted to open the cash register. When he was unable to effectuate this purpose, Mrs. Bloom was ordered to open the cash register for him, at which time she activated the silent burglar alarm. Thereafter, appellant’s companion forced her to open the store safe, and after rifling it, he ordered her to lie down. She stated that he then ripped her underclothes off, held the pistol to the .side of her head and told her to spread her legs. According to her testimony the appellant then came up stating that he couldn’t open the money order register, at which time she was ordered to open it. She complied and then ran into the prescription room, where she lay down by the two pharmacists until she heard the door close.

The testimony reflected that approximately $900 was taken from the pharmacy.

Mrs. Bloom’s testimony was corroborated by Pharmacists Gamble and Castiloon, both of whom identified the appellant as being one of the two men involved. Witness Castiloon testified that at the time appellant’s companion attacked Mrs. Bloom, the appellant was standing by the cash register some IS or 16 feet from the scene of the attack.

The testimony of Officer Griffin, who answered the silent burglar alarm call, revealed that when appellant was arrested fleeing from the scene, he had a white paper sack in his hand containing $32.10 in change and $32.00 in currency in his front pocket.

Appellant’s confession was introduced in evidence wherein he recounted that he and his companion decided to “hit” the pharmacy and admitted getting a white sack from under the counter and the money from the cash register. The statement also reflected that he observed his companion attempting to remove Mrs. Bloom’s panties.

We find the evidence sufficient to support the conviction.

On appeal appellant argues that the statements made by his companion to Mrs. Bloom relative to the attempted attack upon her were inadmissible as hearsay. Appellant objected on the grounds that the statements were made outside his presence.

Appellant’s confession reveals that the attack was made in his presence. It also recites that his companion was speaking to him as he was trying to remove Mrs. Bloom’s panties. The testimony of the pharmacist placed appellant within 16 feet of the scene of the incident.

The testimony of Mrs. Bloom was to the effect that appellant and his companion successfully sought to have her open the money order box subsequent to the attempt to molest her.

We conclude that these facts were sufficient to warrant the admission of the co-conspirator’s statements to Mrs. Bloom uttered during the commission of the conspiracy to rob her.

No reversible error appearing, the judgment is affirmed.


text:
    Boyd Thomas MAHON, Appellant, v. The STATE of Texas, Appellee.
    No. 35422.
    Court of Criminal Appeals of Texas.
    June 15, 1962.
    See also Tex.Cr.App., 403 S.W.2d 803.
    Hattie E. Briscoe, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is the unlawful sale of marihuana ; the punishment, 12 years.

On March 6, 1963, the appeal from said conviction was abated and all further proceedings were suspended until appellant became sane, he having been found insane by a jury while the appeal was pending. Mahon v. State, Tex.Cr.App., 365 S.W.2d 162.

It is now made to appear that on May 26, 1966, appellant was duly declared sane by a jury impaneled in the trial court and appellant has filed his affidavit stating that he does not wish to further prosecute his appeal.

The appeal is dismissed.


text:
    Boyd Thomas MAHON, Appellant, v. The STATE of Texas, Appellee.
    No. 35423.
    Court of Criminal Appeals of Texas.
    June 15, 1962.
    Hattie E. Briscoe, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is the unlawful sale of marihuana; the punishment, 15 years.

As in the case of Mahon v. State, Tex.Cr.App., 403 S.W.2d 802 the appeal was abated on March 6, 1963. Mahon v. State, Tex.Cr.App., 365 S.W.2d 163.

Appellant having now been declared sane by a jury, and having filed his affidavit stating that he does not wish to further prosecute his appeal in this cause, the appeal is dismissed.


text:
    Ex parte Percy MORGAN.
    No. 39668.
    Court of Criminal Appeals of Texas.
    June 8, 1966.

      Bill D. Wood, Tyler, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

Charged by indictment with the offense of rape, in Cause No. A-9211 in the District Court of Collin County, petitioner’s request for a jury trial on the issue of insanity was granted and the jury found (1) that he was sane on March 3, 1961, the time the offense was alleged to have been committed, and (2) was insane at the time of the trial (June 13, 1961).

Upon motion of the County Attorney, the trial judge on the same day entered judgment disregarding the jury’s finding that the defendant was insane and adjudged him sane, and on June 14, 1961, petitioner was tried on his plea of nolo contendere and was found guilty by a jury and his punishment assessed at life.

Judgment having been entered and sentence pronounced, petitioner is confined in the State Department of Corrections and in this original habeas corpus proceeding attacks such conviction as void.

The state’s motion alleged that at the hearing which resulted in the jury’s verdict finding that petitioner was presently insane there was no “competent medical or psychiatric testimony” and the court could not therefore comply with the statute which required that he “enter an order committing the defendant to a State mental hospital and placing him in the custody of the sheriff for transportation to a State mental hospital to be confined therein until he becomes sane,” (Art. 932b Vernon’s Ann. C.C.P.) because Section 8 of said Article provides: “No person shall be committed to a mental hospital under this Chapter except on competent medical or psychiatric testimony.”

The trial court found that there was no competent medical or psychiatric testimony stating that the defendant was ever insane at any time and that there was no evidence to raise such issue or to sustain the finding of the jury thereon.

The trial judge having granted the request for a separate trial, and having submitted the issue, and the jury having found that the defendant “is insane now at the time of this trial,” we are aware of no authority under which the court could disregard such jury finding and render a judgment finding the defendant sane.

Art. 34 P.C. provides, in part:

“No person who becomes insane after he committed an offense shall be tried for the same while in such condition.”

We are not unmindful of the dilemma faced by the court in regard to the commitment of the defendant.

The effect of the jury’s finding was that, because of insanity, appellant was unable to prepare a defense to the main charge and could not be tried while in such condition. Under the terms of Art. 932b, Secs. 1(b) and 5, V.A.C.C.P., the jury’s finding that petitioner was presently insane required that the court enter an order committing him to a state mental hospital to be confined therein until he becomes sane, and that all further proceedings in the case against him shall be suspended until he becomes sane.

However, Section 8 of said Art. 932b (and Section 9 of Art. 46.02 C.C.P.) provides: “No person shall be committed to a mental hospital under this Chapter except on competent medical or psychiatric testimony,” and the Constitution of Texas, Art. 1, Sec. 15-a, Vernon’s Ann.St., has a like provision concerning commitment as a person of unsound mind.

The question of the commitment of the defendant found to be presently insane is separate and apart from that of whether his trial was barred by the jury’s finding that he was presently insane under Art. 34 P.C.

The problem as to what shall be done with an accused person when he has been adjudged insane and not mentally competent to make a rational defense, and there is no specific provision in the Code of Criminal Procedure for his commitment to a mental hospital, is not new and has not been eliminated by the 1965 Code.

The provision of Art. 34 P.C. “No person who becomes insane after he committed an offense shall be tried for the same while in such condition,” was a part of the Penal Code in 1874 when the Supreme Court of Texas, in Guagando v. State, 41 Tex. 626, held that it gave the defendant the right to have his mental competency to make a rational defense determined before proceeding with the trial for the offense charged, and that a trial of insanity after conviction cannot relate back and supply the omission.

The Supreme Court recognized that the procedural statutes had reference to insanity raised after conviction, which was “entirely distinct.”

Thereafter this court, in Wilson v. State, 67 Tex.Cr.R. 369, 149 S.W. 117, (decided 1912) pointed out that there was no express statutory provision for what shall be done with an accused person when he has been adjudged insane before conviction and concluded that the district court had the power, authority and duty to follow in substance and spirit the articles of the Code of Criminal Procedure which lay down what shall be done when the defendant is tried and adjudged insane after conviction.

