author: WOODLEY, Presiding Judge.

text:
    Juanita Mae KING, Appellant, v. The STATE of Texas, Appellee.
    No. 36025.
    Court of Criminal Appeals of Texas.
    Oct. 9, 1963.

      Robert O’Donnell, Dallas, for appellant.
    Henry Wade, Dist. Atty., William F. Alexander, Edwin Davis and Emmett Col-vin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant was convicted as a principal to the rape of her 13 year old daughter by IS year old Ernest English, and her punishment was assessed at 25 years in the penitentiary.

We adopt the summary of the evidence found in appellant’s brief.

“The defendant was tried on the theory that she acted in consort with Ernest English, the steady boyfriend of the daughter, which resulted in four separate acts of intercourse. The defendant denied knowledge of the acts of intercourse at the time they occurred but admitted subsequent knowledge that such- acts had taken place. Both the prosecuting witness and the accomplice testified that the mother knew of such acts of intercourse at the time of their occurrence, was present in the home when they occurred, and aided the accomplice in the culmination of such acts. The accomplice Ernest English testified that prior to the defendant’s suggestions they had not previously considered having intercourse and he further denied any knowledge of how the act was performed attributing all actual knowledge of intercourse to the advice of the defendant. The mother denied any knowledge of the intercourse at the time it occurred but admitted that she subsequently discovered that the two had been having relations when the complaining witness feared she might be pregnant. The natural father testified in behalf of the defendant that he had a discussion with both the complaining witness and the accomplice during the time the complaining witness feared she might be pregnant and at that time no mention was made as to the part the defendant allegedly played in the relations. No outcry with regard to the alleged rapetook place until approximately four months after the intercourse and such outcry arose then as a result of an unrelated disagreement between the defendant and the complaining witness. Trial was to a jury who found the defendant guilty of the offense of rape and assessed her punishment at twenty-five years.”

The appellant’s confession was introduced in evidence in which she stated:

“On or about the 24th of April of 1962, Ernest English called my daughter Donna, at our home 2609 North Garrett and Donna called me to the phone saying that Ernest wanted to talk to me about she and Ernest getting married. I took the phone and he asked me. I don’t remember what I replied. After a little while it dawned on me that in the eyes of God they wanted to get married. I turned to Donna on the bed and asked her if this is what she really wanted and she said it was. I talked to him and I talked to her and explained the facts of life, told them what things were done and what were not. I did this not to tell them what to do but what took place when these things were done. I just answered his questions. He asked me such things as: I insert myself in her and I said yes that is the way married people do. To my knowledge, Donna was a virgin at this time. I had ordered literature and explained things to her when she had asked before this. I told them what married people did to make them know how they would feel. This was about 10:30 at night. The following day I was ironing in my bedroom when they came home from school. They said they had decided not to do this. I said fine. They went on into her bedroom and later came out and said ‘we are going ahead with this’. I said I hope you know what you are doing. She already knew that women have to use something to keep from getting pregnant. She knew where I kept my nor-forms. They eventually closed the door. The next day they went back to her bedroom again while I was stamping some slips for- her cheerleader campaign. The first day after-Ernest'left she had told me ‘we didn’t finish anything’. On the second day, I noticed a while after they left the bedroom that there was blood on her robe. There were two norforms gone when I counted them later. To my knowledge this was the only two times but it may have been three. After the first two times Donna’s attitude toward Ernest changed — she got cold toward him. I had some yellow hormone pills that the doctor had given me and I gave her one in some milk. I think it was one.”

As a witness in her own behalf the appellant denied knowledge of the acts of intercourse at the time they occurred, but admitted subsequent knowledge that such acts had taken place.

Two gounds for reversal are presented.

Bill of Exception No. 1 complains that the confession of the appellant was not competent evidence against her because the evidence failed to show that she was properly admonished pursuant to Art. 727, Vernon’s Ann.C.C.P.

As we understand this claim of error, it is appellant’s position that since she could not commit the offense of rape acting alone, it was imperative that the person warning her have some understanding of the law of principals as it applies in rape cases so that the accused could be properly admonished and could understand how she could stand trial for the commission of an offense concerning which the statement was made.

We find no merit in such contention. The evidence shows a compliance with the requirements of Art. 727, Vernon’s Ann.C.C.P. It was not necessary that the person to whom the confession was made understand the law relating to the facts to be stated by the accused after the statutory warning, or that the confession particularize the offense charged or the offense concerning which the statement was made. See Oglesby v. State, 148 Tex.Cr.R. 393, 187 S.W.2d 555; Raulie v. State, 122 Tex.Cr.R. 348, 55 S.W.2d 562; Dove v. State, 112 Tex.Cr.R. 231, 15 S.W.2d 1042.

The remaining claim of error relates to the cross-examination of Ernest English who was an accomplice witness.

The contention is that the appellant was not permitted to show by English that he had not been charged with rape as a result of the transaction about which he testified on direct examination. It is argued that such testimony was admissible as showing animus and motive, bias and prejudice, and to show that the witness was seeking favor at the hands of the state.

The record shows that appellant’s counsel was permitted to ask the witness whether or not the district attorney had influenced him or promised him anything, and that the witness answered in the negative. We see no error.

The judgment is affirmed.


source: Caselaw Access Project

author: w. t. McDonald, judge. BELCHER, Commissioner. MORRISON, Judge.

license: Public Domain

text:
    B. R. SHEFFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 34232.
    Court of Criminal Appeals of Texas.
    Oct. 3, 1962.
    Rehearing Denied Jan. 9, 1963.
    Second Rehearing Denied Feb. 13,1963.
    Certiorari Denied Oct. 14, 1963.
    See 84 S.Ct. 45.

      William B. Martin, Hillsboro, Ben Gees-lin, Brady, Douglass D. Hearne, Cofer & Cofer, Austin, for appellant.
    Les Procter, Dist. Atty., David S. Mc-Angus, Asst. Atty. Gen., and Leon B. Douglas, State’s Atty., Austin, for the State.
   w. t. McDonald, judge.

Appellant was convicted of the offense of uttering and passing a forged instrument in writing relating to and affecting title to land. His punishment was assessed at confinement in the penitentiary for a term of six years.

Trial was had in the District Court of Hill County, Texas, after a change of venue from the District Court of Travis County, Texas. The cause was heretofore reversed by this court in Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100, because the evidence was insufficient to show that the notary public taking the acknowledgment to the instrument alleged to be false was a duly qualified notary public, and for other reasons set forth in the opinion.

The statutes, Arts. 1006, 1007, and 1008 of the Vernon’s Ann. Penal Code, under which appellant was convicted, were held constitutional in the opinion.

Attention being directed to the amendment of Art. 5421m, Vernon’s Ann. Civ.St., in 1955, by the addition of Sec. 32 prescribing a penalty for the use of any false, fictitious, or forged instrument in writing in connection with or pertaining to any transaction under the Veterans Land Fund Act, the court gave application to the penalty prescribed in said section, the section being enacted by the legislature subsequent to the date of the offense charged against appellant and prescribing a lesser penalty than that prescribed in Art. 1006, supra.

We find no merit in appellant’s contention that in enacting Sec. 32 of Art. 5421m, supra, the legislature repealed Art. 1008, supra. A contrary intention was clearly expressed in Sec. 14 of the later act wherein it was provided that the provisions of the act were to be cumulative of all other laws not in conflict therewith.

The record in this case is perhaps one of the longest with which this court has been confronted. It contains some 3,800 pages. After carefully reviewing the entire record, we find that appellant’s primary contention is that the evidence is insufficient to support the conviction. It is his contention that the evidence fails to show that the acknowledgment, as set out in the indictment, was “falsely made” by the notary, Doris Sayles, or that it was made with any fraudulent intent.

Briefly summarizing the testimony, it reflects that the appellant had been engaged in what is known as “block deals” under the Veterans Land Program of this state at Brady, Texas. Appellant and L. V. Ruffin secured applications from qualified veterans, paid them $100 each for the rights under the Veterans Land Program, submitted the application to the Veterans Land Office at Austin, Texas, purchasing the land on the sworn application of these various veterans without the veterans appearing before a notary public to swear to the applications pertaining to the acquisition of the land. The conviction in this cause was had on the transaction involving a veteran by the name of Alfonso G. Míreles. Míreles was a veteran living at Brady, Texas. He went to the office of L. V. Ruf-fin and signed an application. He testified that he did not read it, that he did not appear before Doris Sayles, that he never talked to her, that he did not want to buy any land, that he had never been in Kinney County, Texas, where the land involved in this transaction is located, that some nine months later he signed some papers for Mr. Ruffin, that Ruffin gave him a check for $100, that the final contract was acknowledged by Jerrie Rankin but he did not appear before Jerrie Rankin and did not know her.

The testimony of Doris Sayles, substantiated by a copy of the commission from the Secretary of State, adequately reflects that she was a notary public. She testified that Mireles did not appear before her but the acknowledgment reflects that she certified that he did.

The evidence adduced from the testimony of Doris Sayles and Mireles clearly shows that the acknowledgment was falsely made.

Art. 1007, V.A.P.C., which was the applicable statute at the time of the commission of the offense, provides that if any person authorized by law to take the proof of an acknowledgment to any instrument, document, or paper whatsoever, affecting or relating to the title of lands in this state, wilfully and falsely certifies to such proof or acknowledgment duly made, he shall be guilty of forgery. We hold that this article does not require any intent to defraud upon the part of the notary making a false certificate to an acknowledgment. We think the wilful making of a false acknowledgment is a forgery under the terms of the article. Appellant’s contention is without merit.

Appellant further contends that the facts and circumstances are not sufficient to show that he was a principal and that there is no evidence that he uttered personally, published, passed, or used the alleged false or forged acknowledgment.

