author: DAVIS, Commissioner.

text:
    Roy THOMAS et al., Appellants, v. Rena THOMAS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Feb. 11, 1966.
    Reginald L. Ayers, Bell, Orr & Reynolds, Bowling Green, for appellants.
    G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellees.
   DAVIS, Commissioner.

Appellants seek to have treated as an advancement a conveyance made by Kate Thomas to the appellees, Rena and Elizabeth Thomas, sisters of appellants. KRS 391.140. Related issues are presented as to the appropriate date for fixing the value of the advancement (if it should be determined to be one) and whether the evidence supports the value urged by appellants. The trial court found as fact that the conveyance was made “ * * * for valuable consideration consisting of services rendered by Elizabeth Thomas and Rena Thomas (ap-pellees) to their mother, Kate Thomas, over and above the usual services rendered by a daughter to a mother and that said deed was not a gift”. Based on that factual conclusion, the trial court adjudged that the conveyance of the farm by Kate Thomas to her daughters, the appellees, was not an advancement.

Kate Thomas was the mother of seven children. Two of them, Rena and Elizabeth, lived with her all of their lives, except for approximately a year when Elizabeth had a home with her husband. Elizabeth’s marriage ended in divorce, after which she returned to Kate Thomas’ home to live. Kate Thomas died intestate, June 11, 1961. William Thomas, husband of Kate Thomas, died in 1931; Mrs. Thomas never remarried.

After the death of Kate Thomas the ap-pellees lodged for record in the Warren County Clerk’s office the deed which is the subject of this litigation. The deed was signed and acknowledged by Kate Thomas on April 19, 1954, and by its terms conveyed a farm of sixty-nine acres to Rena and Elizabeth Thomas, in survivorship, subject to a life estate reserved by Kate Thomas, the grantor. The consideration stated in the deed is “ * * ⅜ the sum of $1.00 cash in hand paid, and other good and valuable consideration paid * * * No U. S. documentary stamp was affixed to the deed.

Rena and Elizabeth Thomas presented evidence that they had rendered extraordinary services to their mother for many years. As noted, the trial court found as fact that the services were “over and above the usual services rendered by a daughter to a mother”. Without detailing the proof, we assume, but do not decide, that the services were extraordinary and compensable under the rule enunciated in Kellum v. Browning’s Adm’r, 231 Ky. 308, 21 S.W.2d 459. No proof was offered as to the monetary value of the services.

Appellants contend that this case is governed by Remmele v. Kinstler, Ky., 298 S.W.2d 680; Gossage v. Gossage’s Adm’r, 281 Ky. 575, 136 S.W.2d 775; Ecton v. Flynn, 229 Ky. 476, 17 S.W.2d 407; Thompson v. Latimer, 209 Ky. 491, 273 S.W. 65; McCray v. Corn, 168 Ky. 457, 182 S.W. 640, and Hook v. Hook, 52 Ky. 425, 13 B. Monroe 526. We agree that the authorities cited have determinative significance here.

The opinions just cited make clear certain fundamental rules applicable in the case at bar. It is established that the grantor cannot convert an advancement into something else merely by reciting that the transfer is not an advancement. It is necessary that the transfer be made “in payment of a valid claim for services” to escape treatment as an advancement. It is “not sufficient to show that services had been rendered which might have answered as a consideration for the conveyance, but it must be shown that it was the intention of the parties, at the time of the execution of the conveyance, that the services should be thus satisfied”.

In light of these principles, we take note of the evidence as presented by Rena and Elizabeth Thomas as it relates to the conveyance. After enumerating various services she had rendered to her mother, Rena Thomas testified, in part:

“Q. 110: Then, are you saying then that the property was conveyed by your mother to you in appreciation for the past services that you had—
“A. For my lifetime, for my life’s work, yes sir.
“Q. Ill: During this period of time that—
“A. She insisted, I will tell you this, Reggie, right now. She insisted that she do something, and her idea was for the homeplace to be ours because she felt that we would need a home, well, we told her that that was just too much, more than we would want, and then she said, one day she said I am going to do something for you, I might not live long so then is when she came in and did this.
“Q. 112: Well, then—
“A. She said I know you have earned more than this, but I will remember you with that much. * * *
That was only to pay me for my services of all my life’s work, was all that was for. She said that was what that was for, now.”

Elizabeth Thomas testified that she had not known that her mother planned to execute the deed. When asked when she had learned of the deed, she responded:

“A: The afternoon after the deed had been made, I believe it was April 19 * * * when Rena came for me at the Electric Plant Board she informed me that mamma had deeded us this property for our services rendered for our lifetime.”

Later Elizabeth Thomas deposed:

“Q. 96: Is it your contention, Miss Thomas, that the conveyance by your mother to you of this property was done in appreciation for the services that you have rendered to her prior to the date of this deed?
“A. It was done in appreciation for the services that we offered her during our lifetime. * * * She made that deed to us for our services, in payment of our services, was what she conveyed that deed to us for.”

It does not appear that either of the daughters had ever presented any claim against their mother. The record fails to disclose that either of them made any reckoning of the total “bill” for their services— nor did either of them profess to know the value of the property conveyed to them. The conclusion is inescapable that the mother made the conveyance “in appreciation” for the services — but not “in consideration” of them. In Gossage v. Gossage’s Adm’r, 281 Ky. 575, 136 S.W.2d 775, it was written:

“In determining whether the 1926 conveyances were advancements, the intention of the intestate is not to be considered. The inquiry is limited to the nature of the consideration for the transfer. If not sufficient to indicate that a sale was actually contemplated, the transaction will be adjudged an advancement. True, it is not necessary that the consideration be equivalent to the price which would have been charged a stranger, since allowance may be made for the natural affection between parent and child. Wakefield et al. v. Gilleland’s Administrator, 18 S.W. 768, 13 Ky.Law Rep. 845.
“On the other hand, a transfer is not a sale merely because it is denominated such, and a recited consideration may be shown to be fictitious without an allegation of fraud or mistake. It is true that the Chancellor may take into consideration the character and value of the ancestor’s estate, the amount given the children, and the purposes for which they are to be applied, but the object of Section 1407, Kentucky Statutes, is to procure equality in the distribution of undevised estates, and the essential question in cases of this kind is always whether the transaction was in fact a gift or a sale to be determined by the character of the consideration.”

Thus, it is made clear that the transaction must be a “sale” as distinguished from a “gift”, if it is to avoid the “advancement” statute. The transaction at hand lacked many elements of a true sale. There was no meeting of the minds as to the price being paid; there was no intimation whether the “consideration” included the obligation of the two daughters to continue to furnish services to the mother; there was no release to the mother against the unpresented “claim” for services. In short, the record makes it clear that the mother executed the deed of her own volition, not in response to any press for “payment” from the daughters. The absence of U. S. documentary stamps lends support to the “gift” theory and is in derogation of the “sale” theory. It is our view, therefore, that the questioned conveyance was an advancement within the purview of KRS 391.140.

The trial court did not reach the question of fixing an evaluation upon the advancement. Conflicting evidence was presented touching the matter. Since the issue has never been resolved by the trial court we will not pass upon it in this state of the record. That factual determination is to be made by the trial court.

The judgment is reversed for further proceedings consistent with the opinion.


source: Caselaw Access Project

author: CHESLEY A. LYCAN, Special Commissioner.

license: Public Domain

text:
    HORN TRANSFER LINES, INC., Appellant, v. Buford MORGAN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.

      Adrian F. O’Bryan, Jerry A. Lloyd, Louisville, for appellant.
    Ralph H. Logan, Hardy, Logan & Tross, Louisville, for appellee.
   CHESLEY A. LYCAN, Special Commissioner.

On or about October 1, 1959, James G. Pressel and others formed a trucking company in Louisville known as the Merchants Truck Leasing Corporation. Rudy W. Schauberger was then the owner of an unincorporated trucking business known as the Horn Transfer Lines. Schauberger died in 1959 and his executrix, that year or in 1960, sold the Horn Transfer Lines to the Merchants Truck Leasing Corporation. This sale apparently included all assets and good will of the Horn Transfer Lines except the cash and accounts receivable. The name of the corporation organized by Pressel and others was later changed to the Horn Transfer Lines, Inc., and the latter is the appellant herein.