Chase v. State, 41 Tex.Cr.R. 560, 55 S.W. 833, decided in 1900, was an appeal from a murder conviction. Prior to such trial, the district judge “was induced” to impanel a jury to try Chase as to his mental capacity to commit crime or to be tried therefor, and the jury so impaneled held that he was of unsound mind and he was released on bail. Subsequently, “the learned judge” set aside this order and Chase was placed on trial.

The court appointed two able lawyers to defend Chase, a deaf mute, and the case was tried on a plea of not guilty entered for him by the court.

In the opinion affirming the conviction is found what may be said to be a forerunner of the procedure authorized by present Art. 46.02 C.C.P.

Referring to the statute which later became Art. 34 P.C., 1925, the court said:

“So far as we are advised, however, the statute does not mark out any course of procedure as to a person who becomes insane after he commits an offense, except it says he shall not be tried for the same while in such condition. We might, by analogy to the procedure adopted with reference to the trial of this question of insanity after conviction and before sentence, deem it proper to pursue that method of trial. And it seems the court in this instance undertook to pursue that method. But this would not be the sole method of the trial. This issue could be submitted to the jury under the plea of not guilty (Code Cr.Proc. art. 974), and the jury instructed to determine the issue of insanity in the first instance, and, if they determine defendant was insane at the time of the trial, to return such special verdict; and in such case appellant could not be tried until he had become sane, or at least put on trial again. This issue would have to be passed on by the jury again. * * * Now, if we concede appellant had formerly been put on trial on the issue that he had become insane after he committed the offense, and could not be tried, this would not operate as a final judgment on the status of appellant, but he could be put on trial again on this issue. And this is what we understand was the course which the court pursued in this matter. By this action he was not deprived of any right to which he was entitled under the law.”

While this holding was declared in Wilson v. State, supra, to be dicta, we conclude that together with present Art. 46.02 C.C.P. it furnishes a guide whereby the question of whether appellant is presently sane may be adjudicated upon the verdict of a jury and if he is found to be sane he may be tried for the offense of rape charged in the indictment.

Petitioner’s application for writ of ha-beas corpus is granted and it is ordered that he be released from further confinement under the judgment of conviction on his plea of nolo contendere, and that he be delivered to the Sheriff of Collin County to answer the indictment in Cause No. A-9211 in the District Court of Collin County charging him with the offense of rape.


author: BELCHER, Commissioner.

text:
    Ex parte Lee Alton NELSON.
    No. 39730.
    Court of Criminal Appeals of Texas.
    June 15, 1966.
    John H. Regner, S. John Odom, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

Relator, an inmate of the Texas Department of Corrections, presented to this court an original application for habeas corpus alleging that upon his trial before the court upon his plea of guilty no evidence was introduced showing his guilt, and he was not advised of his right to appeal.

The record of the evidence offered in the trial court after both the state and relator had announced ready for trial on September 2, 1964, is before us.

The record of the evidence reveals, in addition to the findings in the judgment, that the appellant was duly admonished as to his plea of guilty before it was accepted.

It also reveals that the companion case against Ray Adams was tried on August 26, 1964, in the same court and before the same trial judge that tried the relator.

The statement of facts in this cause reflects that the relator and his counsel and the state agreed and stipulated upon the trial that the trial court could consider, among the other evidence introduced, the evidence submitted in said companion case of the State v. Ray Adams; that the witnesses, Mrs. Paul Bishop, Judy Bishop, the complaining witness, and A. D. Holbrook, Mrs. Wood, and Dr. Gardner, would testify, if present, to substantially the same facts as in the trial of Ray Adams in said court on August 26, 1964. Ex parte, Lyles, 168 Tex.Cr.App., 323 S.W.2d 950.

The record reveals that after said agreement and the submission of the evidence the state recommended that six years be assessed as the punishment and that appellant’s counsel in open court joined in the recommendation.

After the court found the appellant guilty and assessed his punishment at six years, the appellant waived the time within which to give notice of appeal and sentence was pronounced on September 2,1964.

The evidence fails to support the allegations in appellant’s application for the writ of habeas corpus.

It is concluded that the evidence submitted upon the trial was sufficient to support the plea of guilty.

The writ of habeas corpus is denied.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Theodore R. XANTHULL, Appellant, v. The STATE of Texas, Appellee.
    No. 39577.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Rehearing Denied June 25, 1966.
    See also 172 Tex.Cr.R. 481, 358 S.W.2d 631.

      Crouch & Ferguson, by Paul F. Ferguson, J. David Gooch, Alvin, for appellant.
    Tom Kenyon, Dist. Atty.,. Wallace N. Shaw and Ogden Bass, Asst. Dist. Attys., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is burglary; the punishment, six years.

The indictment charged the burglary of a house occupied and controlled by G. M. Shepard.

Shepard, the prosecuting witness, testified that he was yard manager for the Griesenbeck Lumber Company in the city of Angleton. On Saturday, September 25, 1965, the witness closed the business at noon for the week-end. All windows and doors to the building were locked. When he returned on Monday morning it was discovered that, without the witness’s consent, the building had been broken into and the place burglarized. One of the windows in the building was broken and a door was open. Inside the building the cash drawer had been prized open and tools were scattered over the floor. Among the tools was a hammer belonging to the company, which hammer was introduced in evidence as state’s exhibit #1. $11.40 was missing from the cash drawer.

Deputy sheriff Andy DeSham testified that he went to the lumber company building on the morning of September 27 and, in his investigation, found the hammer (state’s exhibit #1) behind a counter. The deputy testified that he was in charge of the identification section of the sheriff’s office and that a part of his work was the classification of fingerprints. He related in detail his education, training, and experience in the field of fingerprints and stated that in the course of his investigation of the burglary he photographed a palm print on the hammer. He stated that he had made a comparison of the print with a palm print of the appellant, and expressed his opinion that the print on the hammer was the palm print of appellant.

On September 27, 1965, appellant made and signed a written statement to deputy sheriff A. J. Schamerhorn, in which statement appellant admitted having committed the burglary by breaking and entering the building on the night of September 26, 1965.

The confession was admitted in evidence by the court as state’s exhibit #3 after testimony was presented, both in the absence of the jury and in the jury’s presence, relative to its execution and voluntary nature.

At such hearings, deputy sheriff Scham-erhorn testified that on September 27, 1965, appellant freely and voluntarily made the confession after having been by the witness duly warned. The officer testified that appellant first made the statement to him orally. The two then went to another office, where appellant dictated the statement to a secretary who typed it. While the statement was being dictated by appellant and transcribed by the secretary, deputy Schamerhorn was in and out of the office. After the statement had been transcribed, appellant signed it. Later, the statement (state’s exhibit #3) was typed on another form and signed by appellant.

The court, in his findings of fact duly entered of record, certified that appellant freely and voluntarily made the confession to officer Schamerhorn after having been duly warned.

Appellant did not testify before the court or the jury upon any issue in the case.

Appellant predicates his appeal upon seven formal bills of exception.

We first overrule bill #1, which complains of the court’s refusal to instruct a verdict of not guilty. The evidence is sufficient to support the jury’s verdict finding appellant guilty of the offense charged.

By bill #2, appellant insists that reversible error was committed when he was brought into court in jail clothing. In support of his contention appellant relies upon certain decisions by this court in cases where the accused was brought into court in handcuffs.

In these cases, such practice has been condemned but held to be within the sound discretion of the trial court, subject to the closest scrutiny and review by this court. Mouton v. State, 155 Tex.Cr.R. 450, 235 S.W.2d 645.