We think it unnecessary to here review the lengthy testimony as to the scheme or system used by appellant, Ruffin, and Bas-com Giles in this and other transactions involving the purchase of large blocks or tracts of land and the division of the excess profits from the inflated values with intent to defraud. Suffice it to say that the testimony is more than adequate to establish the appellant as a principal in this transaction. Ruffin’s testimony shows that appellant knew the applications of the various veterans were in blank. Ruffin testified that he secured more than 100 veterans’ signatures to applications, approximately 54 of them being used in this transaction, and that the Rosenow Ranch involved in this transaction was in Kinney County and Mireles was to get his tract of land out of it. Ruffin’s testimony further reflects that appellant suggested that they make different tracts so that it would look better; that appellant got the money from Brady National Bank; that appellant was to pay Ruffin some $20,000 but that appellant said he had to pay Giles $75,000 and that he reduced the amount that Ruffin was to receive.

Appellant testified that Ruffin laid the papers involving the Rosenow Ranch on his desk and talked to appellant’s wife and said he wanted Doris to do some work for him; that Doris came in and asked where the papers were and appellant pointed them out to her; that he did not take the applications to Austin; that he did not know the law required the person making the acknowledgment to be present; and that such was not the practice in Brady, Texas.

The testimony of Doris Sayles, who was Mrs. Grover C. Cunningham at the time of this trial, reflects that appellant asked her to come to his office on many occasions in reference to notarizing the applications of veterans and that none of the veterans were ever before her when the acknowledgments were completed. She further testified that when she read of the investigations of the Veterans Land scandals and talked to the appellant that he informed her he would tell them he was responsible.

Appellant’s testimony shows that he borrowed the money to make the down payments for the 54 veterans on the Rosenow tract; and that he had quite a few dealings with Bascom Giles, who was the Commissioner of the General Land Office and also shown to he the Chairman of the Veterans Land Board in the State of Texas.

The state’s testimony amply reflects many telephone calls from Brady made by the appellant and Ruffin to Giles at Austin and, in turn, numerous calls were made by Giles to appellant at Brady during the time of this and other transactions. The testimony of the state further reflects that the 10,000-acre Rosenow Ranch was purchased by appellant and others for $16 per acre; that the appraiser for the Veterans Land Board first appraised the land at $27 per acre and was later instructed by Bascom Giles to add $5 per acre to the valuation. The state’s exhibits show receipts issued to appellant for fifty-four cashier’s checks to the Veterans Land Board for the 5% down payment on each loan, plus the fifty-four receipts for cashier’s checks for the $50 closing fee on each tract. The state further showed that appellant assigned fifty-one commitments made by the Veterans Land Board to veterans for the land subdivided in the Rosenow Ranch tract to Bankers Life & Casualty Company of Chicago.

While the evidence of Doris Sayles Cunningham and L. V. Ruffin is accomplice testimony, it directly shows that appellant was a principal in this and other transactions. We conclude that the testimony of Mrs. Jerrie Rankin, in addition to the other testimony, is sufficient to corroborate the testimony of these two accomplice witnesses. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340.

The question as to Míreles being an accomplice was submitted to the jury. We do not think the proof shows that he was an accomplice. In our opinion, he was an innocent veteran with' little education, looking for an easy one-hundred-dollar pick up. We hold the evidence sufficient to show appellant to have been a principal throughout the transaction involved. It is unnecessary to corroborate the entire narrative and all of the testimony of an accomplice. Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046. Every constituent element of the offense as testified to by the accomplice need not be corroborated. Williams v. State, 59 Tex.Cr.R. 347, 128 S.W. 1120; Shaffer v. State, 121 Tex.Cr.R. 137, 52 S.W.2d 1054. Also, see: Contreras v. State, 144 Tex.Cr.R. 285, 162 S.W.2d 716, which holds that it is not necessary that the corroborating evidence support that of the accomplice to each crim-inative fact but is sufficient if the corroborating evidence tends to connect the accused with the offense charged.

Appellant strenuously urges by lengthy brief and oral argument that the trial court erred in overruling his objections to the court’s charge. The record before us reflects that the trial court filed its first charge at 1:55 p. m., on February 6, 1961, and that the appellant took exceptions and objections to it, embodying some forty-two pages. The court then filed another charge at 9:45 p. m., on February 7, 1961. From this state of the record, it is not entirely clear to us that the appellant excepted and objected to his second or last charge of the court, which was the one read to the jury. We do resolve any doubt in this connection in appellant’s favor and adopt his premise that he also made exceptions and objections to the final charge of the court. We do not find, however, that the appellant took exception to the ruling of the court in overruling his exceptions and objections to this charge of the court. In the absence of such exception, appellant’s complaint to the charge is not before us for review. Stone v. State, Tex.Cr.App., 346 S.W.2d 323; Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291; Redman v. State, 162 Tex.Cr.R. 524, 287 S.W.2d 676; Medlock v. State, Tex.Cr.App., 356 S.W.2d 312. For like reasons, the complaints to the refusal of requested charges are not before us. Medlock v. State, supra, and cases cited.

Appellant next complains that the trial court erred in overruling his motion to quash the indictment. We think this contention is without merit. The indictment in the second count alleged, in substance, that appellant did unlawfully and with the intent to make money and with the intent to defraud, knowingly utter, publish, pass, and use as true and genuine, to the Veterans Land Board of the State of Texas, a certain false and forged acknowledgment to a certain instrument in writing relating to and affecting title to land, and that when the appellant did utter, publish, pass, and use as true and genuine the said instrument in writing, he well knew that said acknowledgment was false and forged.

The failure to allege how and by whom the acknowledgment was falsely made did not render the indictment insufficient. Updack v. State, 131 Tex.Cr.R. 134, 96 S.W.2d 979.

Appellant fourthly complains of the action of the trial court in overruling his motion to change venue from Hill County because of local prejudice against him. No affidavits of compurgators in support of the change of venue were filed. A motion for change of venue must be supported by affidavits of at least two compurgators in order to be considered. Philpot v. State, Tex.Cr.App., 332 S.W.2d 323; McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521, 354 U.S. 936, 77 S.Ct. 1405, 1 L.Ed.2d 1536; Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90. This complaint is also without merit.

Appellant’s contention that the second count of the indictment shows that it was barred by the three-year statute of limitation is without merit. The record shows that the offense was alleged to have been committed on or about the 20th day of May, 1954, and the indictment was returned June 11, 1959. Art. 177, Vernon’s Ann.C.C.P., fixes' the limitation period for this offense at ten years. By the holding of this court in the first Sheffield case, 165 Tex.Cr.R. 354, 307 S.W.2d 100, the offense here charged is within the forgery offense, and the ten-year statute applies to forgery. The same is true of the offense defined in Art. 5421m, Sec. 32, supra. So the offense is not barred.

Lastly, the appellant complains of the action of the trial court in overruling his application for probation. No error is-shown. Probation is discretionary with' the trial court. McClane v. State, Tex.Cr.App., 343 S.W.2d 447.

We have carefully considered and examined all of the remaining contentions of appellant, along with the numerous informal bills of exception, and find no error reflected in any of them.

Finding the evidence sufficient to sustain the verdict of the jury and finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

Appellant contends that the contract of sale and the assignment which is-set out and referred to in the indictment as “a certain instrument in writing” relate-to the sale of real estate, and are in violation of the provisions of Art. 1137⅛. V.A.P.C. This statute prohibits any person subdividing real estate from using the subdivision’s description in any deed of conveyance or contract of sale delivered to a purchaser unless and until a map or plat has been duly authorized and filed for record with the clerk of the County Court of the county where the real estate is situated-He further contends that the statutory prohibition with a penalty imposed renders the contract of sale and the assignment void. Therefore, the assignment on which this-prosecution rests could not be made the basis of forgery and the appellant could not be guilty as charged.

At first attention is directed to the provisions of .Art. 1010, V.A.P.C., to the effect that upon,.indictment under Chapter 2 o£ Title 14, it shall be no defense that Ae instrument was in law, either as to substance -or form, void.

The first paragraph in the contract of sale consists of an application to purchase real estate from the Veterans Land Board -of Texas. The contract is subject, among other conditions, to the commitment of the Board not being below the contract price. Next, the contract is subject to the defects, if any, in the title. The assignment depends on certain terms and conditions, and is also subject to acceptance by the Board.

It is apparent from the contract that it is an executory contract to convey and not such a contract of sale per se as passes either legal or equitable title. The assignment is in the same condition. Currie v. Burgess, 132 Tex. 104, 120 S.W.2d 788; Tashnek v. Hefner, Tex.Civ.App., 282 S.W.2d 298. Art. 1137h, supra, relates only to deeds and contracts of sale delivered to a purchaser. Therefore, the assignment set out and designated in 'the indictment as “a certain instrument in writing” is not void because it does not come within the terms of the aforesaid article.

It is insisted that there is a fatal variance between the allegations of the indictment and the proof because the description of the real estate is violative of Art. 1137h, supra, which renders the contract of sale and its assignment void. This contention is controlled by the holding herein that said article is not applicable to the instruments here in question.

It is strenuously re-urged that the evidence is insufficient to support the conviction on the ground that there is no showing that Doris Sayles, the notary, had any fraudulent intent when she certified that Mireles had appeared before her in the making of the acknowledgment.

In addition to the disposition made of this contention in the original opinion, it is further concluded that without regard to wheAer Doris Sayles innocently, or while acting as a principal, certified that Mireles appeared before her as a notary, the evidence is sufficient to warrant the finding that the appellant had the intent to defraud and was a principal in Ae commission of the offense charged.

The motion for rehearing is overruled.

Opinion approved by the Court.

CONCURRING OPINION ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant’s counsel has tendered to this Court as an exhibit to his motion for rehearing a stipulation executed by all the prosecutors involved and joined in by himself in which it is agreed that he did in fact except to the action of the court in overruling his objections and exceptions to the charge and that such exception was, through inadvertence and oversight, omitted from the certificate of the court.