The Merchants Truck Leasing Corporation was not operating under a labor union contract, although the record indicates some of its drivers were union members. The Horn Transfer Lines, the proprietorship owned by Schauberger, was operating under a labor contract with General Drivers, Warehousemen and Helpers Local Union No. 89, known as the Central States Area Local Cartage Agreement. We shall hereinafter refer to the former as “the union” and to the latter as “the contract.”

Appellee, Buford Morgan, began working for the Merchants Truck Leasing Corporation in 1959, and continued his employment with it up to September 1, 1960, and after its name was changed to the Horn Transfer Lines, Inc. Morgan was a union member but there was no checkoff for dues, as he paid his dues direct to the union. He was on the latter date discharged on the ground that he had failed to spread a tarpaulin over a loaded truck, thus permitting the cargo to get wet and causing his employer to pay $350 in damages. The damage to the cargo and the fact that Horn Transfer Lines, Inc., paid the damage is established, but the jury found in favor of Morgan on appellant’s counterclaim against him for this and a few other items.

After the purchase of the Horn Transfer Lines by the Merchants Truck Leasing Corporation and its reinstitution as the Horn Transfer Lines, Inc., the latter was approached by agents of the union, and an agreement was signed wherein the Horn Transfer Lines, Inc., agreed to contribute to the health, welfare and pension fund of the union. This fund was set up in and was included as a part of the contract.

Upon appellee’s discharge on September 1, I960, he immediately filed a grievance that he had been unfairly discharged, which was heard pursuant to the contract by a committee composed of three representatives from local cartage companies and three representatives of the union, as provided by Article VII of the contract. The committee made an award dated September 22, 1960, which reads:

“The decision of the committee is that Buford Morgan be put back to work and is to be paid for all time lost since September 2, 1960, and that all pay now due or being withheld from Mr. Morgan by Horn Transfer Company be paid to him on or before the next regular pay day.”

After appellant’s refusal to comply with the ruling of the committee, this action to enforce its award was begun in the circuit court. The trial court, under the facts outlined, allowed the jury to find whether or not appellant had accepted the provisions of the union contract and, if they so determined, to award appellee $2.65 per hour for a 40-hour week from September 2, 1960, until March 2, 1962. The jury made a finding that a contract was brought into existence by appellant with the union and returned a verdict that appellee should receive total wages for the time he was out of work, namely, for a period of 78 weeks.

On this appeal it is first asserted there was no evidence of material substance introduced which in any wise established a contract between the Horn Transfer Lines, Inc., and the union.

Section 3 of the contract entered into between the Horn Transfer Lines, the company owned by Schauberger, and the union provides in part:

“This Agreement shall be binding upon the parties hereto, their successors, administrators, executors and assigns. In the event an entire operation or any part thereof is sold, leased, transferred or taken over by sale, transfer, lease, assignment, receivership or bankruptcy proceedings, such operation shall continue to be subject to the terms and conditions of this Agreement for the life thereof. On the sale, transfer or lease of any individual run or runs, only the specific provisions of this contract, excluding supplements or other conditions shall prevail. It is understood by this section that the parties hereto shall not use any leasing device to a third party to evade this contract. The Employer shall give notice of the existence of this Agreement to any purchaser, transferee, lessee, assignee, etc., of the operation covered by the Agreement or any part thereof. Such notice shall be in writing with a copy to the Union not later than the effective day of sale.”

It was revealed that appellant was fully aware of the contract and its contents. Furthermore, it affirmatively signified its acceptance of it when it executed the health, welfare and pension fund agreement. It is not in dispute that appellant made payments under this agreement which inured to the benefit of appellee. It also recognized the grievance procedure provided in the contract, because it helped set up the committee that passed on appellee’s grievance and its president participated in the hearing before the committee.

A case such as this is subject to the federal law and a state court is required to apply federal principles in such a case. The jury determined under the evidence that the contract in question did in truth exist between appellant and the union. We cannot say the jury finding in this respect is not supported by the facts.

The Supreme Court of the United States has held that an employee may bring a suit for the enforcement of his rights under a contract consummated for his benefit, and that the right of the labor organization to do so does not preclude the right of an employee to seek on his own behalf a recovery to which he is entitled. In addition, that Court held that the federal law is applicable to suits for violations of collective bargaining contracts while it, at the same time, ruled the state courts had jurisdiction of such an action by an employee against an employer. See Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246.

In this case, the appellee, an individual employee, brought his own suit. The right to present such an action was vested in him by Section 301(a) of the Labor Management Relations Act of 1947. See 29 U.S.C.A. § 185(a).

It is next asserted the evidence introduced did not warrant a jury determination that, if they found a contract was in being between appellant and the union, they should allow a recovery by appellee of total wages for a period of 78 weeks. It is claimed the proof is to the effect that, during this time, appellee worked intermittently and irregularly with other truck lines and in other employments.

Appellant, as regards the point raised, relies upon Abrams v. Jackson County Board of Education, 230 Ky. 151, 18 S.W.2d 1000, and Stewart Dry Goods Co. v. Hutchison, 177 Ky. 757, 198 S.W. 17, L.R.A. 1918C, 704. The Abrams case stands for the proposition that when a contract for personal services is wrongfully terminated or suspended by an employer, the employee must minimize his damages by seeking to find similar employment in the locality, and he may not recover more than the difference between the contract price and the amount he had earned or could have earned by reasonable diligence.

It was not shown during the trial what amount, if any, appellee had earned within the 78-week period. After the entry of judgment on the verdict, and in connection with a timely motion for a new trial, appellant filed affidavits which tended to show appellee had taken in over $3000 in the operation of a truck and had been sick and hospitalized at least a portion of the time. The trial court overruled the motion.

The contention that appellant is entitled to a new trial is based upon so-called newly discovered evidence. To entitle a party to a new trial for such a reason, the party must have been vigilant in preparing his case. See Brady v. B. & B. Ice Co., 239 Ky. 170, 39 S.W.2d 252. See also Petrie v. Petrie, Ky., 262 S.W.2d 182; Stockdale v. Eads, Ky., 263 S.W.2d 133.

It is our opinion, from reading the affidavits, that appellant failed to use that diligence which would entitle it to a new trial. No good and sufficient reason is advanced why the information contained in the affidavits could not have been secured before and presented at the trial.

More than that, the grievance procedure prescribed in the contract, and pursued by the parties to this appeal, has the same weight as an arbitration decision. See General Drivers, Warehousemen and Helpers Local Union No. 89 v. Riss and Company, 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918; General Drivers, Warehousemen and Helpers Local Union No. 89 v. Moore, 373 U.S. 335, 84 S.Ct. 363, 11 L.Ed. 2d 370 (reversing the Kentucky Court of Appeals, 356 S.W.2d 241).

Wherefore, it is recommended that the judgment of the trial court be affirmed.

The opinion is approved by this Court and the judgment is affirmed.


author: PER CURIAM.

text:
    Robert Stuart BERRYMAN et al., Petitioners, v. Honorable William B. ARDERY, Judge, Woodford Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Jan. 21, 1966.

      Nathan Elliott, Jr., Sidney C. Kinkead, Jr., Lexington, for petitioners.
   PER CURIAM.

Petitioners seek to prohibit the respondent as Judge of the Woodford Circuit Court from enforcing an order requiring them to file a supersedeas bond.

Petitioners were defendants in an action tried before respondent in the Woodford Circuit Court. After judgment was entered against them they filed a notice of appeal. Subsequently the other parties to the appeal filed a motion asking respondent to require petitioners to file a supersedeas bond to indemnify them “for costs, interest and any damages resulting from delay” in the event the appeal should be dismissed or the judgment affirmed. Following a hearing the requested order was entered by respondent.

CR 73.04, provides in pertinent part:

“Whenever an appellant entitled thereto desires to stay on appeal, as provided in Rule 62.03, he may present to the circuit clerk or the court for approval an executed supersedeas bond with good and sufficient surety. * * ”

Since petitioners have not sought to stay the execution of the judgment entered against them, they may not be required to post a supersedeas bond.

Inasmuch as petitioners’ refusal to post the supersedeas bond may place them in contempt of court we deem it proper to grant prohibition.

It is therefore ordered that the respondent is prohibited from enforcing his order of November 22, 1965, requiring petitioners to execute a supersedeas bond.


author: PALMORE, Judge.

text:
    W. E. TUCKER, Appellant, v. Opal TUCKER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Feb. 11, 1966.

      E. H. Walton, Covington, for appellant.
    Richard Nelson, Covington, for appellee.
   PALMORE, Judge.

W. E. Tucker appeals from a judgment of the Kenton Circuit Court awarding his former wife, Opal Tucker, the sum of $3436 representing arrearages in weekly child support payments directed in the divorce decree.