The bill of exception certifies that “before any proceedings were had, and before the Court’s charge was read to the jury,” appellant was brought into court in coveralls, issued to county prisoners with lettering on the back identifying the garments as county jail issue, and that “before said proceedings were initiated” in the cause his counsel “approached the bench” and objected to the manner in which appellant was clothed. While the bill certifies the reasons assigned by appellant as a basis for his objection and that the objection was overruled, it does not certify to facts sufficient to show injury or prejudice to appellant. No error is presented by the bill. Clark v. State, Tex.Cr.App., 398 S.W.2d 763; Mouton v. State, supra.

By bill of exception #3, appellant complains that the court erred in permitting deputy sheriff DeSham to express his opinion that it was appellant’s palm print on the hammer, over the objection that he had not been shown to be qualified as an expert on palm prints.

Deputy sheriff DeSham testified fully as to his training and experience in the classification of fingerprints and was shown to be qualified as an expert in that field. Stevenson v. State, Tex.Cr.App., 395 S.W.2d 626. He further testified that palm prints were akin to fingerprints and were a series of friction ridges “biologically the same as the bulbar ridge on the end of the finger.” Under the record, the court did not err in permitting him to testify as an expert on palm prints.

By bills of exception #4 and #6, appellant insists that the court erred in admitting his written confession in evidence (state’s exhibit #3) because (1) it was not taken by the person named therein and (2) it was signed without his having been given the statutory warning.

We find no reversible error in the bills.

Under the record, the confession was shown to have been made to deputy Schamerhorn, the person named therein, and not to the secretary who merely reduced it to writing. Sutton v. State, 166 Tex.Cr.R. 580, 317 S.W.2d 58; Brionez v. State, 168 Tex.Cr.R. 9,323 S.W.2d 459.

While only one warning was given to appellant, it appears that both statements were made to Officer Schamerhorn and were signed by appellant in view of the officer’s warning. This was sufficient to authorize their admission in evidence. 24 Tex.Jur.2d 264-265, Sec. 662. The first statement signed by appellant was drawn under Art. 727 of the Code of Criminal Procedure of 1925 and the last statement (state’s exhibit #3), which was signed on the same day or following day, was drawn under the provisions of Art. 38.22 of the 1965 Code of Criminal Procedure. State’s exhibit #3 was not, in fact, another confession but except for form was substantially the same as the statement first signed by appellant, which was not introduced in evidence by the state.

It should be pointed out that in his charge the court instructed the jury not to consider the confession introduced in evidence unless they believed from the evidence beyond a reasonable doubt that it was freely and voluntarily made by appellant after having been duly warned by the person to whom it was given. The jury were further charged that they could not convict appellant solely upon his confession but that the same must be corroborated by other evidence in proof of the corpus delicti.

By bill of exception #5, appellant insists that the court erred in admitting in evidence state’s exhibit #1, which was the hammer that deputy sheriff DeSham testified he found at the lumber yard office after the burglary. Appellant’s objection was on the ground that the proper predicate had not been laid because it had been outside the care, custody, and control of the officer prior to the time it was introduced in court.

The deputy identified the exhibit as the hammer which he found at the lumber yard and stated that it had been in his possession until he brought it to court on the day of the trial. While he admitted it had been out of his sight after he brought it to court, his identification was sufficient to authorize its admission in evidence. The bill is overruled.

Appellant’s remaining bill of exception, #7, complains that the court erred in refusing to grant a mistrial when the district attorney, during his interrogation of deputy sheriff DeSham relative to his qualification as a finger and palm print expert, asked: “State whether or not you have attended any courses concerning the operation of a polygraph,” and the witness answered: “Yes, sir, Texas A. & M. University, six weeks.”

The record reflects that upon objection being made by appellant, the jury was instructed by the court not to consider the reference to a polygraph. There was no further mention of a polygraph. We perceive no reversible error in the bill.

The judgment is affirmed.

Opinion approved by the court.


author: DENTON, Chief Justice.

text:
    COMBINED AMERICAN INSURANCE COMPANY, Appellant, v. William E. JORDAN, Appellee.
    No. 7601.
    Court of Civil Appeals of Texas. Amarillo.
    March 28, 1966.
    Rehearing Denied June 13, 1966.
    Gordon Treadaway, Lubbock, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
    Kirby & Ratliff, Littlefield, for appellee.
   DENTON, Chief Justice.

William E. Jordan, Appellee, sued Combined American Insurance Company, Appellant, for benefits under an accident, hospitalization and indemnity insurance policy issued by appellant to appellee. Under the provisions of the policy, stated benefits were recoverable “against loss resulting directly and independently of all other causes from accidental bodily injuries * * . * and which loss or injuries are in no way caused or contributed to by diseases”. The trial court, without a jury, rendered judgment for appellee upon the insurance policy and a dividend certificate thereto for benefits totaling $1,090.00 plus $130.00 statutory penalty and $500.00 attorneys’ fees.

Upon appellant’s request, the trial court filed findings of fact and conclusions of law. The material findings and conclusions were:

“FINDINGS OF FACT
“1. That on or about the 6th day of October, A.D. 1964, Plaintiff W. E. Jordan * * * sustained an accidental
bodily injury, in which a volvulus of his small intestine resulted from intra-ab-dominal pressure attendant upon the effort of lifting a machine component upon which he was working at the time, resulting in loss to said Plaintiff.
2. That such accidental injury was the immediate and precipitating cause of the loss sustained by said Plaintiff.
3. That intra-abdominal adhesions present in the body of said Plaintiff prior to and at the time of such accidental injury constituted a remote cause of the loss sustained by said Plaintiff.
CONCLUSIONS OF LAW
1. That said Defendant’s policies of insurance in question, received in evidence as Plaintiff’s Exhibits 3 and 4, are construed to afford coverage against loss of which the precipitating and immediate cause is an accidental injury, and coverage is not avoided if disease or some other condition of the body constitutes a remote cause of such loss.”

Appellee was a 68 year old man employed by his son, who was a farm implement dealer. On October 6, 1964, he was mounting a boll puller on a tractor and strained himself lifting the machine. He immediately complained of a hurting in his stomach and six days later Dr. Maurer performed an operation upon him. He was found to be suffering from a volvulus condition described as a twisting of the small intestine. Dr. Maurer had previously performed surgery on appellee on March 3, 1962 and on August 3, 1964. At the time of the first operation appellee had cancer of the transverse colon and a portion of the colon was removed. At.the time of the second operation in August, 1964, another primary cancer was found to be located in the sigmoid colon and again a resection of the colon was performed. During the October, 1964 operation, Dr. Maurer found an “abundance of adhesions” on appellee’s small intestine. Both Dr. Maurer and Dr. Still, another medical witness who had not examined appellee, described adhesions as scars or scar tissue caused by the healing process. They also described adhesions as a disease or a condition caused by disease as distinguished from trauma from external injury.

The coverage under the policy was limited to loss resulting “independently of all other causes” and “no way caused or contributed to by disease”. It is undisputed that ap-pellee, as a result of the two previous major operations, had an abundance of adhesions in his abdominal cavity. The question is whether recovery can be had under the limitations of the policy when the incapacity was caused by an injury and a pre-existing disease or condition. Appellee concedes by brief that he had a pre-existing condition of an abundance of adhesions which made him more susceptible to vol-vulus. He contends that the law in Texas is that under accident insurance policies where the cause of injury must be independent of all other causes; a pre-existing condition which makes the insured more susceptible to the injury or constitutes a remote cause of the loss does not prevent recovery. In support of this contention, appellee cites: International Travelers’ Ass’n. v. Dixon (Tex.Civ.App.) 283 S.W. 681. Pyramid Life Insurance Co. v. Alexander (Tex.Civ.App.) 337 S.W.2d 813 (Ref. N.R.E.). McVeigh v. International Travelers Assur. Co. (Tex.Civ.App.) 101 S.W.2d 644 (Writ Dis.). The language in these cases which seemed to support appellee’s contention was specifically disapproved by the Supreme Court in the recent cases of Mutual Benefit Health and Accident Ass’n. v. Hudman, 398 S.W.2d 110 (1965). Other cases relied on by appellee, such as: Home Ben. Ass’n. of Paris, Texas v. Smith (Tex.Civ.App.) 16 S.W.2d 357 (Writ Ref.) and Pledger v. Business Men’s Accident Ass’n. of Texas (Com.App.) 228 S.W. 110, are not applicable to the question presented here. These cases allowed recovery upon proof of approximate causes of the disability by the accidental cause, but the policies in these cases do not involve a limiting clause such as “independently of all other causes” as is found in the present case. They are therefore not authority for appellee’s position here.