There is no escape from the conclusion that if we considered such stipulaton we would in effect be permitting an amendment to a bill of exception long after Ae statutory time for filing the same has expired and would be overruling a long line of auAorities which hold that such may not be done.

In the recent case of Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144, we held that the district clerk was without power to antedate or attempt to file back objections and exceptions to the court’s charge. Therein, we cited Ortiz v. State, 121 Tex.Cr.R. 438, 53 S.W.2d 58, as authority for the rule that this might not be done even with the consent of the trial court. The effect of such holding is that a bill of exception must be perfected under Article 760d, V.A. C.C.P., within 90 days after the giving of notice of appeal and that once that time has elapsed no bills filed or perfected thereafter will be considered.

In Tindol v. State, 156 Tex.Cr.R. 187, 239 S.W.2d 396, we said:

“In this connection attention is directed to the rule that a bill of exception becomes an unamendable instrument once the appeal is perfected and the time for filing such bills has expired, because the trial court is then without jurisdiction to make any order whatsoever in the case. For this Court to allow the filing of amendments or additions to bills in cases on appeal would so complicate and delay the adjudication of a cause of action that this Court might never remain current with its docket. This we must do in order to properly perform our function in the judicial system.”

See also Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362, and Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291, and cases there cited.

I join in the overruling of the motion for rehearing.


author: McNEILL, Justice.

text:
    Alvin KEOWN et al., Appellants, v. C. H. MERIWETHER, Appellee.
    No. 6632.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Rehearing Denied Oct. 9, 1963.

      C. M. Bradford, Orange, for appellants.
    Feagin W. Windham, Orange, for appel-lee.
   McNEILL, Justice.

Appellee Meriwether filed suit seeking to •enjoin appellant Keown Supply Company from obstructing a 30 ft. right-of-way easement which appellee claimed crossed land belonging to appellant. The petition alleged appellee owned a written easement and it was prayed that the right-of-way be •cleared of obstructions, that a fence across the easement be removed and for a permanent injunction against appellant from interfering with said easement in the future. In defense, appellant pleaded: (1) it was a subsequent purchaser for valuable consideration without notice of the easement;

(2) that appellee was guilty of laches and estoppel; (3) the two and four years ■statutes of limitation; (4) that there had been a dedicated way or county road that had existed since 1901 which reached the south line of appellee’s property and that he had agreed to accept this county road as a right-of-way in lieu of his alleged easement.

A jury heard the cause. It found in answer: to Special Issue No. 1 that the Keown Supply Company, at the time it bought the land over which the easement ran, had actual knowledge of the existence of such easement; to the second issue that appellee had not agreed to accept the county road in place of the easement; to the fifth issue that appellee by his conduct had not led the supply company to believe that he would accept the county road rather than the easement. On this verdict, the trial court rendered judgment in behalf of ap-pellee.

Appellant urges reversal upon four points. The first, is that the trial court erred in failing to submit to the jury two specially requested issues under its defense of laches. These issues were: (1) “When do you find, by a preponderance of the evidence, that the defendant Keown Supply Company, first obstructed the easement, if any, with a fence ? ” (2) “When do you find, by a preponderance of the evidence, that the plaintiff’s cause of action, if any, first accrued ? ” The trial court refused these issues and we think properly so.

In the first place, the defense of laches is unavailable to appellant against the cause of action asserted because the five and ten year statutes of limitation relating to actions affecting real property were applicable to actions of this kind. Chenowth Bros. v. Magnolia Petroleum Co., et al., Tex.Civ.App., 129 S.W.2d 446. It was said in Hendricks v. Martin, Tex.Civ.App., 267 S.W. 1047 at p. 1051: “The rule is that, where an alleged cause of action, either legal or equitable, comes within any specific provision of the statute of limitations, then the equitable defenses of laches and stale demand do not apply. In such cases the statute of limitations will govern and must be pleaded.” To the same effect is Walton v. Harigel, Tex.Civ.App., 183 S.W. 785. The present case involves a private easement. The question is not to be confused with a public easement which is protected from the claims of limitation under Art. 5517, Vernon’s Ann.Tex.Civ.St.

Even if the defense of laches would be applicable, the court correctly-refused the issues, for mere delay for any period does not in itself show laches. The delay must be shown for an unreasonable time and also to have resulted in injury to another person. City of San Antonio v. Castillo, Tex.Civ.App., 293 S.W.2d 691; 35 T.J.(2), Sec. 5, p. 464. The requested issues therefore constitute an incomplete submission of the elements constituting laches. Issues constituting only an incomplete submission of an ultimate question or issue are properly refused. South Western Settlement & Development Corp v. State, Tex.Civ.App., 282 S.W.2d 78; Pacific Employers Ins. Co. v. Brasher, Tex.Civ.App., 234 S.W.2d 698; Hodges on Special Issue Submission in Texas, Sec. 68, p. 168.

Appellant also says that said issues should have been given for the reason that it pleaded as defense the two and four years statutes of limitation. No citation supports this proposition and we have been unable to see the relevance of such defense.

Appellant asserts that the answers to the issues submitted were against the great weight and preponderance of the evidence. We have carefully read the statement of facts. There was conflict on the question of whether at the time appellant purchased the servient estate it had notice of the unrecorded easement; but, we are unable to say the finding was against the great weight and preponderance of the evidence. As to the two issues submitted by the court regarding the agreement to accept the county road, we have serious doubt that there was justification for their submission in the first place. The most that was testified to by Mr. Keown, president of the company, as to any agreement was that at one time appellee had agreed if the county road was properly graded and shelled that he would accept it in lieu of the easement. That this agreement ever existed was contradicted by appellee. It was shown unquestionably that part of the right-of-way of the county road leading to appellee’s land was still marshy, full of cattails, lilies, and willows, and still impassable at the time of trial; that while the southern-section of the county road had been filled in, the northern end of it existed only on-paper and it could not be traversed except with hip boots. So, even if the agreement had been made, the road had not been completed as required by the agreement. The jury having evidence both ways of a substantial nature and having decided the issue, its verdict is impervious to the assault made.

It is urged that the court erred in failing to grant appellants’ motion for new trial on the ground of newly discovered evidence. The evidence urged was merely impeachment evidence and of a very weak nature at that. It was not shown that diligence was used to obtain this evidence before the trial and the trial court did not abuse its discretion in overruling the motion-on this ground. 31 Tex.Jur., Sec. 82 p. 91, Sec. 84 p. 95.

The last point urges that several of the jurors who deliberated in the instant case had served on a jury in a case that had just previously been disposed of and since the jurors in this prior case had agreed to be bound by a majority vote on a damage issue in that case, this tainted the verdict in the instant case. The trial court heard evidence on this point at hearing of the motion for new trial. There was no testimony that any of the jurors made any such agreement as to any of the issues in the case at bar. The point is based on remote inference or speculation and we therefore decline to sustain it. Compare Tex. & N. O. Ry. Co. v. Rooks (Tex.Com.App.), 292 S.W. 536(16).

The judgment is affirmed.


author: DAVIS, Justice.

text:
    MERIT CLOTHING COMPANY, Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY et al., Appellees.
    No. 7511.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 10, 1963.
    Rehearing Denied Oct. 8,1963.
    T. D. Wells, Paris, for appellant.
    Moore & Lipscomb, Paris, Malone, Lipscomb, Seay & Gwinn, Dallas, for appellees.
   DAVIS, Justice.

This is a suit against an assignee and an insurance company as the result of a voluntary assignment for the benefit of creditors. 6 T.J. (2) 479, Sec. 4. On April 10, 1958, John W. Luttrell executed an assignment for the benefit of his creditors to all the goods, wares and merchandise of a dry goods business in Honey Grove, Fannin County, Texas, to John B. Black. To the assignment, Luttrell attached an inventory and a list of all the creditors and the amount that Luttrell owed to each. Black accepted the assignment and made an application to the county judge to fix a bond. The county judge fixed the bond at $5,000.00. Black executed the bond, but he did not file it until April 18, 1959. According to Art. 266, Vernon’s Ann.Tex.Civ.St., Black was supposed to have filed the bond within five days.

On August 20, 1958, appellant sued Lutt-rell in the District Court of Fannin County. Luttrell filed no answer and a judgment was taken against him. Apparently the appellant had given notice to Black, the assignee, about his claim, and Luttrell went to see the attorneys who filed the lawsuit to try to make a deal with them whereby they would permit him to open up his dry goods business and make them weekly payments. No agreement was worked out, and in 1959 appellant sued Black and the Commercial Standard Insurance Company. The law that was in existence at the time of the assignment for the benefit of creditors governs. 6 T.J. (2) 471, Sec. 5.

The case was carried on the docket in excess of two years. During this time, appellant was trying to get a settlement of its judgment. Finally, one of the attorneys for one of the appellees in a conversation with the district judge asked him to set the case for trial. There is some argument about when the setting was made. Regardless of the date of the setting, the attorney for appellant was not notified of the setting until Friday afternoon, May 25, 1962; the case was set for trial on Monday, May 28, 1962.

At the time of the filing of the suit, there was a partnership between Frank Wear and T. D. Wells. Their partnership was ended in April, 1961. T. D. Wells signed the original petition, took four depositions, and did all the rest of the work concerned with the case.

On the afternoon of May 25, 1962, the attorney for appellee Black called the attorney for appellant and told him that the case had been set for trial on May 28, 1962. In the course of the conversation, the attorney for appellee Black advised the attorney for appellant that he had an appointment with a doctor in Dallas on Monday afternoon, May 28, 1962, at 2:00 o’clock p. m. He did not indicate that he would contest a motion for continuance. At any rate, the attorney for the appellant, a resident of Paris, Texas, wrote a letter to the district clerk at Bonham, Texas, and enclosed a check for $5.00 for jury fee deposit. On Monday morning, attorney for appellant presented a motion for continuance based upon Rules 330(b), Vernon’s Ann.Tex.Rules of Civil Procedure, to the effect that the case had been set for trial without any notice to the attorney for appellant, and that appellant could not safely go to trial. The motion for continuance was contested, was overruled, and the appellant was put to trial. Judgment was entered that appellant take nothing against the assignee Black and the insurance company, and the appellant has perfected its appeal. It brings forward five points of error.