The divorce judgment was entered in 1959. It gave Opal the custody of three children and directed appellant to pay $15 per week through the Domestic Relations Court at the Court House in Covington, Kentucky, for their maintenance.

In January of 1964 Opal filed a motion for a money judgment, supported by an affidavit claiming total arrearages of $3616. Appellant countered with an affidavit stating that he had given Opal an average of $40 per month in cash, that he had paid $1378 to a building and loan association against a mortgage on Opal’s home, that one of the three children had been living with appellant for some time and that he had expended $60 per month for the support of that child.

The trial court conducted a hearing at which the parties and other witnesses testified, following which findings of fact, conclusions of law and ultimately a judgment were entered. The hearing was not reported or transcribed, and no record of it has been made otherwise. Therefore, in view of the familiar rule that unless the testimony is reduced to writing and properly certified as a part of the record it cannot be considered on appeal, it must be presumed that the evidence sustains the findings of fact. Silliman v. Falls City Stone Company, Ky., 305 S.W.2d 322, 324 (1957).

Since appellant had not complied with the judgment directing him to make the payments through the domestic relations court or department and had not obtained receipts for the payments he claimed to have made in cash, the court resolved the conflicting evidence on this point against him and found that of $3720 due he had paid but $284, leaving a deficiency of $3436.

It was further set out in the findings of fact and conclusions of law that the parties jointly owned the house on which the mortgage payments were made and were jointly obligated on the indebtedness, and the court declined to credit appellant with the amounts so paid or with any part of the expense he said he had incurred in supporting the child whose custody had been transferred without approval of the court.

Appellant’s brief quibbles with the judgment up and down the line. No legal question is or can be involved except whether in view of the facts as disclosed in the findings the chancellor abused his discretion. We are of the opinion that he did not. The purpose of directing appellant to make weekly payments through the domestic relations court or department was to obviate the very type of controversy that resulted in this litigation. If a party wishes to contribute to the support of his children in some manner other than that in which a court has directed, the court is always open to a timely application for modification. If he does it without such permission it is not incumbent on the court to give him any credit for it.

The judgment is affirmed.


author: NORVELL, Justice.

text:
    The SUPERIOR OIL COMPANY, Petitioner, v. Newman ROBERTS et al., Respondents.
    No. A-10878.
    Supreme Court of Texas.
    Jan. 6, 1966.
    Murray Christian, Thomas H. Lee, Williams, Lee & Lee, Houston, for petitioner.
    M. W. Plummer, Sr., Houston, for respondents.
   NORVELL, Justice.

This cause presents a question that has not been squarely passed upon by this Court. We find, however, that the Supreme Court of West Virginia has decided the controlling issue in the case contrary to the contentions which respondents here urge. See, Boggess v. Milam, 127 W.Va. 654, 34 S.E.2d 267 (1945). Being of the opinion that Boggess was correctly decided, we reverse the judgments of the courts below and render judgment that respondents (plaintiffs in the trial court) take nothing against the petitioner, The Superior Oil Company.

In stating the case, we will use the trial court designation of the parties. Plaintiffs are Newman Roberts, Rosa Lee Hartman and Olen Stafford, the only heirs of Bob Roberts, deceased. In 1947 plaintiffs owned an undivided one-half interest in a tract of one and a half acres of land being Lots 1, 2, 3, 4, 6 and 12 in Block W of the Hawley Addition to the town of Altair, Colorado County, Texas. The other one-half interest in said town lots was owned by James Craven and the defendant, Estella Todd, the only heirs of Matilda Joshua, deceased.

On September 29, 1947, James Craven (and his wife, Lovie Craven) executed an oil, gas and mineral lease to The Superior Oil Company purporting to cover all of the six town lots above described.

On October 6, 1947, Estella Todd executed a similar lease to Superior describing the same town lots as the Craven lease.

Both leases contained the following provision :

“Lessor does hereby pool and unitize the lands herein leased and all rights of the lessor therein under the terms of that certain ‘Unitization and Unit Operating Agreement in the Altair Field, Colorado County, Texas’ made and entered into as of the 10th day of April, 1947. Lessor ratifies, confirms and adopts said agreement and by this reference said lease and all rights of Lessor thereunder are made subject to said agreement. The terms and provisions of said agreement shall supersede the terms and provisions of this lease.”

The “Unitization and Unit Operating Agreement” for the Altair Field is a detailed contract of some 37 pages. The area unitized thereby consisted of several hundred acres. Production was obtained from the unit but no wells were drilled on the six Altair town lots in which the plaintiffs own an interest, nor within a distance of 1200 feet therefrom.

It appears that although Superior offered to lease their interest in the six town lots, the plaintiffs refused such offer and never executed a lease agreement and have received no payments from the minerals produced from the Altair Field unitized area. It appears that in accounting for royalty payments. Superior considered the Craven and Todd leases as representing one and a half acres, instead of one-half of one and a half acres, — the actual undivided interest owned by James Craven and Estella Todd at the time of the execution of the leases. It appears that the royalty payment allocated to a one and a half acre interest in the unit was paid to Estella Todd and James Craven (or his heirs) up to the time this suit was filed. Superior retained the working interest share.

The two controlling factors in the litigation are (1) that no wells were drilled upon the lands in which plaintiffs hold an undivided interest and (2) that there existed no contractual relationship whatsoever between plaintiffs and Superior, the operator of the unit.

Plaintiffs do not seek to ratify or adopt the leases executed by Estella Todd and James Craven. They do not claim to be tenants in common with the royalty owners who as lessors executed leases covering lands within the unitized area. There is nothing to show that Superior has prevented plaintiffs from developing the mineral resources of the town lots in any way.

It is plaintiffs’ theory that by accepting leases from Estella Todd and James Craven, Superior became a tenant in common with them in the mineral estate underlying the town lots. Plaintiffs equate the pooling of the lots and obtaining production from the unitized area with actual production from such town lots. Of course, had Superior produced from the town lots in which plaintiffs have an undivided one-half interest, it would have to account to plaintiffs for their share of the minerals produced less the necessary and reasonable cost of producing and marketing the same. Cox v. Davison, 397 S.W.2d 200, (Tex.Sup.1965); White v. Smyth, 147 Tex. 272, 214 S.W.2d 967, 5 A.L.R.2d 1348.

It is argued that as the Todd and Craven leases purported to cover the entire one and a half acres embraced in the six town lots and Superior used the one and a half acre factor in accounting to its royalty owners, allocating to itself ⅞ of a one and a half acre interest in and to the minerals produced from the unitized area, Superior should pay over to plaintiffs !½ of this % (working interest) represented by a one and a half acre share in the minerals produced from the unit, less reasonable expenses. We cannot agree with this argument. Obviously any move taken by Superior acting in connection with Estella Todd and James Craven, could not operate to place plaintiffs’ property under lease or make it a part of a unitized area without plaintiffs’ consent or acquiescence. No minerals were produced from their property. They had no contractual relationship with Superior or the owners of interests in the unitized lands which would give them rights in and to minerals produced from the unit but not produced from their lands. The method employed by Superior in accounting for the minerals produced from the unitized area cannot affect the situation. If, in fact, Superior has retained more than its proper share in the division of mineral proceeds between itself and the royalty owners holding lands within the unitized area, this is a matter between Superior and such royalty owners and does not affect plaintiffs in any way.

In Boggess v. Milam, 127 W.Va. 654, 34 S.E.2d 267 (1945), mentioned above, it appears that W. W. Boggess owned an undivided one-tenth interest in the minerals underlying a tract of 116 acres which had been unitized with a tract of 53 acres for mineral production purposes. The lease on the 116 acre tract and the unitization agreement were drawn so as to include W. W. Boggess but he refused to execute the instruments. A well drilled upon the 53 acre tract was a producer and Boggess contended that the unitization of the 116 acre tract in which he had an interest and the 53 acre tract which had produced effected a merger of title in and to such tracts and that he was entitled to his proportionate part of the production obtained from the unit. (11.-6/169). The West Virginia Court held:

“In our opinion, the so-called unitization agreement does not effect a merger of title. Under its express terms the leases of the fifty-three acres and of the one hundred and sixteen acres not in conflict with its terms remained in effect. It consolidates only the contractual interests under the leases to the United Fuel Gas Company. Boggess having refused to become a party to the lease of the one hundred sixteen acre tract, acquired no contractual right subject to merger, and by remaining aloof, both from the lease and the unitization agreement, neither instrument affected his interest, either favorably or unfavorably.”