The policy provision of the instant case is almost identical to that found in the Hudman case. In fact the provision here is more restrictive than that found in the Hudman case. We consider the latter case controlling under the policy provisions and facts shown here. In Hudman, the accident policy limited coverage to death from an accidental injury “independently of other causes”. The insured had a pre-existing serious heart disease and overexertion concurred to cause the fibrillation of his heart and this in turn caused his death. The court held the insured’s death was not covered by the policy. In so doing, the court held the limitation “independently of other causes” could not be ignored and that under the term of the policy the accidental bodily injuries must be the sole cause of death or injury. The court held:

“We conclude that by definition of the policy terms and by logic, the policy coverage was limited to accidental bodily injuries which must be the sole cause of death.”

The court rejected the proximate cause test previously laid down by some of the cases cited above and quoted with approval from the 1A Appleman, Insurance Law and Practice, Section 403:

“As a general rule, it has been stated that if there is a pre-existing disorder or illness at the time an injury is received, recovery may still be had if the injury was severe enough to have caused the entire damage or considerable damage, but not if the disease was the proximate cause or principal cause thereof. From this, it has been held that where a disease condition aggravates the result of the injury or is, itself, aggravated thereby, there can be no recovery, where the combined result is to cause the death or disability. This has been particularly supported where the death or disability would not have resulted from the external injury alone but, with the combination of injury and disease, the loss is produced * * * ”

We must examine the medical testimony to determine whether or not there was coverage under the holding of the Hudman case. Dr. Maurer, the physician who had performed the three operations on appellee, testified: “that an accident could possibly cause it, yes”. He mentioned two medical authorities who had the opinion that a volvulus condition can be caused by trauma. On April 20, 1965, Dr. Maurer again operated on appellee in the abdominal area. He testified this operation permitted a more thorough exploration of appellee’s abdominal region. His letter of April 29 following the April 20, 1965 operation, read in part:

“I am now of the opinion that the preexisting conditions were the adhesions and that the injury he had sustained had caused an increase of intra-abdominal pressure resulting in rotation of a loop of intestine which was involved by ad-hesions and this brought about a volvulus of the small intestine.”

By way of explaining this letter Dr. Maurer testified: “In other words, had that adhesion not existed there, it is possible he may not have had that tortion. In other words, there is no question in my mind but that the * * * just like I mentioned in my letter over here, that the pre-existing condition was naturally these adhesions, a pre-existing condition to the volvulus.” The doctor was asked the following question:

“Based upon your best medical opinion, would you state that if the adhesions had not been present in Mr. Jordan’s abdomen, that the volvulus would not have occurred ?”

He answered:

“Not of the small intestine, no sir.”

It is uncontradicted the volvulus removed from appellee was the small intestine. Dr. Still also was called to testify by appellee. He agreed that adhesions are caused by disease. In answer to a question, whether in the absence of adhesions in appellee’s abdominal cavity, the volvulus would have occurred, Dr. Still testified:

“I wouldn’t think so * * * I have never heard of it occurring except in the sigmoid colon, and that is the big valve. You don’t see a volvulus of the small intestine without prior abdominal injury from surgery.”

He testified it is possible for the intestine to twist from trauma.

When this testimony is reviewed in the light most favorable to appellee, we are convinced that his disability was caused by a combination of external injuries and the pre-existing disease in the form of an abundance of adhesions. It cannot be said, under the testimony, that the pre-existing condition was remote in its causation or dormant or was so temporary and transit that it did not materially contribute to appellee’s incapacity. Howe v. National Life Insurance Company, 321 Mass. 283, 72 N.E.2d 425, 170 A.L.R. 1254.

The policy under which appellee is claiming benefits requires that the injury be sustained “independently of all other causes”. Under the interpretation of a similar clause in Mutual Benefit Health and Accident Ass’n. v. Hudman (supra), we are compelled to hold under this record that appellee failed to prove his incapacity was caused solely by the accidental injury sustained when lifting the farm machinery. The material evidence is clear the abdominal adhesions and the injury concurred to cause the volvulus condition. In view of this holding, we do not deem it necessary to discuss other points of error brought forward by appellant.

The judgment of the trial court is reversed and judgment is rendered that ap-pellee take nothing.

ON MOTION FOR REHEARING

Appellee’s motion for rehearing to the extent indicated in this opinion is granted. In our original opinion, reference was made to a “dividend certificate” which also was issued by the defendant insurance company to the plaintiff below in addition to the insurance policy discussed, but the language of the certificate was not considered in determining the insurer’s liability. To this extent we were in error. In response to Request for Admissions the insurance company admitted the Certificate and the policy were separate and distinct insurance policies providing accident, hospitalization and indemnity coverage; and that they were both in effect on the material dates hereto. The certificate extended “extra protection” and was issued as a “dividend” by the company to persons otherwise insured with them. An additional premium was charged for the certificate and the two policies provided different benefits. The certificate provided for “extra income protection in hospital” and indemnity of $10.00 per day for confinement within a hospital for 365 days “in addition to any other insurance or protection”. The insurance policy benefits included “loss of work” benefits of $50.00 per month; indemnity for daily expenses incurred by the insured up to a maximum daily limit of $4.00, not to exceed a total of $120.00.

The certificate insured “against loss caused by accidental bodily injuries which occur while this certificate is in force — which loss is not caused by disease”. The certificate did not refer to the provisions of the policy, nor was the coverage provided for in the certificate “subject to” the provisions of the policy. The certificate does not contain the same restrictive limitations found in the policy discussed in the original opinion. Such restrictive limitations as “solely” or “independently of other causes” are not found in the certificate. We conclude therefore, that Mutual Benefit Health & Accident Association v. Hud-man (supra) does not apply insofar as the certificate is concerned. In the absence of a limiting clause such as “solely” or “independently of other causes” the plaintiff was not placed under the same burden required by the Hudman case. The provisions of the certificate simply do not have such a limiting clause. Coverage under the certificate was not limited to accidental bodily injuries which must be “solely” caused by an accident. Neither does the certificate exclude coverage if a disease was a contributing or concurring cause.

The undisputed medical testimony shows the volvulus condition suffered by the assured was caused principally by extra-abdominal pressure which in turn was caused by the accidental injury. The ad-hesions in the abdominal area of the assured caused him to be more susceptible to the volvulus condition. The adhesions, to this extent, contributed to the volvulus condition, but the accidental injury the assured received when lifting the heavy machinery was the primary and proximate cause of the bodily injury. Under such circumstances, when viewed in the light of the provisions of the certificate, as distinguished from the language of the insurance policy, we conclude the assured is entitled to recover under the certificate only. See Home Benefit Association v. Smith (Tex.Civ.App.) 16 S.W.2d 357 (Error Ref.). Pyramid Life Insurance Company v. Alexander (Tex.Civ.App.) 337 S.W.2d 813 (Ref. N.R.E.). We think this holding is in conformity with the holding in Mutual Benefit Health & Accident Association v. Hud-man, cited and followed in the original opinion. There was sufficient evidence to support the trial court’s findings that Jordan was entitled to the coverage under the provisions of the certificate. We remain convinced there can be no recovery under the insurance policy.