By its first point, it says that the trial court erred in overruling his application for a continuance. It bases its point on the fact that it received no notice of the setting prior to May 25, 1962, and the case was set for trial three days thereafter, on May 28, 1962. There is no argument that appellant had no notice of the setting until the afternoon of May 25, 1962. We think it was error for the trial court to overrule the motion for continuance. Rule 330(b), V.A. T.R.C.P., Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428.

By its 3rd and 4th points of error appellant says the court erred in not holding appellees Black and his insurance company liable to a creditor where assignee had acted in concert with assignor in defrauding all of assignor’s creditors, and had turned all of the assets over to assignor without paying any creditor anything, and in not holding both the appellees liable because the as-signee did not file his bond until more than a year after the assignment. Art. 266, V.A. T.C.S., provides in part: “ * * * if such assignee shall not within five days after the delivery of the assignment, execute an approved bond and file the same as herein provided, such assignment shall nevertheless take effect as against the assignor and his creditors. * * * ” (Emphasis added). It appears from this provision of the statute that equity will provide a remedy whereby this creditor should be able to recover his judgment. Arts. 267 and 268, V.A.T.C.S.; Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801. The appellant further alleged that certain things were done to fraudulently defeat the claims. The assignee accepted the assignment with the inventory attached, and did not do anything except sell $35.00 worth of merchandise to pay the premium on the insurance policy and then turned the key back to the assignor. This was all done on contract in writing for the benefit of the creditors. It appears that fraud was proved. Nabours v. McCord, 97 Tex. 526, 80 S.W. 595; Fidelity Union Ins. Co. et al. v. Hutchins et al., 134 Tex. 268, 133 S.W.2d 105.

It is hoped that the error complained of in the second point will not occur in the future, because appellant had a right to be notified of the setting of his case in plenty of time to pay the jury fee and have a jury available.

By its point five, the appellant did not in truth and in fact raise a point of error. It goes to the admission of hearsay and opinion testimony obtained by leading questions. It points out no specific error complained of. There were some leading questions asked, some hearsay testimony admitted, and some opinions were expressed, but the point as stated fails to reveal any specific error.

Points 2 and 5 are overruled.

For the errors hereinabove pointed out, the judgment of the trial court is reversed and the cause is remanded.


text:
    CITY OF NACOGDOCHES, Appellant, v. Garland McLEROY and Joe Slay, Appellees.
    No. 6634.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Moss Adams, Jr., Nacogdoches, for appellant.
    Fulmer, Fairchild & Badders, Nacog-doches, for appellees.
   McNEILL, Justice.

Appellees, two former policemen of the City of Nacogdoches, sued the City under the provisions of Art. 1583-1, Sec. 6A, Vernon’s Ann. Penal Code, for wages allegedly due them for working overtime hours per week. These actions were separately instituted but were consolidated and trial before the court resulted in judgments, for them.

Sec. 6A of Art. 1583-1, Penal Code, is r

“Sec. 6A. It shall be unlawful for any city having more than ten thousand (10,000) inhabitants, according to the last preceding Federal Census, to require or permit any policeman to work more hours during any calendar week than the number of hours in the normal work week of the majority of the employees of said city other than firemen and policemen.
“Provided, however, that in any such city having more than ten thousand (10,000) inhabitants, in the event of an emergency, policemen may be required to work more than the number of hours in the normal work week of the majority of other city employees; and in the event policemen are ordered to work a greater number of hours than the number of hours in such normal work week ■of other city employees, such policemen shall be compensated for any such overtime at a rate equal to one and one-half times the compensation paid to such policemen for regular hours. Added Acts 1959, 56th Leg., p. 781, ch. 356, § 2.”

It was shown the City contained more than 10,000 inhabitants according to the last Federal Census and that the City’s fiscal year began April 1st. McLeroy claimed the work week for a majority of the City’s employees, other than City policemen and firemen, was 44 hrs. per week, but that he was required to work 48 hrs. per week from April 1st, 1960 to January 15, 1961; and Slay claimed he was required to work 48 hrs. per week from April 1st, 1960 to August 9, 1961.

Appellant first says the trial court ■erred in putting it to trial in the consolidated case since the Slay case had not been set for trial prior thereto. The parties had agreed to setting the McLeroy case for trial on October 19, 1962. On that day attorneys for McLeroy moved the cases be consolidated. The motion was granted. Trial then started over the City’s objection that it was not ready as to the facts involving Slay’s claim. After some discussion, the court assured City it would have time to prepare its defense as to the Slay ■demand. After hearing the case on October 19th, the court recessed until Thursday of the following week, and stated if the parties were not then ready to resume the trial, he would set it for another date. The following Thursday the trial resumed and no contention was then made that the City was not fully prepared with its defense. The point is without merit.

It is also asserted that the evidence is insufficient to support the judgment. No findings of fact were made. In behalf of appellees it was shown that most of the City’s employees, other than firemen and policemen, worked 44 hrs. a week; that this was the desired work time; that the City employees strive for a 44 hr. week; that this was the minimum period of employment. It represented 8 hrs. per day from Monday thru Friday and till 12 noon on Saturday. The City offered in evidence an instrument containing the actual work hours of all employees, other than policemen and firemen, for the period involved. This list shows that the average hours worked per week of these employees were substantially more than 44 hours. Some of these employees were paid by the month, but 59 were hourly employees. The monthly employees were the City Manager, heads of departments and a few foremen. Their work week varied considerably, although there was testimony that even their hours of employment tended to the 5½ day week.

Whether the evidence was sufficient to support the court’s implied finding that the “normal work week” of the majority of employees, other than firemen and policemen, was 44 hours, depends upon the meaning of “normal” work week. Is it to be determined by adding up the actual hours the employees worked per week; and if so, what weeks are to be considered ? To continue, we quote appellees’ argument:

“ * * * The statute prohibits, at its very outset, a city from requiring or permitting ‘any policeman to work more hours during any calendar week than the number of hours in the normal work week,’ etc. This presupposes that the ‘number of hours in the normal work week’ shall be known at least during that week, in order that the city may obey the mandate of the statute. If the actual number of hours worked by the other city employees during that week determines the matter, what the ‘normal work week’ of the other city employees is cannot be known until the work week has ended, too late for the city to comply with the statute. Is ‘normal work week’, then, to be determined by averaging the hours worked by the other city employees over a certain number of weeks preceding the particular week involved? If so, over how many weeks? If so, must the normal work week be recomputed at the end of each week?”

It is our duty to construe a legislative act so as to make it workable rather than unworkable and futile. 39 Tex.Jur., Sec. 110, p. 205, Sec. 118, p. 222.

Appellant says we should take the actual hours worked of employees over the entire period involved and the “average” therefrom would be the “normal” work week. This would take into consideration overtime hours in excess of the basic work week. We do not believe this is the proper construction. Rather the normal work week is that fixed by rule or custom, the regularly established, prescribed, or basic work week. From the City’s brief we quote Webster’s New Collegiate Dictionary defining “normal” as:

“According to, constituting, or not deviating from, an established norm, rule or principle; standard; regular; natural.”

Appellees’ brief cites the primary meaning of “normal” in very similar language, their authority being Britannica World Language Edition of Funk & Wagnalls New Practical Standard Dictionary as follows:

“1. In accordance with an established law or principle; conforming to a type or standard; regular; natural.” It was shown in the present case that the basic work week of some 59 hourly employees was 44 hours. This is the “normal” work week of these employees; and they constituted the majority of the City’s employees, other than firemen and policemen.

The judgments of the trial court are affirmed.


text:
    Dorothy Williams DENT et vir, Appellants, v. Mrs. T. S. FALVEY, Appellee.
    No. 6523.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Behearing Denied Oet. 9,1963.

      Ralph Balasco, Houston, for appellants.
    McClain & Harrell, Conroe, for appellee.
   McNEILL, Justice.

The Dents, appellants, sued Mrs. Falvey, appellee, for damages for injuries to Mrs. Dent alleged to have occurred when the Dents’ Chevrolet was struck by Mrs. Fal-vey’s Cadillac as the cars traveled northerly •over an overpass along Interstate Highway 45, a 4-lane divided arterial highway in Montgomery County.

The highway was under construction but parts of it were finished. The finished part had two north bound lanes and two south bound lanes. These lanes were marked. Mrs. Falvey left Houston about 3 p. m. and was returning to her home in Conroe. Mrs. Dent and her two small sons traveled behind Mrs. Falvey for a considerable distance — because of the construction, much of the way was two laned, one for cars going south and the other for cars going north. It was misting rain, but the visions of the drivers were not impaired. The two cars were going about 40 miles per hour and held their relative position some 45 feet apart.

As they approached the overpass where the collision occurred, the highway had been completed and the two lanes of travel each way began. At this place Mrs. Falvey moved over into the right lane and Mrs. Dent continued on into the left. As Mrs. Falvey traveled up the incline of the overpass she saw ahead in her lane, a barricade which had been placed there by workmen who had been painting the metal railings along the east side of the bridge of the overpass. She immediately put on her brakes, and her car’s brake lights came on. Immediately upon noticing the brake lights on the other car, Mrs. Dent saw the barricade in Mrs. Falvey’s lane. She did not change the speed she was traveling, about 40 miles per hour. Due to this, Mrs. Dent was in the act of passing the Cadillac; in fact, the front of the Chevrolet had just moved ahead of the front of the Cadillac, when the latter turned left and it’s left front end struck the Chevrolet just behind the right front wheel. Neither car moved appreciably, after the impact; but substantial damage was done to both cars. Just before the impact occurred, Mrs. Dent heard one of her sons, who was sitting by her, scream, and looking backward, saw the other car was about to hit hers, causing her to put on her brakes.