The Supreme Court of Mississippi followed the doctrine of the Boggess case in California Company v. Britt, 247 Miss. 718, 154 So.2d 144 (1963).

In 3 Summers Oil and Gas 492, § 612, it is stated on authority of Boggess v. Milam that:

“A unitization agreement does not effect a merger of title of the tracts involved so as to give a cotenant of a separate tract, who refuses to sign the lease of his tract or the agreement, an interest as a cotenant in the other tracts of land.”

Similarly, in Myers, The Law of Pooling and Unitization, Voluntary — Compulsory, § 14.04, it is said:

“If there is no production from the tract in question the unsigned royalty interest in the absence of equitable considerations receives nothing though there is production elsewhere in the unit.”

For a discussion of Boggess v. Milam, California Company v. Britt and Whelan v. Placid Oil Co., 274 S.W.2d 125 (Tex. Civ.App., 1954, ref. n. r. e.), see, 6 Williams and Myers, Oil and Gas Law, § 925.2.

Plaintiffs have made no attempt to ratify the Todd and Craven leases or the Altair Field Unitization Agreement. It is these instruments which give rise to a claim to the mineral production from tracts not owned by plaintiffs and their cotenants, Estella Todd and the heirs of James Craven. In claiming an interest in such mineral production, plaintiffs in effect seek to claim the beneficial provisions of such contracts and repudiate the unfavorable portions thereof which would limit their claim to the same rights as those held by their cotenants who joined in the Superior lease, namely, royalty rights only. In our opinion, this position is untenable.

For the reasons stated, the judgments of the courts below are reversed and judgment here rendered that respondents (plaintiffs in the trial court) take nothing.

      . The opinion of the Court of Civil Appeals is reported in 390 S.W.2d 550.

      . James Craven was dead at the time of the filing of the suit. His heirs, C. L. Craven, E. J. Craven and Bernice Jackson were named as parties defendant.


author: BELCHER, Commissioner.

text:
    Paul BOWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 38872.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1966.
    Rehearing Denied Feb. 9, 1966.

      Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and R. W. Hope, Asst. Dist. Attys., Houston, and Leo-n B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for the unlawful possession of paregoric, a narcotic drug; and his punishment was assessed at two years.

Officers Geffert and Hightower testified that about 3 P. M., October IS, they saw the appellant enter the lobby of an apartment house carrying a brown paper sack which he placed under a couch in the lobby and then run upstairs. Officer Gef-fert pursued and apprehended the appellant in the bathroom upstairs. Officer High-tower immediately investigated the brown paper sack that the appellant placed under the couch, and found four pint bottles in the sack which contained a brown liquid.

Chemist Crawford testified that he made an analysis of the liquid content of the four pint bottles, and that such analysis showed that said bottles contained 800 milliliters of. paregoric, and that paregoric contains from 35 to 40 milligrams of morphine per 100 milliliters of liquid, and that '- paregoric is a narcotic drug. ⅝

The appellant did not testify or offer any evidence before the jury.

The appellant’s sole contention relied on for reversal is that the trial court allowed the state to abandon the search warrant which authorized the search and his subsequent arrest, on the ground^ that both were illegal because the search' warrant was void.

In support of his contention, the appellant relied upon the return of a search warrant issued October 15, on an affidavit signed by Officers Chavez and Farrar describing and directed to apartment No. 7 in a two-story frame building. The officers’ return thereon shows that it came to hand at 2:20 P. M., October 15, and was executed at 2:30 P. M., October 15. The return made by Officers Chavez and Far-rar shows that they found four pints of paregoric and a quantity of narcotic paraphernalia. Therefore the appellant insists that the state is bound by the return on the warrant showing its execution.

The state announced during the trial that it did not rely on the results of the execution of the search warrant to support the admission of the evidence showing appellant’s possession of the paregoric as alleged. It was not introduced in evidence by the state, but brought forward in the record by the appellant to support his contention that it could not be abandoned by the state.

The testimony of Officers Geffert and Hightower was sufficient to show the possession by the appellant of the four pint bottles in the brown paper sack he placed under the couch in the lobby, and which contained, according to the testimony of the chemist, 800 milliliters of paregoric. Under their testimony the four pint bottles were not obtained as a result of the search ^of the upstairs apartment No. 7 in the kmlti-apartment complex.

The paregoric was not obtained in a search of the premises described in the search warrant but was lawfully recovered in the place where appellant was seen to place it.

The evidence having been lawful ly obtained, evidence offered by the defense consisting of a search warrant and return thereon did not render such evidence inadmissible.

The state cannot be forced to introduce any particular evidence in making the proof of its case. 56 Tex.Jur. (2) 477, Sec. 129.

The evidence is sufficient to sustain the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Daniel A. RIOS, Appellant, v. The STATE of Texas, Appellee.
    No. 39117.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    George T. Thomas, Big Springs, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice under Article 802c, Vernon’s Ann.P.C.; the punishment, five years.

The witness Holley testified that as he proceeded into an intersection on a green light his companion Grantham exclaimed, “Look out, we are going to get hit”, that he' looked to his right and saw an automobile so close upon him that he was unable to do anything to prevent it from crashing' into his right front door. After the collision, Holley, Grantham, appellant and another Latin American were carried to the hospital. During the journey both Holley and appellant charged each other with having run a red light. Soon after arrival at the hospital, Grantham died. While the parties were at the hospital, Officer Hiltbruner asked appellant if he was the driver of the Buick which collided with Holley’s Lincoln, and he said that he was. Some three hours after the collision appellant gave his written consent to take a blood test, and some time thereafter the doctor in charge told the police that appellant was in no need of hospitalization, and he wás released to them. Upon his arrival at the police headquarters, appellant was interrogated by Officer Scott and executed a written confession after being given a full warning. The following morning appellant was carried back to the hospital for a check up, and when he was returned, Scott again went over the matter with appellant and a second written confession was executed. The results of the blood test showed appellant to have had .13 percent of alcohol at the time the test was taken, which in the opinion of the expert was indicative of intoxication. Officer Hiltbruner expressed the opinion from his observation of appellant at the hospital that he was under the influence of intoxicants. The doctor who treated appellant expressed the opinion that appellant was under the influence of alcohol, but stated that in his opinion appellant had not consumed enough alcohol to affect his reflexes or his speech, but stated that the jovial manner of appellant and his companion manifested a general unconcern of the seriousness of what had happened. The witness Bell testified that she sold appellant three quarts of beer and a pint of wine some three hours prior to the collision.

Numerous pictures were ' introduced which demonstrated that the Buick had rammed the Lincoln in the right front door. A number of witnesses observed the Buick run numerous red lights before it ran through the one at the intersection where the collision occurred.

The above is a brief summary of this 500 page record. The facts will be discussed more fully in passing upon appellant’s contentions raised by brief and in argument. His first contention is that the evidence is insufficient to corroborate his confessions that he was the driver of the Buick. He points to the testimony of the State’s witnesses who witnessed the speeding and the collision and stresses that appellant was in the back seat of the Buick, that another young man was in the front seat when they first approached it after the accident, and that his other companion was nowhere in sight. Much of the weight of his argument is destroyed when we look to appellant’s confession and there find the recitation “When I hit the car, I was thrown into the back seat and knocked out.” We find the facts sufficient to corroborate appellant’s confession that he was the driver at the time of the collision and to take this case out of the rule announced in Threet v. State, 157 Tex.Cr.R. 497, 250 S.W.2d 200, Spinks v. State, 156 Tex.Cr.R. 418, 243 S.W.2d 173, and the other cases upon which he relies. Bosquez v. State, 166 Tex.Cr.R. 147, 311 S.W.2d 855, supports the conclusion that the circumstantial evidence was sufficient to corroborate the confession.