In view of this holding, we must now examine appellant’s last point of error to the effect the trial court erred in awarding appellee attorneys’ fees of $500.00 in the absence of evidence concerning attorneys’ fees and the reasonableness of such fees. It has been held in such cases that the trial court may determine the amount and reasonableness of the attorneys’ fees. Article 3.62 of the Insurance Code, V.A.T.S. American National Insurance Company v. Points (Tex.Civ.App.) 131 S.W.2d 983 (Dis. Judgment correct). American Income Life Insurance Company v. Davis (Tex.Civ.App.) 334 S.W.2d 486. The trial court’s action in fixing attorneys’ fees in cases controlled by the above article in question is subject to review only for an abuse of discretion. We find no abuse of discretion, but in view of our present holding the amount of attorneys’ fees must be re-examined by the trial court.

The judgment awarding recovery under the dividend certificate is affirmed; that portion of the judgment awarding recovery under policy No. 475236 is reversed and rendered that plaintiff take nothing. The cause is remanded to the trial court with instructions to determine the reasonable attorneys’ fees and amount of statutory penalty, and to enter judgment in accordance with this opinion. Richardson v. Raby (Tex.Civ.App.) 376 S.W.2d 422. Herrin Transportation Company v. Robert E. Olson Company (Tex.Civ.App.) 325 S.W.2d 826.

Affirmed in part, reversed and rendered in part and remanded in part.


author: GREEN, Chief Justice.

text:
    Soren BERENTSEN et al., Appellants, v. Mrs. W. A. BELLINGHAUSEN, a feme sole, Appellee.
    No. 206.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.

      Hardy, Galindo & Sharpe, by Thomas G. Sharpe, Jr., Brownsville, for appellants.
    Atlas, Freeland, Schwarz & Gurwitz, by Gary Gurwitz, McAllen, for appellee.
   OPINION

GREEN, Chief Justice.

This appeal from a summary judgment for the defendant concerns two propositions involving the application of Art. 6701b, Vernon’s Ann.Tex.St., generally known as the Guest Statute, to the facts as developed: (1) Was a genuine issue of fact raised of the status of plaintiffs as to whether they were paying passengers in defendant’s automobile at the time of the accident? (2) If the answer to the above question is that no such issue of fact was raised, was a genuine issue raised that the defendant was guilty of gross negligence proximately causing the accident?

We shall designate the parties as they were in the trial court. The “summary judgment evidence” consists of the pleadings, the affidavit of defendant attached to her motion for summary judgment, the joint affidavit of the plaintiffs, husband and wife, attached to their reply, and the deposition of each of said plaintiffs. In passing upon the contentions of the parties, we accept as true all competent evidence of the parties opposing the summary judgment, and give them the benefit of every reasonable inference which properly can be drawn in their favor. Rule 166A, Texas Rules of Civil Procedure; Edgar v. Southwestern Oil & Refining Co., Tex.Civ.App., 377 S.W.2d 225, writ ref. n. r. e.; Bolin v. Tenneco Oil Co., Tex.Civ.App., 373 S.W.2d 350, writ ref. n. r. e.

We shall first take up appellants’ contention that a genuine issue of fact was raised as to whether or not plaintiffs were paying passengers on the trip in question, and not guests.

All parties resided in Port Isabel, Cameron County, Texas. Plaintiffs owned no car. They were in the habit of buying groceries in the nearby city of Brownsville, where the price was lower than in Port Isabel. Frequently, they called on friendly neighbors to take them and bring them back. Defendant, a friend of plaintiffs, had previously taken them either once or twice. On the present occasion, plaintiff (the husband) having just received his pay check, his wife called defendant and asked if she would take them to Brownsville. Defendant declined, saying that she was expecting company. Shortly thereafter defendant called back and the following conversation took place between plaintiff Mrs. Berentsen and defendant :

“So we went ahead and called a cab. And in the meantime she called back and said, well, that her company wasn’t coming, that she would take us but she was short on gas.
And I says, ‘Well, I’ll buy the gas.’
And she said, ‘And you buy me a coke ?’
And I says, ‘Well, I don’t have to buy a coke, I’ve got the cokes here at the house.’
She said, ‘Well, do you have anything to go in the coke?
And I said, ‘No, I don’t have that.’
And she said, ‘Okay, you buy the gas and we will go across the river and pick up a bottle and we will pick up your groceries and we will come back home.’ ”

Plaintiff-husband heard his wife’s end of the conversation, but did not hear defendant’s remarks. In his deposition and affidavit he included the statement that they were to buy defendant a lunch in Matamoros, but he did not hear any one so state, and his wife testified that nothing was said about eating any lunch in Mata-moros. In this connection, plaintiff Mrs. Berentsen testified in her deposition as follows:

“Q. What time of day did this happen?
A. The wreck?
Q. Yes.
A. About two in the afternoon.
Q. All right. So you weren’t going to buy lunch or anything?
A. No. We was going to go across the river, you know, and get her a bottle of rum — she loves rum— and buy her some rum and maybe have a couple of drinks over there.
Q. All right. Do you think that that is the only reason she went?
A. Well, now that I couldn’t answer.
Q. You think that’s the main reason she went? Actually you don’t know why she took you?
A. No, I don’t know why she took us.
Q. She had done this before?
A. Yes, she had took us before.
Q. You considered her to be a friend of yours?
A. Yes sir.
Q. All right. She had no business at all on this occasion? She was just taking you all?
A. Yes, she was just going to take us to buy groceries and go across the river.”
* * * * * *
“Q. Now, you were the only one who had the conversation with Mrs. Bellinghausen about taking you to get groceries?
A. On the phone, yes.
Q. Your husband didn’t talk to her?
A. No. They were all sitting there. They could hear what I said but they don’t know what she said.
Q. Okay. And they didn’t actually talk to her?
A. No, they didn’t talk to her.
Q. And you are the one who made arrangements for Mrs. Bellinghausen to take you all to get groceries?
A. Yes sir.
Q. Nothing more was said after you all got in the car ?
A. No, nothing more. Only when she drove up in the filling station, my husband said to her, ‘Do you want to put gas in here now? And she said no, she had bought this bad gas and we had enough to get to Brownsville.”

The accident happened on the road to Brownsville.

From Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 198, we copy as follows:

“We agree with the unanimous opinion of the Court of Civil Appeals [244 S.W.2d 915] that Burt was the guest of Lochausen on the occasion in question, and was not a mere passenger in Loch-ausen’s car, as is expressed by the court’s majority opinion, as follows [244 S.W.2d 917]:
‘The rule established by the authorities everywhere seems to be, to remove a case from the provisions of such statutes a definite relationship must be established and a definite tangible benefit to the operator shown to have been the motivating influence for furnishing the transportation. The rule is firmly established in the decisions of this State, Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190 (e. r.); Franzen v. Jason, Tex.Civ.App., 166 S.W.2d 727 (e. r.); Henry v. Henson, Tex.Civ.App., 174 S.W.2d 270 (e. r.), and to which might be added many other cases. The benefits suggested by plaintiff are thought to be too uncertain, remote, and speculative to be definite and tangible. See Leete v. Griswold Post, American Legion, 114 Conn. 400, 158 A. 919 (and our statute is copied from the Connecticut statute).’
“See also Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022; Linn v. Nored, Tex.Civ.App., 133 S.W.2d 234, dismissed, correct judgment; Tex.Jur. 10 Year Supp., Vol. 2, p. 264, Automobiles, Sec. 309, et seq.”