The jury found: (1) Mrs. Falvey failed to keep proper lookout; (2) she changed lanes without first ascertaining such change could be made in safety; (3) she failed to make proper application of her brakes; (4) she failed to bring her car to a stop before the collision, and this was negligence; (5) she failed to turn her car to the right before collision and this was negligence; and that each of said acts of negligence was a proximate cause of collision. In addition, Issues 13 and 14 and the jury’s answer thereto were:

“Do you find from a preponderance of the evidence that the failure on the part of Mrs. Dorothy Williams Dent to sound the horn on her automobile immediately prior to attempting to pass the car ahead of her was negligence as that term is herein defined for you ?
“Answer: We do.
“If you have answered Special Issue No. 13, ‘We do’, and only in that event, then answer:
Special Issue No. 14
“Do you find from a preponderance of the evidence that such negligence, if any you have found, was a proximate cause of the collision made the basis of this suit?
“Answer: We do.”

These two issues appear to have been submitted on the theory of common law negligence — not on the basis of Art. 801, Subdn. (F), Vernon’s Ann.Penal Code. All other issues relating to contributory negligence of Mrs. Dent were answered favorably to her. On the basis of the answers to Issues 13 and 14 the trial court rendered a take nothing judgment against the Dents.

Vigorous assault is made upon this judgment. It is contended (1) that Mrs. Dent was, as matter of law, not contribu-torily negligent in failing to sound her horn, and (2) as matter of law, her failure to sound her horn was not a proximate cause of collision. And alternatively, (3) the findings are without sufficient support in the evidence. Since these questions are akin, we will consider them together and, in doing so, it must be borne in mind that the accident happened on a multilane highway; therefore, not all of the rules of the road applying to single lane traffic necessarily apply. Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861; Wallace v. Taxicabs of Tampa, Inc., (Fla.App.) 112 So.2d 574. A person traveling upon a multilane roadway has the right to assume, in the absence of indication to the contrary, that a fellow traveler will continue in his lane of travel. This is so because Art. 6701d, Sec. 60(a), Vernon’s Ann.Civ.St., provides:

“The driver of a vehicle shall drive as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

What indication did Mrs. Dent have that Mrs. Falvey was going to move out of her lane into the inside lane? It is said that Mrs. Falvey had only three choices, (a) to hit the barricade, (b) to stop, or (c) to turn left. And that this was a situation putting Mrs. Dent on notice that Mrs. Fal-vey might turn left. It is undisputed Mrs. Falvey put on her brakes as she neared the barricade. And she stated she kept them on to the point of impact. When asked whether she assumed that Mrs. Falvey was slowing down when her brakes came on, Mrs. Dent testified:

“A. I had no way of knowing exactly what she was going to do. The only thing, that she had applied her brakes and, by that, I assumed she was stopping.
“Q. You could have assumed just as well that she was going to turn to the left, could you not?
“A. I don’t assume anybody is turning in any direction unless they give me a signal.
“Q. All right. And the reason you didn’t try was because, as you say, you thought Mrs. Falvey was going to stop.
“A. That’s true.”

Mrs. Dent further stated she saw no signal indicating Mrs. Falvey was intending to turn into the left lane ahead of her. Mrs. Falvey knew Mrs. Dent was behind her, but she did not know how far. Under the above quoted section of Art. 6701d, she owed the duty to ascertain whether she could turn into the left lane with safety before she started that movement. She testified her car was equipped with two rearview mirrors. — one above and at the middle of the windshield and the other outside at the left front corner of the car. She stated before she started turning into the left lane she looked in both mirrors and did not see a car. It can only be concluded therefrom that either the plane of the mirror on the left side of her car was not adjusted properly, or that she failed to look; for had she properly looked, she would have seen the Chevrolet approaching along side.

Where one lane of a multilane thoroughfare is obstructed, traffic in the other lanes have the right of way and in the absence of notice that a person in the obstructed lane intends to cross to another lane, the free traffic may move onward. A traveler in an unobstructed lane, ordinarily need not anticipate that a driver in the obstructed lane will attempt to change lanes until the movement may be done in safety. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Excel Ins. Co. v. Ocean Ac’dt & Guar. Corp., Ltd., 144 So.2d (La.App.) 561. To overcome this, Counsel for Mrs. Falvey says that since she stated that she put on her directional light after putting on her brakes, Mrs. Dent had notice that the Cadillac was preparing to come into her lane. Ordinarily, such a signal, with brake lights on, by a car in an obstructed lane of a highway as here involved would warn a traveler following in the adjoining lane that an attempt to move over into that lane would likely be made ahead of him.. But, Mrs. Falvey’s testimony about her directional light being on was poor indeed. There was no evidence of any other car in the vicinity of the two involved. Having said she saw no car behind her, as she prepared to make the turn, why, in the first place, was there occasion for turning on the directional light? Initially she testified she did put the directional light on. On cross examination, after stating she never turned the steering wheel to the right causing the directional light to trip off after starting the left turn, she said she examined her car after the accident and it had no lights burning; although in a deposition given before the trial she stated “the lights were all on”-. Her concluding testimony on this at the trial was:

“Q. As a matter of fact, Mrs. Fal-vey, you don’t really remember putting on a directional signal, do you?
“A. No. I wouldn’t swear that I put it on.”

Though the inconsistent statements made makes this evidence weak, it constitutes some evidence that the directional light was on. Herd v. Wade, Tex.Civ.App., 63 S.W.2d 253 (W.R.); U. S. Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224. In answer to the question as to when she turned on the directional light, she said: “Before I turned left, I turned — I turned the directional lights.”

Assuming it was turned on just as the brake lights lit up, could Mrs. Dent have seen it in time to have blown her horn and warned Mrs. Falvey from turning into the left lane? When she applied her brakes, she said she did not know Mrs. Dent’s car was near her. Mrs. Falvey could not estimate the distance she was then from the barricade. Since hers was the only testimony on this, we must accept Mrs. Dent’s estimate: the Cadillac was 1½ ar 2 car lengths, or between 40 and 50 ft. away from the barricade; and'she, Mrs. Dent, was one to two car lengths, or 40 to 50 ft. behind and to the left of the Cadillac at the time. Each travel lane measured 11 ft. in width, and the cars, as the Chevrolet gained on the Cadillac, were within about 5 ft. and along side of each other. In such situation, with a slight turn of the steering wheel one car would be out of its lane and into another. The cars were practically opposite each other at the time the turn was made.

Let us view the evidence from Mrs. Fal-vey’s viewpoint as we are required to do on the questions whether there is any evidence to support the findings: If Mrs. Dent had blown her horn immediately after she saw the Cadillac brake lights come on, would this have averted the crash ? When 40 to 50 ft. from barricade Mrs. Falvey put on her brakes and kept them on to point of impact; she turned on the directional light indicating left turn and her turn into the left lane was a gradual one. Mrs. Dent, 40-50 ft. back in the left lane, could have seen the directional light begin blinking on the Cadillac. Mrs. Falvey stated that she turned this light on before she started her gradual turn and she was then no farther than 50 ft. from the barricade. There existed in the interval between the time the, brake lights came on and the moment of impact less than 2 seconds. Let us assume that the Dent car was 100 ft. away from the barricade and about 40-50 ft. back of Mrs. Falvey when the lights of the Falvey car came on. Traveling at 40 miles per hour, the Dent car was going 58.6 ft. per second. It would, then, take a little less than 2 seconds to travel 100 ft. to a point opposite the barricade. From this distance should be deducted “reaction time” on the part of Mrs. Dent. No proof of reaction time is in the present record. In Teston v. Miller, Tex.Civ.App., 349 S.W.2d 296, we recognized that a short time, termed “reaction time”, exists for the driver of a car to comprehend a situation. In several jurisdictions ¾ of a second has been judicially noticed as the average person’s reaction time. Kaan v. Kuhn, (Wyoming) 187 P.2d 138; Wiebe v. Seely, 215 Or. 331, 335 P.2d 379; Mo. Pac. R. Co. v. Hancock, 195 Ark. 414, 113 S.W.2d 489; Ryans v. Blevins, D.C., 159 F.Supp. 234; Blashfield’s Cyc. of Auto. Law, Vol. 9C, Sec. 6237, pp. 410-413; Vol. 1 Blashfield, Sec. 751, p. 695; Dupre v. Union Producing Co., La.App., 49 So.2d 655; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; 84 A.L.R.2d 981. See also Dissent in Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, at p. 88. This rule has not been followed in decisions of intermediate appellate courts of Ohio, Georgia, and Florida. See McCoy v. Gilbert, 110 Ohio App. 453, 169 N.E.2d 624 ; 84 A.L.R.2d 964, 988, 989. However, other courts of Ohio have applied the rule. Ashbrook v. Cleveland Ry. Co. (Ohio App.) 34 N.E.2d 992; State v. Bush (Ohio Com.Pleas) 182 N.E.2d 43.

The Missouri rule, that., in_ the ab~ sence of proojLthe -court wiU-apply-reactien— time as ¾ of a second, West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48, commends_itself to us. ^Applying this rule, Mrs. Dent’s car traveled 43.95 ft. during such average reaction time. The collision occurred south of the barricade. How much south is not shown but since Mrs. Falvey was making a gradual turn to the left around the barricade, it must have been at least 15 ft. south. Subtracting 43.95 ft. + 15 ft. from 100 ft. leaves 41.05 ft., which at 40 miles per hour represents less than a second in which Mrs. Dent could have blown her horn and Mrs. Falvey could have, in turn, reacted to it in which to have averted the accident. Do these circumstances warrant the jury finding that had Mrs. Dent sounded her horn, the collision would have been averted ? We doubt it would have been; but our doubt is not sufficient to say, as a matter of law, there was no evidence of negligence in failing to sound the horn; nor to say as matter of law the failure to sound the horn was not a proximate cause of the collision. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (363). But when we consider all the evidence on these findings in answer to Issues 13 and 14, the evidence supporting such findings is so weak, inconsistent, and speculative as to be insufficient, and they should not stand. On another trial the reaction time of the parties may be proved as well as the distance south of the barricade where the collision took place; and a delineation of the Cadillac’s path as it gradually turned into the left lane could perhaps be shown.