He next contends that the Court erred in failing to instruct the jury of the necessity of the State’s corroborating the confessions. In Hernandez v. State, 165 Tex.Cr.R. 329, 307. S.W.2d 88, we quoted from Johnson v. State, 117 Tex.Cr.R. 103, 36 S.W.2d 748, as follows:

“ * * * It is the general rule that, ‘where there is no doubt that the crime has been committed by somebody, and defendant’s agency with it is shown alone by his confession, it is not reversible error to fail to charge that a conviction could not be had upon a confession alone.’ ”

Appellant’s next contention is that the court commented on the weight of the evidence when he used the expression “his automobile” throughout the charge. This complaint is predicated on the assumption stated above that there was no proof to corroborate the confession. While no proof was introduced that appellant owned the Buick, we have concluded as shown above, that his confession that he was driving has been sufficiently corroborated and that the court in his charge by the use of the possessive pronoun was merely directing the jury’s attention to the automobile he was alleged to have driven. Since no question of ownership was in the case, we cannot bring ourselves to conclude that reversible error is shown.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


text:
    Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee.
    No. 39210.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The information attempts to charge a violation of Article 567b, Vernon’s Ann. P.C., for delivering a worthless check in the sum of $10.00; the punishment assessed was 30 days in jail and a fine of $150.00.

Neither the complaint nor the information charges that the check was given with intent to defraud. The intent to defraud is an essential element of the offense. Art. 567b, Sec. 1, supra, Wright v. State, 168 Tex.Cr.R. 214, 324 S.W.2d 883, Martinez v. State, Tex.Cr.App., 325 S.W.2d 145, and the cases there cited.

The judgment is reversed and the prosecution is ordered dismissed.


text:
    Ex parte George Washington HAMMONDS.
    No. 39321.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.

      Toby Goldsmith, Fort Worth, represented relator on the hearing in District Court.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, an inmate of the Texas Department of Corrections, seeks his release by writ of habeas corpus alleging that he was not represented by counsel when he plead guilty to an indictment charging him with the commission of the offense of burglary in the District Court of Midland County on July 3, 1945, and that such conviction was improperly utilized for the purpose of enhancement under Art. 63, Vernon’s Ann.P.C., in the present case by virtue of which he is now being confined.

The writ was granted by the Honorable J. E. Winters, Judge of the Criminal District Court of Tarrant County, and made returnable to this Court in accordance with Art. 119, Vernon’s Ann.C.C.P.

Relator does not otherwise question the validity of his present conviction on February 8, 1958, in the District Court of Tar-rant County, which was appealed to this Court and which is reported at 167 Tex.Cr. R. 228, 320 S.W.2d 7, or the other prior burglary conviction used for enhancement. Assuming that the 1945 conviction was not available to enhance the punishment in his conviction in 1958, there is no showing that relator has served the maximum term for the subsequent conviction of burglary on February 8, 1958, and, therefore, relator does not bring himself within the rule announced in Ex parte Puckett, 165 Tex.Cr. R. 605, 310 S.W.2d 117.

The writ of habeas corpus is denied.


author: McDONALD, Presiding Judge.

text:
    Oscar F. COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 37238.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Jan. 5, 1966.

      William T. Moore, Bryan, Robert D. Peterson, (Court-appointed counsel), Reagan & Welch, Marlin, (Court-appointed counsel), for appellant.
    Thomas B. Bartlett, Jr., Marlin, John B. Henderson, Jr., Cameron, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder with malice aforethought; the punishment, death.

Trial was held in Falls County on a change of venue from Milam County. The indictment alleged that appellant unlawfully and voluntarily and with malice aforethought killed Mrs. Dan Crow on or about the 14th day of May, 1963.

The evidence reveals that appellant and Velma Cook, daughter of the deceased, had been married in 1959, that their marriage was marred by two separations, and that they were finally divorced on April 30, 1963, with Mrs. Cook being awarded custody of their two small girls. During their marriage the couple lived in several Texas communities, moving from place to place frequently, staying occasionally with his relatives and at other times with hers. Appellant was not always gainfully employed.

About two weeks after the divorce, on the afternoon of May 14, 1963, appellant borrowed a car from a friend in Temple and drove over to the town of Davilla in Milam County where his ex-wife was living with her parents, Mr. and Mrs. Dan Crow. Velma Cook was employed at a beauty shop in Rogers, about eleven miles from Davilla, and when appellant found no one at their home, he called her at work, saying that he “had gotten out of jail”, and asked her where his military service discharge papers were located. During the conversation he said he planned to go to Austin to the State Hospital, and that so long as he was at this mental institution, she could' not obtain a divorce. It was then that she told him that their divorce had already become final.

Appellant returned to Temple, where he once again telephoned Mrs. Cook, stating that he wanted to come to Davilla and “talk to the family,” to which his ex-wife objected. An argument ensued, which was terminated when she “hung up on him.”

Appellant packed a small bag and borrowed a .22 caliber pistol from his cousin, saying he was going coon hunting; his cousin also gave him a dollar with which to buy a box of shells for the weapon. Appellant hitched a ride from Temple to Rogers and another from Rogers to Da-villa, arriving there at about 8:30 p. m. He walked into the house and greeted everyone, asking Mrs. Cook to find his discharge papers for him. While she was in a back room doing this, appellant talked with their older daughter. Danny Crow, Mrs. Cook’s brother, was in the living room watching television. Mary Lou Crow, a sister of Mrs. Cook, was studying on a bed in one of the bedrooms; the deceased, appellant’s ex-mother-in-law, was in the kitchen visiting with a friend. Appellant’s other child, a baby, was asleep.

Mrs. Cook took the papers to the front porch and gave them to appellant. While they were standing on the porch, in the words of Mrs. Cook, “We had a talk a while out there. He asked me to go to Texas City with him. I asked him how. The same questions I have asked a thousand times. Did he have a job? He said no, but he would get the money that night. I asked him how. He said he didn’t know. I said I wouldn’t go. He said, ‘If it is all over between us, I want to give you this.’ ” Appellant then reached into his bag, took out the pistol saying, “I’m going to kill every one of you,” and shot his ex-wife, the bullet going through her arm and into her body, and causing her to lose consciousness. He then went into the house and, firing again, wounded the boy, Danny, then shot the deceased in the left breast as she entered the living room. She died almost instantly, as a result of the shot. Danny remembers his mother saying, “My God, he has shot all of us.” From her position in the bedroom, Mary Lou saw her mother as she was shot by appellant, who next turned the pistol on Mary Lou, seriously injuring her with a wound in the chest. The visitor, Mrs. Brisbane, after hearing appellant say that there would be no living witnesses, took the baby and ran out into the back yard. Danny, meanwhile, had taken a shotgun from behind the livingroom door and exchanged further shots with appellant, who finally pointed the pistol at his own chest and shot himself, then left the house.

Dr. Seth Lehmberg testified that appellant came to him in Taylor, Texas, at about 10:00 p. m. that evening and received treatment for the gunshot wound. He was transferred back to Milam County the following morning and placed under the medical-care of Dr. S. H. Richardson at St. Edwards Hospital in Cameron. Neither physician noted anything abnormal about his behavior during the time he was under their care.

The state adduced testimony from two psychiatrists who had examined appellant after the shootings and before his trial, and both stated that in their opinion appellant was of sound mind at the time of the commission of the offense.

The testimony for the defense was related solely to the issue of insanity. Several lay witnesses testified as to abnormal behavior of appellant, saying that at times they did not feel appellant knew right from wrong. Dr. Wylie Jones, a general practitioner, testified that it was possible that appellant might not have known right from wrong at the time of the commission of the offense.

The jury found that appellant was sane both at the time of the commission of the offense and at the time of trial, and found him guilty of the offense as charged. We find the evidence abundantly sufficient to sustain the verdict.

The able battery of attorneys appointed by the Court to represent appellant have by brief and oral argument urged fourteen contentions brought forward by formal bills of exception, along with numerous informal bills. Ten of the formal bills complain of the trial court’s action in restricting the nature and scope of appellant’s voir dire examination of prospective jurors.

Bill of Exception No. 1 reflects that appellant’s counsel attempted to ask a prospective juror this question, “Also, Percy, it would be highly improper, you understand, for someone to inject some fact into the case not brought forth on the witness stand.” Obj ection was taken and sustained. Counsel then completed the question for the purpose of this bill by asking, “You understand, if you were walking in the hall and someone made some statement to you or some other member of the jury as to purported facts in the case, could we count on you then to come back into the courtroom and report it to the Judge ?” The answer was, “I sure would.” The Court stated, “I will sustain the objection to the question. And this ruling may apply to each and every venireman hereafter called, as you have made your bill.” Appellant contends that, because of this ruling, he was forced to accept each juror without knowing the answer to the question set out above, to his prejudice and in violation of his rights under the constitutions and laws of the United States and Texas.