The case of Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, writ ref., was cited with approval in the above opinion, as it has been in many other Texas cases, as shown by Shepard’s Texas Citations. There it was held that an agreement to pay a share of the operating expenses of an automobile in which one is riding does not make one a passenger for hire. We quote from the opinion as follows:

“In McCann v. Hoffman [9 Cal.2d 279, 70 P.2d 909], supra, the Supreme Court of California said (70 P.2d page 912):
‘The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who without such exchange would be a guest, and consequently is not payment for the transportation or compensation within the meaning of the statute. It is obvious that if a different result obtains under any construction of the statute its purposes would be defeated and its effect annulled. The relationships which will give rise to the status of a passenger must confer a benefit of a tangible nature and are limited. * * Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure.’ ”

Similar holdings have been made by Texas courts in Rowan v. Allen, Tex.Com.App., 134 S.W.2d 1022, opinion adopted by Sup.Ct.; McClain v. Carter, Tex.Civ.App., 278 S.W.2d 877, writ ref. n. r. e.; Easter v. Wallace, Tex.Civ.App., 318 S.W.2d 916, writ ref. n. r. e.; Jameson v. Sibert, Tex.Civ.App., 379 S.W.2d 86, writ ref. n. r. e.; Dietrich v. F. R. Young Company, Tex.Civ.App., 400 S.W.2d 572, and other cases.

Mrs. Bellinghausen had no plans to ride to Brownsville when she was first called by her friend, Mrs. Berentsen. Clearly, under plaintiffs’ own testimony and affidavit, plaintiffs were the accommodated parties. Plaintiffs say that the fact that they were going to fill the tank of defendant’s car with gas, and buy her a bottle or two of rum in Matamoros in return for her making a trip especially to take them where they could save money on their purchase of groceries made them passengers for a valuable consideration, and takes the case out of the guest statute. It is a fact well known to all car owners, of which this court can take judicial notice, that the price of gasoline is not the sole expense of the operation of an automobile. We do not believe that the purchase of a bottle or two of rum, plus a lunch in Matamoros, if one was to be had on the trip, which plaintiff-wife denied, were definite tangible benefits to defendant shown to have been the motivating influence for her furnishing the transportation to plaintiffs.

In Rowan v. Allen, supra, it was held that “the plaintiff’s hiring out her daughter to the defendant in consideration of the latter’s agreement to transport plaintiff to the races” under the circumstances of that case did not create plaintiff a paying passenger.

Plaintiffs cite as authority for their contention Wills v. Buchanan, 358 S.W.2d 727, Tex.Civ.App., n. w. h., and Burnett v. Howell, Tex.Civ.App., 294 S.W.2d 410, writ ref. n. r. e. In Wills, plaintiff and defendant worked at the same plant, and lived in the same vicinity. Plaintiff made an agreement with defendant that she would pay him $2.00 a week to transport her to and from the plant. At least one other had the same agreement with defendant. The court held that a material tangible benefit for carrying plaintiff in his car moved from her to him, which was the motivating cause for furnishing the transportation, and that the guest statute was not applicable.

In Burnett, supra, the defendant, owner and operator of the car, wanted to make a trip to Andrews to see his girlfriend, but could not go for he had no money to buy gasoline. Plaintiff told him he would buy the gasoline if defendant would take him and bring him back. Plaintiff bought a tank of gasoline, and gave defendant a dollar and they went to Andrews. On the return trip the accident happened which was the subject matter of the suit. The Court, after distinguishing Raub v. Rowe, supra, held that defendant was the accommodated party, and that a tangible benefit moved to the defendant which was the motivating influence for defendant to furnish plaintiff the transportation, and that the guest statute did not apply.

We do not believe these authorities control the fact situation of this case. We find that the evidence does not disclose a genuine issue of fact of whether plaintiffs were paying passengers. We hold that the trial court did not err in ruling that plaintiffs were guests within the terms of Art. 6701b.

Since the evidence establishes that plaintiffs were guests in defendant’s car without payment for their transportation, they can not recover unless the accident was intentional on defendant’s part, or unless it was caused by defendant’s heedlessness or her reckless disregard for the rights of others. Art. 6701b, V.A.T.S. There is no contention that the accident was intentional. The phrase “or caused by his heedlessness or his reckless disregard of the rights of others” in the statute is construed as meaning gross negligence. Raub v. Rowe, supra; Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, writ ref. n. r. e.

Defendant’s car had been purchased by her new only a few months before the accident, and had been driven less than 2500 miles. The tires were in good condition. The accident happened on a clear, dry, sunshiny afternoon, on a straight stretch of highway. As they were proceeding toward Brownsville, they approached a car traveling in the same direction, and defendant steered her car to the left lane, passed the car, got back in front of the car in the right lane, and then one of her tires blew out. The car thereupon went out of control, and although defendant, according to both her statements and plaintiffs tried her best to keep it going in a straight line, it crossed back and forth across the highway and turned over, causing damages to plaintiffs. The other car succeeded in missing them and was not a party to the accident; and fortunately there were no other vehicles near at the time.

Though there is a conflict between the parties as to the speed the car was traveling, we assume as true plaintiffs’ testimony that defendant as they approached and passed the other car was driving at from 80 to 85 miles per hour. Both plaintiffs state that the husband-plaintiff had at least twice complained to defendant of the speed, and asked her to slow down. It is plaintiffs’ contention, though they cite no Texas authorities in support thereof, that a genuine issue of fact as to defendant being guilty of gross negligence was raised by the evidence of excessive speed, ignoring plaintiffs’ request that she slow down and the loss of control of the car after the blow-out. We do not agree.

Plaintiffs agree in their depositions that defendant had control of the car prior to the flat tire. Although the matter of proper control is no longer an issue to be submitted to the jury, Barclay v. C. C. Pitts Sand & Gravel Co., Tex.Sup.Ct., 387 S.W.2d 644, there is nothing in the case which raises even the suggestion of heedlessness' or reckless disregard of the rights of others on the part of defendant in her operation of the car after the tire blow-out.

Though the plaintiffs’ testimony that defendant was operating her car at a rate of speed ten to fifteen miles per hour in excess of the legal speed limit was evidence of ordinary negligence, it would not under the situation here be evidence of such heedlessness or reckless disregard of the rights of others as to constitute gross negligence. The day was clear and sunshiny; the highway was straight and dry; there was no traffic on the highway to interfere with or be endangered by her passing the car in front; she succeeded without any trouble in passing such car and getting back in her lane, and the accident is shown to have happened as the result of a new tire becoming flat. This last event was something which she could not reasonably foresee. The fact that she, as the driver and owner of the car, disagreed with plaintiff-husband as to whether she should slow down her speed is no evidence, under the facts of this case, of a reckless disregard of the rights of others.

It is stated in Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001-1003:

“In discussing the meaning of 'gross negligence’ this Court has said: ‘It is to be observed that the definition quoted uses the words ‘conscious indifference,’ thus stressing the mental attitude of the person charged to have been grossly negligent. Gross negligence is positive or affirmative, rather than merely passive or negative as ordinary negligence often, and perhaps usually, is. As said in the discussion in Ruling Case Law of the right to recover exemplary damages for gross negligence: ‘The rule is that recovery is permitted, in, and confined to, cases where the negligence is wilful, or where it is so gross as to indicate wantonness or malice.’ 8 R.C.L., p. 590. Mere indifference is not enough. The indifference must be conscious. The indifference is to the rights or welfare of the person or persons who may he affected by the act or omission. Thus the doctrine of foreseeableness becomes important.’ (Emphasis added.) Texas Pac. Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 831, 98 A.L.R. 262.”