It is also urged that Issues 13 and 14 were on the weight of the evidence in this: the undisputed evidence showed Mrs. Dent was not “attempting to pass” the other car as the circumstances bringing about the accident developed. The undisputed evidence does show Mrs. Dent was not “attempting to pass” the other car. She did not change the speed nor alter the course of her car. But the use of the complained of phrase in the issue was unfortunate. The phrase is one that has been adopted and used for years in connection with one car attempting to pass another on two lane roads; it does not seem appropriate for multilane highways. A phrase such as “the process of moving by” would appear to have been a better choice. The phrase used was a comment upon the weight of the evidence — in fact, the court unintentionally thereby supplied evidence where no evidence existed. However, in view of our holding that the evidence is insufficient to sustain the jury’s findings on Issues 13 and 14, it is unnecessary to decide whether the comment of the court upon the weight of the evidence was reversible error.

The judgment is reversed and the cause remanded.


author: NORTHCUTT, Justice.

text:
    NEW HAMPSHIRE FIRE INSURANCE COMPANY, Appellant, v. PLAINSMAN ELEVATORS, INC., Appellee.
    No. 7262.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1963.
    Rehearing Denied Sept. 3, 1963.

      Thompson, Coe, Cousins & Irons, Dallas, Day & Owen, Plainview, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Morehead, Sharp, Boyd & Tisdel, Plain-view, for appellee.
   NORTHCUTT, Justice.

For convenience we will adopt the statement of the nature and result of the case as given by appellee. Suit was brought in the District Court of Hale County, Texas, by Plainsman Elevators, Inc., a corporation, against New Hampshire Fire Insurance Company on two separate insurance policies. One of the policies insured a large steel grain tank for the amount of $50,000; two all-steel small grain tanks, $5,000 each; dump and motors, $3,000; all-steel leg, $10,000; and by endorsement the policy was enlarged to insure one Shantzer drier for the amount of $23,000. The second policy sued on issued by the Defendant insurance company was to cover grain stored by Plainsman Elevators, Inc., for the amount of $700,-000. Each policy was issued by the Defendant, New Hampshire Insurance Company, to Lider Grain & Fertilizer, and by endorsement changed to read Plainsman Elevators, Inc., instead of Lider Grain & Fertilizer. Each policy contained insurance against extended coverage which includes “explosion”. Plainsman Elevators, Inc. alleged that the loss occurred by reason of an explosion and the Defendant insurance company contended that there was not an explosion but that the loss was due to the structural failure of the tank.

Upon a trial of the case before a jury, the Court rendered judgment in favor of Plainsman Elevators, Inc., upon the answers of the jury to the special issues submitted. The judgment is severable as to each item insured; that is, it granted recovery as to each item insured based upon the separate answers of the jury to the special issues, the total of all of which items was for the sum of $78,858.22, which included interest on said amounts due Plainsman Elevators, Inc., from the date of April 7, 1960. From that judgment the New Hampshire Fire Insurance- Company perfected this appeal and will hereafter be referred to as appellant and the Plainsman Elevators, Inc. will be referred to as ap-pellee.

The first issue inquired if there was an explosion on November 6, 1959, in the large grain tank and the jury answered that there was and the remaining issues were concerning the damage as ,to the separate items sued for.

The appellant presents this appeal upon fourteen points of error. The first point .contends the court erred in admitting testimony of the witness, Weiland, with respect ,to hypothetical questions based upon assumptions of fact not supported by the evidence. After Dr. Weiland had testified for some time as to what he saw and other matters concerning his right to give his opinion as to whether there was an explosion, he was asked, this question: “Now, Dr. Weiland, taking into consideration all of the facts and circumstances that you have testified about here, and the pictures that you have examined, and the thermo-cables that you have examined — including this one here, do you have an opinion as to whether or not an explosion occurred out there as a cause for the rupture of this building, of this grain bin?” After that question was asked the following took place:

“MR. COUSINS: Your Honor, for the purpose of the possibility of an objection, may I ask one question?
“THE COURT: Yes. Go ahead.
“VOIR DIRE EXAMINATION.
“BY MR. COUSINS:
“Q Mr. Weiland,'assuming that you do have such an opinion, are the things which Counsel has outlined to you in his question the things which you have taken into account in arriving at that opinion ?
“A Y.es, they are.
’ “Q Are they the only things which you have taken into account?
“MR. SHARP: Now, if Your Honor please,- that wouldn’t be any cause for an objection—
“MR. COUSINS : Yes, it would, too. I need an answer to this question. I think it is.
“MR. SHARP: Well, I don’t care whether he needs it or not, that would not be any groundwork for any objection.
“THE COURT: Let him go ahead.
“Q (By Mr. Cousins) Let me ask this question. Mr. Weiland: Is your opinion in any way based upon what you were told by any of the people connected with Plainsman Elevators or with,any other engineer?
“A No, it is not.
“Q It is not?
“A It is not.
“Q Then, am I correct in assuming that the only things you have taken into account are the things which Counsel has suggested to take into account in arriving at your opinion?
“A That’s right.
“Q All right, sir.
“DIRECT EXAMINATION (RESUMED)
“BY MR. SHARP:
“Q Do you have such an opinion?
“A Yes, I do.
“Q What is that opinion, Mr. Weiland?
“A There was an explosion within the tank.”

After several other questions and answers were had this question was asked Dr. Weiland: “All right. Now, let us go into something of the pressure that an explosion can produce. Let us assume that we had a pocket from bridging. Let us say we had one the size of a bushel basket and it was exploded, can you tell the jury something of the pressure that that would create?” Appellant excepted to the question and was overruled by the court. It is from this overruling by the court that point one is addressed. The question as asked was not answered by the witness but the following proceedings took place:

“A The pressure that may be created by an explosion will easily be as high as seven thousand pounds per square foot. In other words, you have an area of a square foot, or if you have a box, say, a foot each way, the pressure that may be created in that box may be as much as seven thousand pounds on each wall of that box.
“Q Now, in relation to what that pressure would do, can you give the jury an example that would illustrate just how much pressure that is and what it would do or could do?
“MR. COUSINS: If Your Honor please, until such time as he relates what it is that an explosion such as seven thousand pounds per square foot, and that it has some relationship of what may have, in his opinion, exploded in this tank, we’re going to object to it.
“MR. SHARP: I’m talking about the type of gases that are produced from the grain that we have been talking about here.
“MR. COUSINS: I repeat my objection, if Your Honor please, until Mr. Weiland says that that’s the kind of pressure created by this kind of combustible gas. I’m going to object to any testimony about what would happen under seven thousand pounds per square foot.
“Q (By Mr. Sharp) Mr. Weiland, when you answer, why, relate it to the kind of explosion from the kind of gases that would be produced from the grain like you have testified about here.
“A Okay. The gases that are produced in addition to which we have referred in this case, such as the gases are formed by deterioration process, will produce sufficient energy, will liberate — the explosion of these gases will liberate sufficient energy to raise a weight of one ton to a distance of two hundred feet into the air.
“MR. COUSINS: How much gas are you talking about, Doctor? (Directed to the witness.)
“A What?
“MR. COUSINS: How much gas are you talking about? . (Directed to> the witness.)
“A I’m talking about a cubic foot of this gas.
“Q (By Mr. Sharp) All right. And would that be sufficient pressure, Doctor, in your opinion, to cause a collapse of a building like we have been — like built out of steel that you saw out there ?
“A Yes, it certainly would.
“Q Is it your opinion from all of your examinations, investigations, that such an explosion did occur?
“A Yes, it is.
“Q And at the occasion that we'are talking about on the morning of November 6, 1959, in the Tank No. 1 that you viewed the pictures of?
“A Yes, sir.”

The final answer was not objected to. There were similar questions propounded to the expert witnesses concerning the power of an explosion and the cause thereof and received without objection. The question involved was whether there was an explosion. Two of the expert witnesses testified in favor of appellee and one in favor of appellant. The point complained of was not based upon a hypothetical question as to whether or not there was an explosion but was as to the pressure that would be created.

It appears to be settled in this state that objections to certain evidence are unavailing when similar evidence to the same effect is offered and received without objections. Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506 (NRE); Lubbock Bus Company v. Pearson, Tex.Civ.App., 277 S.W.2d 186 (NRE); Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253 (writ refused). Appellant’s first point of error is overruled.

By appellant’s point two it is contended that the court erred in overruling obj ections to testimony of Weiland because it was based upon hearsay. We think what has been said as to point one above will dispose of issue two. No objection was offered to the testimony given by Weiland when he testified that his opinion was not based upon what he was told but was based solely upon the things counsel has suggested to take into account in arriving at his opinion. No objection was taken at that time as to the basis upon which Wei-land based his opinion that there was an explosion. Texas Employers’ Insurance Ass’n v. Hicks, Tex.Civ.App., 271 S.W.2d 460 (writ dismissed) and the cases there cited. We overrule appellant’s second point of error.