The qualifications to this bill of exception, accepted by appellant, disclose the following: Percy D. Poole, the only talesman who answered the questions propounded, did not serve on the jury; appellant exercised only eleven of his peremptory challenges; all jurors stated that they would follow the Court’s instructions, and they were instructed not to discuss the case with anyone or permit anyone to discuss the case with them.

In a separate bill, appellant contends that, by its ruling on Bill No. 1, the Court gave appellant a “running objection” to all other veniremen, and that this ruling prevented him from asking each prospective juror questions pertaining to whether or not he would only consider testimony brought forth on the witness stand. The Court’s qualification, again accepted by appellant, reveals that appellant’s counsel stated, “Let me ask one more question he objected to prior,” to which the Court replied, “no other objection can run that way. It has been ruled on this witness, and you may ask it as to the next juror.” There is no showing in the record that appellant questioned any other venireman on this subject. When appellant accepted the qualifications of the trial court, he was bound by them. 5 Tex.Jur.2d 305, Sec. 185; also see Lacy v. State, Tex.Cr.App., 374 S.W.2d 244. These bills, for reasons to be discussed more fully below, reflect no error.

Other formal bills show that appellant was prevented from adducing an answer from individual veniremen to the following questions:

In Bill of Exception No. 2: “Do you know of anything in this case that would prevent you from giving Oscar Cook the same fair, impartial trial that you would want yourself or would want for a member of your family or any friend to have?”

The Court’s qualification reveals that the venireman was asked and answered a question quite similar to the one set out above.

In Bill of Exception No. 3: “Now, Billie, can we depend on you not to arrive at any hasty or compromise verdict ?”

Here, also, the qualifications to the bill of exception disclose that counsel was allowed to ask, and received an answer to, a similar question.

In Bill of Exception No. 4: “Well, you would be reasonable, I am sure. You believe a jury should be reasonable in their punishment, don’t you ?”

The qualifications of the trial court reflect that the juror’s answer to this question gave no indication that the juror would be unreasonable in any manner. No harm is shown to have resulted from the Court’s refusal to allow counsel to ask the three questions set out above.

Other bills concerning voir dire examination are largely duplications of bills previously discussed and will not be considered separately, for to do so would add nothing to the jurisprudence of this state.

All of the bills discussed above are founded on appellant’s theory that by the restriction of his voir dire examination of talesmen, appellant has been denied constitutional rights. We recognize that the guarantee of right to be represented by counsel carries with it the right of counsel to interrogate, within reason, members of the jury panel or special venire, so that counsel may form his own conclusion, after personal contact with the prospective juror, as to whether, in counsel’s judgment, the prospective juror is acceptable to him or whether, on the other hand, counsel should exercise a peremptory challenge to keep the prospective juror from serving on the jury. Vernon’s Ann.St.Const., Art. 1, Sec. 10. We do not think the foregoing bills reflect a transgression of appellant’s constitutional rights for several reasons, however. The action of the trial court in controlling the interrogation of prospective jurors on voir dire is subject to review only to ascertain whether the court abused his discretion. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. It occurs to us that the questions set out in Bill No. 1 were not pertinent to appellant’s defense. We are inclined to the belief that in cases of this kind appellant should make a showing in the record what the answer of any venireman would have been to the question propounded. Additionally, he should show that an objectionable juror served on the jury, or that he exhausted his peremptory challenges. Lehman v. State, 172 Tex.Cr.R. 626, 354 S.W.2d 586. It is undisputed that appellant exercised only 11 of his 15 peremptory challenges. It is for these and other reasons previously stated that we find no error reflected in the bills of exception complaining of restriction of voir dire examination, and each such bill is overruled.

This holding is not in conflict with our opinion in Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629, where appellant was charged with possession of liquor for sale in a dry area. His sole defense was that he possessed the liquor for his own use, which the law authorized him to do. His counsel sought to ask the jury panel whether or not any member thereof felt it morally wrong for a person to have in his possession alcoholic beverage for his own use, and the trial court sustained an objection that the question was improper. We agree with Mathis that in such a case it is not always necessary to show what the answer would be to the question propounded, but we do not have before us a case on a parallel with Mathis. The bill of exception in Mathis was unqualified; in the case at bar, the qualifications of the Court, which were accepted by appellant, lead us to the conclusion that no error was committed.

Bill of Exception No. 5. complains of the action of the trial court in overruling and denying appellant a preliminary sanity hearing upon the issue of his insanity at the time of commission of the alleged offense prior to the trial of his case on the main charge. Art. 932b, Vernon’s Ann. C.C.P. and Art. 34, Vernon’s Ann.P.C. can be invoked to try issues of insanity before trial of the main charge by or on behalf of a defendant only by motion or request for trial on issue of present insanity and not on just the one issue of insanity at time of commission of the crime. State v. Olsen, Tex., 360 S.W.2d 398; Castello v. State, Tex.Cr.App., 373 S.W.2d 754, concurring opinion by Judge Woodley on page 756. This contention advanced by appellant in this bill is without merit and is overruled. The trial court’s qualification to this bill and the record before us reflect that appellant was permitted on the trial of this cause to introduce .evidence as to his sanity and the same was submitted to the jury under proper instructions by the Court. Bill of Exception No. 6 embodies objections and exceptions taken to the court’s charge. We feel that the charge of the court was full and complete and accorded appellant a fair and full submission of every issue raised by the evidence. No error is reflected by this bill.

Bill of Exception No. 13. is levelled at certain remarks made by state’s counsel in his argument to the jury. It is our view that the action of the trial court in sustaining appellant’s objection and instructing the jury to disregard them rendered the remarks harmless. We do not feel that the action of the trial court in refusing to grant a mistrial was error. The remarks were not of such a nature as to be inflammatory and prejudicial. We overrule this contention.

By informal bill of exception appellant complains of the action of the trial court in admitting into evidence the garment or jacket worn by the deceased at the time of the homicide. We find nothing in the record to sustain his contention that drops of blood were on the jacket or that it was inflammatory or prejudicial to his rights. This contention is overruled.

Appellant also urges as error, by informal bills of exception, the admission into evidence of testimony adduced by the two daughters and son of the deceased in which they related that they were also shot by appellant at the time their mother was killed. We think it elemental that this testimony was part of the res gestae, and no error is reflected by the trial court’s action.

Appellant further contends that the trial court erred in admitting the testimony of Velma Cook, shown to be appellant’s former wife. It is his contention that she lacked residential qualifications to secure the divorce from him prior to the homicide and that the divorce is a nullity; thus, she was an incompetent witness to testify against him. We find no merit in this contention. A divorce decree cannot be voided in a collateral attack upon the judgment in a criminal proceeding, only in a direct attack. Tucker v. State, 141 Tex.Cr. R. 428, 148 S.W.2d 1111.

We have carefully considered the remaining informal bills of exception and find no reversible error reflected by any of them.

The judgment is affirmed.


text:
    Louise CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 39122.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Leland D. Sutton, Abilene (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted of the misdemeanor offense of contributing to the delinquency of a minor. Punishment was assessed at a fine of $50.00.

Appellant’s counsel points out that the jurat to the complaint purports that the oath was administered by “County Attorney for Jones County, Texas”, but the jurat is wholly without signature. The record reflects the absence of a signature.

Article 415, Vernon’s Ann.C.C.P., provides that no information shall he presented until affidavit has been made by some credible person charging the defendant with an offense. We had a similar record before us in Ex Parte Bozeman, 166 Tex.Cr.R. 270, 313 S.W.2d 300, where the complaint was signed but was not sworn to. This Court, speaking through Judge Wood-ley held: “An unsworn complaint cannot be the basis of criminal prosecution in the corporation court and the judgment rendered thereon is void.” Also, see Evans v. State, 160 Tex.Cr.R. 353, 271 S.W.2d 429.

The State submits that appellant is correct in her brief.

For the reason stated, the judgment is reversed and the prosecution under this information ordered dismissed.


text:
    Louise CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 39123.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Leland D. Sutton, Abilene (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted of the misdemeanor offense of contributing to the delinquency of a minor. Punishment was assessed at a fine of $50.00.

This is a companion case to Tex.Cr.App., 398 S.W.2d 290, this day decided. The identical question posed in that case is prevalent in this one. We adopt our opinion in that case as the opinion in this one.

For the reason stated, the judgment is reversed and the prosecution under this information is ordered dismissed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Johnny M. WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38523.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 19, 1966.
    Second Motion for Rehearing Denied Feb. 9, 1966.