We feel that the following Texas authorities, and many others, support our ruling that the summary judgment evidence raises no genuine fact issue as to defendant being guilty of gross negligence proximately causing the accident on the occasion in question: Rowan v. Allen, Tex.Com.App., 134 S.W.2d 1022; Sheffield Division Armco Steel Corporation v. Jones, Tex.Sup.Ct., 376 S.W.2d 825; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, writ ref.; Linn v. Nored, Tex.Civ.App., 133 S.W.2d 234, writ dis. corr. judg.; McCarty v. Moss, Tex.Civ.App., 225 S.W.2d 883, writ ref.; Sims v. Smith, Tex.Civ.App., 332 S.W.2d 99, writ ref. n. r. e.; Matlock v. Hooge, Tex.Civ.App., 365 S.W.2d 386, writ ref. n. r. e.; Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, ref. n. r. e.

Cases holding that a fact issue of gross negligence was raised by the evidence, such as Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Burt v. Lochausen, supra; Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820; and others, can be clearly distinguished from the instant case on the fact situation.

The trial court did not err in sustaining defendant’s motion for a summary judgment.

Judgment affirmed.


author: PARKER, Justice.

text:
    C. T. SELLERS et al., Appellants, v. Aubrey L. WEBB, Appellee.
    No. 6827.
    Court of Civil Appeals of Texas. Beaumont.
    April 14, 1966.

      Robert F. Atkins, Coldspring, for appellants.
    Robert B. Smither, Huntsville, Coker & Coker, Conroe, for appellee.
   PARKER, Justice.

C. T. Sellers and James H. Sewell sued to rescind a sales contract of land, alleging fraud on the part of the seller, Aubrey L. Webb. In answer to special issues the jury found: (1) that Aubrey L. Webb represented to C. T. Sellers that Webb’s corner was at a location “X” as shown on plaintiffs’ Exhibit No. 1; (2) that C. T. Sellers and James H. Sewell believed and relied upon such representation made by Webb; (3) that such representation was false; (4) that Webb knew at the time he made such representation that it was false; (5) that such false representation was a material inducement to Sellers and Webb for entering into such contract. Motion for judgment on the jury findings was filed by the plaintiffs. Motion to disregard the jury findings was filed by the defendant Webb. The court, being of the opinion that there was no evidence to raise said issues as to plaintiff Sewell, granted the motion to disregard the jury findings on special issues as to Sewell, with judgment rendered that Sellers recover $2,500.00 from Aubrey L. Webb and that James H. Sewell take nothing by his suit. Aubrey L. Webb has appealed and also James H. Sewell has appealed from the judgment of the trial court. The parties will be called by their names.

Webb’s points of error are that (1) the trial court erred in granting a judgment on the jury’s verdict for C. T. Sellers because there was no evidence to support the findings of the jury and (2) that the trial court erred in granting a judgment on the jury’s verdict for C. T. Sellers because the evidence is insufficient to support the findings of the jury.

Sewell’s points of errors are that (1) the trial court erred in holding that Webb was not guilty of fraud against James H. Se-well under the facts of this case, and (2) that since fraud was proved, the trial court erred in not setting aside the entire contract entered into between Aubrey L. Webb, James H. Sewell and C. T. Sellers, “instead of holding it valid as to Sewell and Webb, but void as to Sellers and Webb.”

The contract of July 18, 1962, was a sales contract by which the seller Aubrey Lee Webb agreed to sell and the purchasers, James H. Sewell and C. T. Sellers, agreed to buy all of a tract of land containing 182.655 acres for the total sum of $54,796.-50. The purchasers were bound to purchase this land. It was not an option. This contract of sale is entire and indivisible. Only one tract of land was contracted to be sold by one owner to two purchasers who were jointly liable to purchase the entire tract for the price agreed upon.

The consideration of $54,796.50 was payable as follows:

(a) $5,000.00 cash upon the execution of this agreement to the seller by purchasers as an earnest money deposit,
(b) $10,890.98 cash to be paid at the time the transaction is completed and deed is delivered to the purchasers.
(c) $38,905.52 payable under a purchase-money note bearing interest at the rate of 6% per annum from the date of closing until paid, said note payable as follows: $13,305.52 one year from the date of closing, $12,800.00 two years from date of closing, and $12,800.00 three years from date of closing, the interest on the unpaid principal to be due and payable on said installment dates in addition to the installments of principal, providing for acceleration of maturity on default in the payment of any installment of principal or interest, 10% interest on past due principal and interest, and 10% attorney’s fees for collection.
The deferred payment shall be secured by the usual vendor’s lien and a first deed of trust containing power of sale upon a form approved by the Seller.

The alleged fraud by the seller was discovered in August of 1962. Thereafter, several discussions were had between Sew-ell and Webb, Sewell complaining of alleged misrepresentation with reference to boundaries. Finally, Sewell wrote Webb on October 15, 1962, the contract would be cancelled.

The contract of sale had the following provision:

“VII.
“As a part of the consideration for this sale the Purchasers agree to enter into a pasture or grazing lease whereby they will lease said premises to Seller for that purpose, or so much thereof as is not developed or improved along the proposed lake shore of Lake Livingston and not submerged by reason of a proposed dam of the Trinity River, for a period of six (6) years from the closing of this transaction, at a rental of One ($1.00) Dollar per acre for the acreage actually available for grazing. Should Purchasers commence development with improvements along the proposed lake shore, Seller will fence off the portion being developed at his expense and retain the use of the unsubmerged portion at the rental above provided. Seller may terminate such lease at his option should any portion of said premises be covered by water as a result of the proposed dam of the Trinity River for Lake Livingston.”

Sewell testified the sole reason he and Sellers were interested in the purchase was to obtain water front on the proposed Lake Livingston and that “we had several people who were coming in; we were going to develop the land and that was going to take a lot of money.” From the provision of the contract reciting that the purchasers intended to develop the property and Sew-ell’s statements, the purchasers were acquiring the property as part of a joint venture. Clearly, Webb was selling the entire tract of land, not an undivided interest in the tract of land. Under the contract Webb did not agree to convey an undivided one-half of the 182 acres to Sewell should Sellers not buy the other undivided one-half interest. From the above facts, this court concludes that the entire contract must stand or be declared null and void with the parties placed in status quo, depending on whether or not fraud was established. This conclusion is based on the following authorities: “[This case] involves fraud, which, if found to exist, vitiates, as between the parties, the entire transaction.” McDonald v. Simons, 280 S.W. 571 (Tex.Com.App., Sec. B, 1926), judgment and holding of the Commission of Appeals on the questions discussed in its opinion approved by the Supreme Court; Conley v. Texas Co., 289 S.W. 169, 172 (Tex.Civ.App.1926, n.w.h.), citing as authority Nass v. Chadwick, 70 Tex. 157, 7 S.W. 828 (1888). In the latter case it was held:

“The contract is an entirety, and as such must either be affirmed or rescinded. In this respect it differs from no other contract.”

Also see 148 A.L.R. 417 under the annotation “Partial Recision of Contract” and Texas cases cited on page 422.

In this particular transaction it would seem it was a joint venture. Sewell testified the only reason he and Sellers were interested in the purchase was to obtain water front on the proposed Lake Livingston ; that according to the line and corners Webb showed Sellers, the Webb tract of land would have some 80 acres above the water line of Lake Livingston instead of 23 acres according to the correct lines. They were not complaining about the acreage that Webb owned. As Sewell testified — “If he had 80 acres out of the water, we would still buy it. The 80 acres he told us there would be.” Sewell testified that he would not have paid Webb any money or signed the contract had he known that the land showed to Sellers by Webb as his belonged to someone else. Sellers testified to the same effect. Mr. Sewell further testified:

“We had several people who were coming in; we were going to develop the land and that was going to take a lot of money.”
“Q. Did they back out?
“A. No. We cancelled it when we did not have what we thought we had. It would have gone through.”