Appellant’s points three and four insist there was no evidence and insufficient evidence to sustain the findings of an explosion and the findings of explosion was against the overwhelming weight and preponderance of the evidence. Mrs. Frasier testified she was about one city block from the elevator and further testified as follows:

“Q (By Mr. Sharp) All right. On the morning of November 6, what— did you hear anything that woke you up, let’s put it that way.
“A What did I hear?
“Q Yes, ma’am.
“A Well, I heard a terrible noise. Do you want me to tell you what it sounded like?
“Q Yes, ma’am.
“A Well, of course, I was sound asleep, two o’clock in the morning or two-thirty, perhaps. I really don’t know. And it sounded just exactly like a jet plane flew over and broke the sound barrier. It was terrible. It just scared me to death. And I asked my husband, I said, “Oh, was that an earthquake?” And he just grunted. It didn’t scare him, so it didn’t bother me. I just went on to sleep.
“Q All right. You didn’t get up at that time?
“A No. I looked at my clock at the head of my bed and it said, I think, two or two-thirty. It has been so long I have forgotten really.
“Q And when did you later realize what had happened?
“A Not until twenty minutes to eight the next morning. I went to work. And I work right where I live. I just go through two doors. That time I worked; I don’t work now. And the girls came in and they said, ‘Did you see the elevator out there?’ And I looked out the door and there it was, just crumpled to the ground and sheet iron just laying everywhere, almost in my yard, and that’s what I seen, maize everywhere.”
Mr. Stowe testified as follows:
“Q And you are engaged in the operations of a gin out there at Lider ?
“A Yes, sir.
“Q And were you so engaged in November of 1959?
“A Yes, sir.
“Q Now, you know the location, do you, Mr. Stowe, of the Plainsman Elevators tanks there at Lider ?
“A Yes, sir.
“Q Approximately how far are they located from your gin ?
“A Oh, just across the street.
“Q And about how far are they located from your home where you reside out there?
“A Approximately a quarter of a mile.
“Q Approximately a quarter of a mile. Mr. Stowe, do you recall the morning of November 6, 1959, when they had difficulty with the tank out there of Plainsman Elevators?
“A . Yes, sir.
“Q Where were you at about two o’clock that morning?
“A I was home in bed.
“Q All right. Now, what was happening in reference to your gin? Was it running or not running?
“A Yes, sir, it was running.
“Q And is your gin located between the elevator and your home?
“A Yes, sir.
“Q All right.
“A Approximately.
“Q And what out of the ordinary did you hear out there that morning?
“A Well, about that time the morning there was a jar; something happened that woke me up. And as I turned on the side of the bed, well, I heard another commotion, about the same, and I run toward the window thinking something happened at the gin. And then I heard the third one.
“Q All right. Now, the first one that you heard, just about how loud or how did it sound, Mr. Stowe ?
“A Well, I couldn’t say exactly, but it was enough jar and enough racket that it woke me up, and you might say the house jarred or some — something there that woke me up like an explosion, I’d say — ”

There was other testimony supporting an explosion besides the testimony of the expert witnesses. We are of the opinion that there was ample evidence sustaining the jury’s finding there was an explosion. Appellant’s points three and four are overruled.

Appellant’s points five, six, seven and fourteen are presented together. All four of these assignments concern a Shant-zer Drier. The Shantzer Drier was not installed when the original policy in question was issued but was completed October 31, 1959. The rider to the insurance policy insuring the Shantzer Drier was dated November 25, 1959, and being effective from November 1, 1959. The damage here in question happened on November 6, 1959, being some nineteen days before the date of the rider insuring the Shantzer Drier. Appellant’s points five, six, and seven contend the court erred in admitting the endorsement attached to the insurance policy-applicable to the Shantzer Drier; in submitting the issues to the jury relating to the Shantzer Drier, and in granting judgment with respect to the Shantzer Drier. Then the fourteenth point contends the court erred in overruling objections to the testimony of the witness, Silverthorne, with respect to his legal opinion, he' not being qualified. It is admitted by the attorney for the appellant that Mr. Silverthorne was a local recording agent of the appellant and Mr. Silverthorne so testified. Mr. Silver-thorne testified he was called before November 6, 1959, by someone from the ap-pellee’s office for additional coverage. It is also undisputed that appellant knew of the accident here in question before issuing the rider dated November 25, 1959. It is also acknowledged that the appellant received and accepted the premium covering the Shantzer Drier from November 1, 1959. The policy was cancelled April 21, 1960. As to that cancellation Mr. Silver-thorne testified as follows:

“Q Mr. Silverthorne, when you cancelled that policy out in April, you cancelled it out on a short-term basis?
“A No, sir.
“Q But you did charge insurance on that Shantzer Drier from November 1 until the date it was cancelled?
“A Yes, sir.
“Q And as far as anybody denying that this Shantzer Drier, was not covered, you are not a party to that denial, are you?
“A No, sir,
“Q You say it was covered?
“A Yes, sir.
“Q And you were the agent for this company?
“A Yes, sir.
“Q You took this' man’s money and,' as far as you are concerned, it’s covered?
“A Yes,'sir.”

Since Silverthorne was appellant’s recording agent, his authority and the extent thereof was controlled by the provisions of the Insurance Code, Article 21.14, V.A.T.S. New York Fire Insurance Co. v. Reed, Tex.Civ.App., 138 S.W.2d 138 (writ refused); Home Ins. Co. of New York v. Roberts, 129 Tex. 178, 100 S.W.2d 91; Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59.

In the Shaller case the court stated:

“As such, his authority and the extent thereof was controlled by the provisions of the insurance code and his designation as the type of agent prescribed therein. The purpose of the statute was to vest local recording agents with authority co-extensive with that of the company insofar as. writing insurance is concerned and to remove all questions of the local agent’s actual or apparent authority from the field of cavil or dispute.”

It is stated in 44 C.J.S. Insurance § 266, p. 1070 as follows :

“The effective date of the policy does not depend on the time of delivery if the parties have agreed on another date, and the policy is effective from the time agreed on, although it is not delivered until after loss. When so stipulated, the policy on delivery may take effect as of a previous date.”

Appellant’s points five, six, seven and fourteen are overruled. By appellant’s eighth point of error it is contended the court erred in holding the jury foreman, W. M. Rankin, was qualified as a fair and impartial juror and in not setting aside the verdict and judgment. Appellant’s complaint is that Mr. Rankin did not disclose that he was a tenant of Mr. LaFont. Mr. Rankin owned a half, section of land he farmed and also farmed about one hundred acres owned by Mr. LaFont. Counsel for appellant asked Mr. Rankin if the attorneys represented him and he said Mr. LaFont did. Counsel did not go any further into this matter. The court on hearing for a new trial overruled appellant’s contention as to Mr. Rankin. We find nothing in the record of any misconduct on the part of Mr. Rankin and the finding of the trial court is binding on this court. Hollingsworth v. Williamson, Tex.Civ.App., 300 S.W.2d 194 (NRE); Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321 (NRE). Appellant’s point eight is overruled.

By appellant’s points nine and ten it is contended there was no evidence of the actual cash value of the grain tank and its related property and that the evidence was insufficient to sustain findings of actual cash value of the grain tank and its related property. The coverage as set out in the policy provided as follows: “Liability hereunder shall not exceed the actual cash value of the property at the time of the loss, ascertained with proper deductions for depreciation, nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss * * * ” The testimony herein was that there was no market value of the articles here in question. The evidence also showed the articles had just recently been constructed or installed and that there was no depreciation. The evidence then was to the effect that the property was of a certain cash value and also that the amounts testified to would be the reasonable cost of reproducing the property in the same condition that it was in before the happening of the matters here in question. We think under this record appellee was authorized to show the intrinsic value and show the original cost and the amount which it would have reasonably cost to replace the property with materials of like kind and quality and condition. Missouri, K. & T. Ry. Co. of Texas v. Crews, 54 Tex.Civ.App. 548, 120 S.W. 1110. It is stated in the case of Sarkesian v. Cedric Chase Photographic Laboratories, Inc., 324 Mass. 620, 87 N.E.2d 745, 12 A.L.R.2d 899, at 919 as follows:

“The original price in money of personal property having no market value, or the value of the materials and labor going into its production, has, in several actions for loss, conversion, or injury to such property, been held to be a proper element for consideration in determining the actual value of the property, or its value to the owner.”

There citing many Texas cases to that effect. See also 17 Texas Juris Prudence 2d, Page 156, Section 82. To the same effect is the case of Fire Ass’n of Philadelphia v. Coomer, Tex.Civ.App., 158 S.W.2d 355 (NWH). We overrule appellant’s points nine and ten.

Appellant’s points eleven and twelve insist there was no evidence to sustain the findings of the jury as to the amount of judgment covering the grain. It is admitted in appellant’s brief that it is liable under the policy for such sum of money as was expended in protection of the grain insured, then insists the expense testified to covered grain not in the tank and not insured. It is to be noticed the only grain inquired about was the grain in the large steel grain tank that was insured as item one. The evidence was that appellee expended $11,015.94 which was necessary to salvage the grain, that such expenditures were necessary and were reasonable. The jury answered $11,000, being $15.94 less than the actual itemized evidence that was shown expended to salvage the grain in the large steel tank. Appellant’s points eleven and twelve are overruled.

In the judgment of the trial court the court found that the amount of damages as found by the jury was due and owing to the appellee on April 7, 1960, and therefore, the appellee was entitled to interest at the rate of 6 per cent from April 7, 1960. By appellant’s point thirteen it is contended the court should have allowed only interest from the date of the judgment instead of April 7, 1960. The appellee had 90 days to make proof of loss under the terms of the policy as well as under the provisions of Article 5546, Texas Revised Civil Statutes. There is no question but that proof of loss was made within that time. Then appellant had 60 days after proof of loss to pay the amount of loss. The explosion or failure of the big grain tank happened on November 6, 1959. The court allowed 91 days as to filing proof of loss and 61 days thereafter as to the time for payment by appellant, thereby holding appellant owed the amount as found by the jury and was due on April 7, 1960, being 152 days after November 6, 1959. We think interest was due from the time appellant was obligated to make payment. Westchester Fire Ins. Co. of New York v. Cannon, Tex.Civ.App., 79 S.W.2d 920 (writ dismissed). Point thirteen is overruled.

Finding no reversible error, the judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    FAMOUS DEPARTMENT STORE et al., Appellants, v. STATE of Texas, Appellee.
    No. 7270.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1963.

      Clinton & Shelton, Boling & Griffith, Lubbock, for appellants.
    Fred E. West, Lubbock, for appellee.
   CHAPMAN, Justice.