      O. E. Halsell, Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Mike Berry, Asst. Dist. Atty., Odessa, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The indictment alleged the theft of “ten drill bits” of the value of more than $50 from K. L. Beck on or about November 15, 1964.

A prior conviction for burglary, on October 8, 1959, in the District Court of Crane County, and a conviction for felony theft on September 30, 1950, in the District Court of Stephens County, for an offense committed prior to the commission and conviction for said burglary, were alleged for enhancement of punishment purposes.

The statement of facts reveals that on the date alleged in the indictment Beck was General Superintendent for A. W. Thompson Drilling Contractor and had custody and control of their drill bits, fourteen of which were missing from the company yard in Ector County; that the value of ten of the bits was more than $50, and that he did not give appellant permission to take them from his possession.

Grady Orbison, an accomplice witness, testified that he, Don Nave, Tommy Barney and appellant went to A. W. Thompson’s yard and got about 14 drill bits which they took to Tonkawa, Oklahoma and sold to Bill Strange; that Strange paid for the drill bits with two checks totaling $350 which they cashed and divided the proceeds.

Bill Strange, also an accomplice witness, gave similar testimony and testified that he signed the checks in appellant’s car; that appellant was in the front seat at the time and Orbison was in the back seat; that the checks were cashed and appellant’s name appeared thereon as endorser.

The checks were introduced in evidence and one of the drill bits was introduced,

Howard Autry, Division Manager for Smith Tool Company, testified that the drill bit introduced in evidence was of the value of $200 or $300.

Appellant’s testimony and the testimony of his witness Scott raised issue as to the value of the drill bits being less than $50 and the lack of unlawful intent on his part in taking them to Bill Strange’s yard in Tonkawa. He denied that the checks were given in payment for these drill bits or that he received any money from the sale of such bits, if they were sold to Strange,

The prior convictions were proved and appellant admitted his identity as the defendant so convicted.

Appellant’s able court appointed counsel presents fourteen claims of error.

He complains of the overruling of four motions to quash the indictment. None of these is shown to have been presented to the trial judge for his ruling. In the absence of a bill of exception, formal or informal, appellant’s attack upon the indictment must be considered as though no motion to quash or exception to the indictment was filed. Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Brooks v. State, 170 Tex.Cr.R. 555, 342 S.W.2d 439; Dominguiz v. State, Tex.Cr.App., 373 S.W.2d 241.

We overrule the contention that “ten drill bits” is an inadequate description of the property alleged to have been stolen. (Art. 403, Vernon’s Ann.C.C.P.) Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430, Guidry v. State, 172 Tex.Cr.R. 516, 360 S.W.2d 152. See also Hendley v. State, Tex.Cr.App., 313 S.W.2d 296; Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69; Baldwin v. State, 76 Tex.Cr.R. 499, 175 S.W. 701.

The prior convictions alleged for enhancement were proved by certified copies of the judgments of conviction and were admitted by appellant.

The first conviction in point of time was in Stephens County on September 10, 1950. This conviction was final long before the commission of the offense for which appellant was on trial. The date of the commission of the offense for which appellant was convicted in 1950 is not material.

The conviction in Crane County in 1959 was shown to be for an offense committed after the Stephens County conviction became final. The indictment returned on June 10, 1958, alleging the offense to have been committed on or about the 15th day of May, 1958, was introduced in evidence. An indictment for burglary may be presented within 5 years, and not afterward. Art. 179 C.C.P.

Under the 1958 indictment a conviction could not be had for an offense committed prior to September 10,1950.

It is contended that this conviction cannot stand because the record does not reflect waiver of the 10 days time to prepare for trial allowed by Art. 494, V.A.C. C.P.

The trial judge appointed counsel on January 7, 1965. Under such appointment said counsel represented appellant at his trial on March 25, 1965, upon a re-indictment filed March 17, 1965, for the same offense, and the court allowed his fees under his appointment in January.

We overrule appellant's contention that Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775, and Bennett v. State, Tex.Cr.App., 382 S.W.2d 930, are applicable and require reversal.

The remaining claims of error have been considered and are overruled. The evidence is sufficient to sustain the conviction and no reversible error appears.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant’s diligent counsel has by supplemental transcript made available to this Court the trial court’s ruling on his motion to quash the indictment. We find therefrom that appellant agreed with the trial court when he called counsel’s attention to the fact that he had announced ready prior to the presentation of the motion. It has long been the rule in this Court that motions to quash must be presented prior to announcement of ready. See Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520, and cases there cited.

Appellant again urges that the State failed to prove the date of the commission of the offense which resulted in the 1950 Stephens County conviction alleged for enhancement. Further proof is not required because appellant could not have been convicted in 1950 except for an offense which had been committed prior to the date of conviction.

His last contention related to the court’s charge. We find that the questions propounded to appellant about his prior felony and misdemeanor convictions which involved moral turpitude were proper under Article 732a, V.A.C.C.P. and that the court’s charge thereon, taken from 1 Branch Ann. P.C., Sec. 189.3, p. 209, was not error.

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


author: COLLINGS, Justice.

text:
    BRUNSWICK CORPORATION, Appellant, v. SUBURBAN BOWLING, INC., Appellee.
    No. 4015.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 26, 1965.
    Ross, Banks, May & Cron, John A. Cavin, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Fred M. Lange, Houston, for appellee.
   COLLINGS, Justice.

Brunswick Corporation brought suit against Suburban Bowling, Inc., seeking a deficiency judgment, on two promissory notes secured by chattel mortgages on bowling equipment. The defendant answered by a general denial and, among other defenses, alleged that the bowling equipment covered by such chattel mortgages had been voluntarily surrendered and delivered by defendant to the plaintiff in August 1963, and accepted by plaintiff under an agreement that plaintiff would accept the equipment in full and complete satisfaction, accord and cancellation of the notes sued upon, and that the defendant was thereby released from further obligation in connection therewith. The trial was before the court without a jury and judgment was rendered that the plaintiff take nothing. Brunswick Corporation has appealed.

Appellant urges two points of error contending that the court (1) erred in admitting the testimony of the witness Samuel E. Dale as to out of court statements of alleged agents of appellant, because such testimony was in violation of the hearsay rule, and (2) in holding that appellant agreed to remove the bowling equipment in satisfaction of the balance owed by appellee on the promissory notes, because such holding is contrary to the great weight and preponderance of the evidence.

The principal controverted fact issue was whether there was an agreement that appellant was to remove the bowling equipment in satisfaction and accord of the balance owed by appellee on the promissory notes. No findings of fact and conclusions of law were filed by the court, and in support of the judgment it is presumed that the court found the controverted issue of fact against appellant.

The evidence shows that Mr. Dan M. Moody of Houston, Texas, is a stockholder and the president of appellee Suburban Bowling, Inc., hereafter referred to as Suburban, which has operated several bowling establishments, including the Northshore Bowling Lanes. Mr. Moody testified that he had been connected with the bowling business for about seven or eight years since he met Mr. Roy Moore. He stated that during that time he had become accustomed to dealing with companies which sell bowling equipment, particularly with A M F and Brunswick Corporation, referred to as Brunswick. He testified that he was familiar with the business affairs of Suburban, familiar with the books, records and correspondence of the company, and with the fact that appellee had done business with appellant Brunswick; that appel-lee purchased sixteen bowling lanes and pinsetters from appellant at one time and later bought pool tables and other equipment; that appellee’s business relationship with appellant extended from the time such equipment was purchased in 1959 until the " bowling alley equipment was turned back to appellant in August of 1963; that appellee still owned pool tables purchased from appellant and was paying therefor according to agreement.

Mr. Moody stated that he represented and still represents appellee, Suburban Bowling; that Mr. Roy Moore was the person at Brunswick with whom he dealt; that he dealt with Moore when he purchased the bowling equipment from Brunswick; that Moore always held himself out as representing and speaking for Brunswick and that he always dealt with Moore when he had business with Brunswick; that when he wanted to buy bowling alley equipment from Brunswick Moore set the price for the equipment and determined the method of payment; that if a problem or dispute arose he contacted Mr. Moore in an attempt to settle the matter and if Brunswick contacted him about any problem or dispute that Moore was the person who made the contact ; that at all times during their dealings Moore indicated to him that he had authority to speak for Brunswick. Moody stated that the total amount of money appellee had paid to Brunswick on business done with and through Mr. Moore was about $160,000.00.