Sellers said he went on the land with Webb when Webb showed him corners which Webb represented as being his corners. Thereafter, Sellers took Sewell upon the land, showed him the lines and corners that Webb had shown him. From these lines and corners some 80 acres of the 182 acres would have been above high water of Lake Livingston when completed, but according to the correct corners of Mr. Webb’s land 23 acres and not 80 acres would have been higher than the shore line of Lake Livingston when completed. The remainder of the 182 acres would have been under water of Lake Livingston. The surveyor Kirkland corroborated this evidence as to high land acreage, after Sellers showed him the lines and corners Webb had pointed out to Sellers. The sales contract was closed without discovery of this misrepresentation.

The evidence shows without dispute the purchasers were interested in purchasing for the sole reason that about 80 acres of the 182 acres would be higher than the shore line of Lake Livingston according to Webb’s representation of his lines. The difference between 80 acres and 23 acres above high water of Lake Livingston was a material misrepresentation.

The 182 acres was being acquired by Webb under a contract dated June 9, 1955, with the Veterans’ Land Board. Prior thereto the land was surveyed with permanent markers placed at each corner with bearing trees and the lines marked. Webb knew the location of his lines and corners. For six or seven years before Webb took Sellers upon the land, Webb had been upon his land several times a month, running cattle and cutting pulp wood. Webb was in the timber and pulp wood business to some extent. The bearing trees at the key corner were still standing and marked at the time Webb showed Sellers a corner some 300 feet from it, according to Sellers’ testimony.

In considering appellee Webb’s point of error No. 1 that the answers of the jury were not supported by any evidence, that part of the record most favorable to the findings of the jury are controlling and Webb’s contention is overruled. In considering Webb’s point of error No. 2 that the evidence is insufficient to support the findings of the jury, the entire record and all evidence has been carefully reviewed. The findings of the jury are not so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and, accordingly, this point of error is overruled.

James H. Sewell’s points of error are each sustained.

The judgment of the trial court is affirmed in part and reversed and rendered in part with judgment here entered that James H. Sewell recover of and from Aubrey L. Webb the sum of $2,500.00; that C. T. Sellers do have and recover of and from Aubrey L. Webb the sum of $2,500.00; that said sales contract entered into between Aubrey L. Webb as seller, and C. T. Sellers and James H. Sewell as purchasers, is declared null and void and of no further force and effect.


author: STEPHENSON, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, V. A. J. QUIBEDEAUX, Appellee.
    No. 6817.
    Court of Civil Appeals of Texas. Beaumont.
    April 7, 1966.
    Rehearing Denied June 2, 1966.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Jim Graves, Orange, for appellee.
   STEPHENSON, Justice.

This is a workmen’s compensation case. Trial was by jury and plaintiff recovered judgment for two hernias based upon the answers of the jury to the issues submitted to them. The parties will be referred to here as they were in the trial court.

Defendant contends first that there was no evidence to support the finding of the jury that the hernias appeared suddenly and immediately following the injury. Passing upon this “no evidence” point, we consider only the evidence favorable to such finding.

The evidence showed that plaintiff was a 64 year old electrician who had been employed by the insured in this case for 44 years. There is no evidence in the record that plaintiff had such hernias in any degree before the claimed injury, and the jury so found. That finding of the jury has not been attacked. Plaintiff testified: That on November 10, 1961, the date of this injury, plaintiff was engaged in the work of pulling wire through a conduit. That the wire was heavy and awkward to handle and it required much physical effort to keep the wire straight and lined up. That plaintiff felt a very severe burning and pain in his abdomen when he bent over and started to pick the wire up. That plaintiff did not lift any more and went to first aid and reported to the nurse what had happened. That the nurse took down a report as to what had happened. That plaintiff did not go to a doctor at that time because as time went on the pain got less severe and then only when plaintiff had heavy work to do. That the burning sensation was only at the time the accident happened. That plaintiff was examined by Dr. Wal-thers, the company doctor, in the early part of May, 1962, when the doctor found the two hernias. That plaintiff first noticed a bulge on the right side probably two or three months after the accident which kept increasing a little bit and was pretty large at the time of the physical examination by Dr. Walthers. That Dr. Walthers performed a successful operation on both hernias October 23, 1962.

A fellow workman testified that plaintiff told him he had pulled something on the day of the accident and then later several times plaintiff told him it was still hurting. Plaintiff continued to work for the insured and was so employed at the time of this trial.

Article 8306, § 12b, Vernon’s Ann. Civ.St., requires that the hernia resulting from the injury appear suddenly and immediately following the injury. Even though a claimant receives an injury, if the hernia does not appear suddenly and immediately following the injury, it is not compensable under this section of the compensation act.

The definition of hernia is set forth in Lewis v. American Surety Company, 143 Tex. 286, 184 S.W.2d 137, as follows:

“We have investigated many cases in which hernia is defined. In all of them it is described as being a protrusion, and it is universally held, so far as our investigation discloses, that unless a protrusion follows an injury no hernia is sustained within the meaning of compensation statutes. * * *
“Applying the foregoing to the record before us, we are led to the conclusion that it was not established by competent evidence, as a matter of law, that petitioner sustained a hernia in any degree on August 30, 1942. The evidence does' disclose, without dispute, that he suffered an injury upon that date, which may have been a hernia, but which also may have been but a perforation or an enlargement of the rings. It does not establish that a protrusion followed. If it did not, then he suffered no hernia in any degree at that time. If there was no protrusion in any degree, there was no hernia in any degree.”

The evidence in this case shows plaintiff injured himself on the occasion in question and that this injury was accompanied by the sharp pain in the groin area which is common in hernia cases. But there is no evidence that there was any swelling, bulging or protrusion until two or three months after the accident. Under the definition of the Lewis Case, supra, there was no hernia until there was a protrusion.

Plaintiff contends the compensation act must be construed liberally in favor of a claimant and that the portion of the act requiring the hernia to appear suddenly and immediately following the injury should not be strictly construed. Plaintiff cites the case of Great American Indemnity Company v. Gravell, Tex.Civ.App., 297 S.W.2d 371. The facts in this case show that the plaintiff suffered an injury, at which time he had a severe pain in his left side which felt like he was being cut with a knife. He went home and when he arrived at his home, he looked at his side and it was protruding. The court held that the evidence supported the finding of the jury of the hernia appearing suddenly and immediately and said this:

“Those terms are relative, Guerra v. State, 155 Tex.Cr.R. 306, 234 S.W.2d 866, 868, 869. They are not necessarily the equivalent of ‘instantaneous.’ ”

Plaintiff also cites the case of Texas Employers’ Insurance Association v. Brantley, Tex.Civ.App., 394 S.W.2d 824. In this case it was held that the evidence supported the finding of the jury that the hernia appeared suddenly and immediately following the injury. The following testimony was given:

“The appellee testified that on the day of his injury, February 26, 1958, while he was lifting a heavy piece of iron, he ‘felt kind of a sting there in my right side and just kind of a sharp pain.’
“Q Is that down in your groin area?
“A That is right. I never thought too much about it and I went on and carried the sub on to the rig and so that night kept getting sore in there and I looked and it was kind of a swelling or puffed out place there.”

It is noted that in each of these cases the “protrusion” or “swelling” or “puffed-out place” was discovered on the day of the injury. No case in Texas cited to us goes any further than these two cases in the construction of “suddenly and immediately following the injury”. The point is sustained.

Reversed and rendered.