A temporary injunction granted the State of Texas to prohibit the violation of Article 286a, Vernon’s Annotated Penal Code, commonly known as the Blue Sky Law, constitutes the subject matter of this suit.

“The Famous”, “Warehouse Sales”, Sad-.allah Moses, Angelina Moses, and Naoum I. Mousa, their officers, agents, servants, employees and attorneys were enjoined from “maintaining or running or engaging in the selling of clothing, clothing accessories, wearing apparel, footwear, and headwear •on successive Saturdays and Sundays and from operating each named store, both named stores, or each named store alternately on two consecutive days of Saturdays or Sundays.” Appeal is perfected by Mr. and Mrs. Moses and by Naoum I. Mousa from such order upon four points of error, the first of which is that the relief granted by the temporary injunction was the total relief that could be granted upon a trial on the merits and therefore was improper.

That the purpose of a temporary injunction is to preserve the status quo of the •subject matter of the suit pending a final trial of the case is without controversy in this suit. That appears to be a general principle of law. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Lowe and Archer, Texas Practice, Sec. 328 Injunction, Page 340. “The ‘status quo’ to be preserved by temporary injunction is ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.’” Transport Co. of Texas v. Robertson Transports, Inc., supra.

The Fort Worth Court of Civil Appeals has held that even if the preservation of the status quo should accomplish the objective of the suit this is, nevertheless, as it should be, for no man may engage in acts in violation of statutory law. Rattikin Title Company v. Grievance Committee, Tex.Civ.App., 272 S.W.2d 948, 955 (NWH). The El Paso intermediate court, in a usury case, held the status quo is that created by the law which fixes the maximum interest rates and prohibits usury. Gifford v. State, Tex.Civ.App., 229 S.W.2d 949 (NWH). Under the same reasoning then we would have to say the status quo in our case is that created by the law which' prohibits a place of business such as the Famous Store from opening on successive days of Saturday and Sunday for general business operations.

This then brings the question of whether the evidence is sufficient to support the State’s contention that the transfers made by Mr. and Mrs. Moses were invalid as an effort to circumvent the so-called Blue Sky Law and that both stores were actually one store owned by Mr. and Mrs. Moses.

The record shows Mr. Moses owns the building occupied by both “The Famous” and “Warehouse Sales”; that after Article 286a, Vernon’s Ann.Penal Code, became effective Mr. Moses transferred by bill of sale the “Warehouse Sales” merchandise to his wife, Angelina Moses, and continued to operate it on Saturday while “The Famous” was closed on Saturday and operated on Sunday; that after two criminal violations were filed on him his wife joined by him transferred “Warehouse Sales” to his brother, Naoum I. Mousa, who lived in Brownfield and worked five days each week as a mechanic for Good Pasture Grain Company; that Mr. Mousa did not know any of the brand names of the merchandise he purportedly owned; that a sign, “The Famous”, covered both stores as a unified front; that Mr. Moses had been observed during the week bringing merchandise from “Warehouse Sales” to “The Famous”; that Mr. Mousa did not have knowledge of withholding taxes or social security; and that all merchandise in “Warehouse Sales” came from and through Mr. Moses and he took care of payment of withholding taxes and social security. Mr. and Mrs. Moses sought to justify all those situations by the fact that his brother did not understand the language, that he was simply trying to help him, and that he, Mr. Moses, was both a wholesaler and retailer.

“Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. * * * There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it.” Transport Co. of Texas v. Robertson Transports, Inc., supra.

The trial judge had all the matters above related, and more, before him and had the opportunity to observe the witnesses and decide if they were telling the truth or not in connection with the operation of “The Famous” and “Warehouse Sales”. It is obvious he decided appellants were not telling the truth. If he did not believe appellants Moses were actual owners of only “The Famous” and that Mr. Mousa actually owned “Warehouse Sales” then there were sufficient facts and circumstances for him to conclude the procedures they followed were for the purpose of ■ circumventing Article 286a, Vernon’s Ann.Penal Code. Having done so, we cannot say he abused his discretion. There is evidence to support both the theories of appellants and appellee “but under such circumstances we are bound by the weight and construction given by the trier of the facts * * *.” Willbanks v. Montgomery, Tex.Civ.App., 189 S.W.2d 337 (refused WM).

The next point urged is that the pleadings of the State of Texas were insufficient as a matter of law.

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562. The Bednarz case also cites and quotes Rule 90 Vernon’s Annotated Texas Rules, wherein it says: “Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be determined to have been waived by the party seeking reversal on such account.”

It is obvious from reading the record that the case was tried on the theory that Mr. and Mrs. Moses owned, both stores and that “Warehouse Sales” was transferred to his brother’s name simply for the purpose of evading the law. Under the, authority just quoted we believe appellants cannot complain for the first time on appeal, of their contentions of insufficiency of the pleadings.

By their fourth and last point appellants contend the order of temporary injunction was not sufficiently specific in its terms.

In its order the court made a specific finding, in accordance with the penal statute, Article 286a, that unless the injunction issued there was danger of injuring the health, recreation, and welfare of the people of the state and county by the selling of the named merchandise on successive Saturdays and Sundays and from operating each named store, both named stores, or each named store alternately on two consecutive days of Saturdays or Sundays contrary'to the penal statute named. As stated above, the entire case was tried on the theory that the two stores are one and are owned by Mr. and Mrs. Moses. The judgment enjoined appellants from operating the two stores, which the court obviously found was actually only one store, on both Saturday and Sunday consecutively. When we take these facts into consideration, we believe the order was a sufficient compliance with Rule 683, Vernon’s Annotated Texas Rules.

Had the court found in favor of appellants, we also believe there would have been sufficient evidence to sustain such a finding, but under the rules above stated, we believe we do not have authority to say the court abused its discretion. Accordingly, the judgment is affirmed.


author: CLAYTON, Justice.

text:
    W. F. FARAH et al., Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF EL PASO, Texas, et al., Appellees.
    No. 5589.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 25, 1963.
    Edwards, Belk, Hunter & Kerr, Crawford S. Kerr, Jr., El Paso, for appellants.
    Travis White, City Atty., Robert J. Gal-van and John C. Ross, Jr., Asst. City Attys., Joe A. Morgan, W. Barton Boling, El Paso, for appellees.
   CLAYTON, Justice.

One of the appellees, Woodard & Lee Homes, was the owner of a lot located in a new and exclusive development in the City of El Paso, Texas, upon which lot the company proposed to build a home. The lot was located in a Zone District R-3 under the City’s Comprehensive Zoning Ordinance. Under the Dimensional Standards of such a District the following is provided:

B. Dimensional Standards:
“In R-3 districts buildings hereafter erected or structurally altered shall have:
“(1) A front yard of at least twenty-five feet in depth * *

Thé company applied for and received from appellee Board of Adjustment a variance to such restriction allowing the company to build to within fifteen feet of the front property line, a variance of ten feet. Plaintiffs (appellants), adjacent and neighboring property owners, appealed from the ruling of the Board of Adjustment by Writ of' Certiorari to the 65th District Court of El Paso County, Texas. The district court' sustained defendants’ (appellees’) motions for judgment, and this appeal is taken from such order.

As we view the matter before us, the only issue is whether or not there was “substantial evidence” before the Board of Adjustment to justify its ruling that granted the requested variance. The trial court found as a matter of law that there was such evidence, and that the Board had not acted capriciously, had not abused its discretion and such ruling was not arbitrary. This court, in a per curiam opinion, in the case of Brenner v. Daly, Tex.Civ.App., 337 S.W.2d 226 (1960, Ref., N.R.E.), reciting the following :

“This being an appeal from an order or decision of an administrative agency or board brings the controversy under what is known as the ‘substantial evidence rule.’ Under such situation, it becomes the duty of the trial court, and of this court, to ascertain whether or not there was substantial evidence to support the decision or order rendered by the Board in question.
******
“There can be no doubt in our minds but what there was substantial evidence to support the action of the Board. This being true, their action can only be reversed or canceled by proof of an abuse of discretion on their part. We think that no such abuse was shown by the evidence here and that, as a matter of law, the Board did not abuse its discretion. These Boards, or administrative bodies, are set up for very special purposes, and it is not the prerogative of any court to substitute its judgment for that of the Board and to hand down a decision that it thinks the Board should have handed down. The courts can only inquire into the substantial evidence feature and then determine whether there has been an abuse of discretion, as, for example, the court, in Gulf, C. & S. F. Ry. Co. v. White, Tex.Civ.App., 281 S.W.2d 441, 452 (n. r. e.), said as follows:
“ ‘Where certiorari is invoked to review the action of a Board of Adjustment, their findings on the facts are conclusive, if sustainable under any reasonable view of the record as a whole.’ Montgomery v. City of Dallas, Tex.Civ.App., 245 S.W.2d 753 (n.r.e.); Moody v. City of University Park, Tex.Civ.App., 278 S.W.2d 912 (n.r.e.); Southern Canal Co. v. State Board of Water Engineers, Tex. [159 Tex. 227], 318 S.W.2d 619; Rowton v. Alagood, Tex.Civ.App., 250 S.W.2d 264; Driskell v. Board of Adjustment, Tex.Civ.App., 195 S.W.2d 594 (n.r.e.).
“This type of decision by the courts has been held to be a matter of law; and we find, as a matter of law here, that there was substantial evidence to sustain the finding of the Board; and, further, that the Board did not abuse its discretion in rendering the decision that it did.”

A review of the authorities shows the foregoing to be the law in Texas today.

The decision of the Board, in the instant case, was arrived at after two hearings during which a good deal of testimony was heard and the members of the Board visited the proposed site of the applicant’s house. Without going into the testimony in detail, suffice it to say that, after a review of the record as a whole, we agree with the findings of the trial court that there was substantial evidence before the Board to support its ruling, and that the Board had not acted capriciously or arbitrarily,, nor had it abused its discretion, and we therefore affirm the judgment of the trial court.

Judgment affirmed.