Moody stated that he was familiar with the bowling alley equipment in question which had been purchased from Brunswick; that in August of 1963, the equipment was located in Northshore Bowling Lanes, and in excellent condition; that in July of 1963 he contacted Brunswick by oral conversation with Mr. Moore; that he told Moore he would like for them to take such bowling equipment back “and everybody consider that the value of the equipment was worth the remaining debt — and that the debt would be paid in full and everybody happy and released.” Moody testified that at that time Moore said they would be glad to come and get the equipment, but said he couldn’t promise any definite date of removal; that Moore’s only comment was that he couldn’t give a definite date. Moody also stated that thereafter on April 9, 1963, he wrote the following to appellant:

“August 9, 1963
CERTIFIED MAIL NO. 16360 ■
RETURN RECEIPT REQUESTED
Mr. Roy Moore
Brunswick Corporation
1322 North Industrial
Dallas, Tex.
Dear Roy:
Re: Suburban Bowling, Inc.
As you and Mr. Canaby in your home office both know, this company is not able to make the payments on your lanes and pinsetters at the- North-shore Bowling Lanes.
This is a request that your company immediately remove your lanes and pinsetters on a mutual agreement of full release of all parties concerned.
I will appreciate your expediting this request at the earliest possible date.
Yours very truly,
SUBURBAN BOWLING, INC.
BY:
Vice President
DMM :mbs
CC: Mr. Canaby
Brunswick Corporation
623 South Wabash
Chicago, Illinois
(Cert. Mail No. 16361)
CC: Mr. John H. Crooker, Jr.”

Mr. Moody stated that he had received some correspondence from Brunswick signed by Mr. Canaby and that he sent Canaby a copy of the letter as indicated by the notation at the bottom thereof. The evidence shows that the bowling equipment was removed about the 22nd day of August 1963. This suit was brought by appellant on December 29, 1964.

Mr. Moore denied that he ever agreed with Suburban to remove the bowling alley equipment in satisfaction and accord of the balance owing on the promissory notes. Mr. Moody and another witness testified that on March S, 1965, a conference was held at the office of appellant’s attorneys in Houston at which attorneys for both parties, he and Mr. Moore, were present; that at such conference Moore was shown a copy of the above letter dated August 9, 1963, and he admitted that Brunswick took back the equipment pursuant to- such letter. Moore admitted that he received the letter from Mr. Moody dated August 9, 1963, but he denied that he admitted at the conference on March 5, 1965 that he took the bowling alley equipment back pursuant to- such letter. The evidence also shows that appellant, through a Chicago attorney, by a letter dated August 22, 1963, informed Suburban that its indebtedness on the bowling alley equipment was delinquent and demanded payment; that such letter warned appellee that if payment was not received within ten days action would be instituted to repossess such equipment and also to- obtain a deficiency judgment. Mr. Moody testified that he answered this letter immediately. He stated that from that time in August 1963 until suit was brought on December 29, 1964, appellant never made any demand or claim on appellee for any money or deficiency on the notes sued upon.

In our opinion the presumed finding by the court that Brunswick agreed with Suburban to remove the bowling alley equipment in satisfaction and accord of the balance owed thereon is supported by the evidence and is not against the great weight and preponderance of the evidence. The evidence shows that there is and was at the trial a dispute concerning the value of the bowling alley equipment at the time of its removal. Moody in oral conversation with Moore requested the removal of such equipment in accord and satisfaction of Suburban’s debt thereon. Moody by his letter to Moore requested that such equipment be removed by Brunswick “on a mutual agreement of full release of all parties * * *” . It is undisputed that the equipment was removed soon thereafter. Moore does not deny the oral and written requests of Moody for the removal of the equipment in satisfaction of the debt, but does deny any agreement of accord and satisfaction. There is no evidence, however, that Moore informed Moody that the removal was not being made pursuant to and in compliance with the oral and written requests. There is evidence to the effect that Moore later admitted that the removal was made pursuant to Moody’s letter. Based upon a consideration of the record as a whole we are of the opinion that the court’s presumed finding against appellant in this connection is supported by sufficient evidence and that such finding is not against the great weight and preponderance of the evidence. The return of the mortgaged alley equipment was a valid and sufficient consideration for the agreement by Brunswick to cancel Suburban’s debt thereon. Weathered v. Meek, Tex.Civ. App., 258 S.W. 516; Mansell Bros. v. Kruse, Tex.Civ.App., 173 S.W.2d 461.

No reversible error is presented in appellant’s points complaining of the action of the court in admitting the alleged hearsay testimony of Samuel E. Dale. The testimony by Dale concerns statements by unnamed parties supposed to have been agents of appellant to the effect that the equipment was being removed in satisfaction of the debt owed Suburban. Dale’s testimony concerning such declarations was merely cumulative of other evidence which amply supports the court’s findings and the judgment. Even if the evidence complained of was inadmissible, as appellant contends, the trial was before the court without a jury and it is presumed that the court did not consider it. No reversible error is shown. Whitener v. Traders and General Ins. Co., 155 Tex. 461, 289 S.W.2d 233; Stevens Brothers v. Mills, Tex.Civ.App., 336 S.W.2d 921, (Ref.N.R.E.).

The judgment is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Dominick LONDOW, Appellant, v. John Adam BERGERON et al., Appellees.
    No. 6718.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 6, 1966.
    Rehearing Denied Jan. 26, 1966.

      Fuller & Fuller, Port Arthur, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

This is an intersection collision case in which the plaintiff’s wife was killed. The parties are referred to here as they were in the trial court or by name. The accident occurred at the intersection of Thomas Boulevard and DeQueen Boulevard in Port Arthur, Texas. It involved an automobile being driven by the deceased and a truck being driven by the defendant Bergeron. Trial was to a jury. It was stipulated that defendant Bergeron, at the time of the accident, was acting in the course and scope of his employment for the defendant, Little Brownie Bakery Company, Inc. It was further stipulated that the accident and injuries received therein were the proximate cause of the death of the deceased. In answer to Special Issue No. 1 the jury found that Bergeron failed to yield the right-of-way to the deceased; No. 2: that such failure to yield the right-of-way was not negligence. The causation issue (No. 3) was not answered.' Issue No. 2 was conditioned on an affirmative answer to No. 1 and Issue No. 3 was conditioned on an affirmative answer to No. 2. There were no other findings of negligence on the part of either party. The trial court overruled the plaintiff’s motion for judgment non obstante veredicto and granted defendants’ motion for judgment on the verdict decreeing that plaintiff take nothing by his suit against said defendants.

Plaintiff has filed eight points of error, the first seven of which are grouped and briefed together. We treat them accordingly. Basically, as stated in plaintiff’s brief, these first seven points of error present two propositions:

“(1) That the Jury having found that the defendant, Bergeron, was guilty of failure to yield the right of way, it therefore necessarily follows as a matter of law that such failure was negligence and a proximate cause of the collision in question, and that therefore, the plaintiff is entitled to recover judgment in the amount found by the Jury.
(2) Alternatively, that if the plaintiff is not entitled to recover judgment for such sum, that the answer of the Jury to Special Issue No. 2 is without support in the evidence and is contrary to the great weight and preponderance of the evidence, and therefore should be set aside, and a new trial ordered.”

Thomas Boulevard and DeQueen Boulevard are each divided by an esplanade. Both streets are approximately the same width and are wide enough to accommodate two vehicles on each side of the esplanade, though the street are not divided by lines. DeQueen runs north and south and Thomas runs east and west. In the trial of the case, the south side of Thomas was referred to as the “first section” of said Boulevard, and the north side was referred to as the “second section”. They will be so designated here. The following sketch of the intersection, which does not purport to be according to scale, is taken from defendants’ brief for clarity.

There are stop signs located at the intersection requiring traffic on DeQueen to stop, and there are no such stop signs controlling traffic on Thomas. Immediately prior to the accident in question, the plaintiff’s wife was driving a Pontiac automobile in a westerly direction on the second section of Thomas and Bergeron was driving in a northerly direction on DeQueen. The parties are not in dispute as to whether or not Bergeron should have yielded the right-of-way. He took the position that he was properly stopped at the time the collision occurred. Plaintiff took the position that, based on the undisputed evidence with regard to the paths of the vehicles and the damage done to the vehicles, that he could not have been stopped at the time, but that, on the contrary, he drove his vehicle into the vehicle of the deceased in violation of Art. 6701D, § 73(a) and/or § 73(b), Vernon’s Ann.Civ.St.

The only two eye witnesses to the accident were Bergeron and one J. W. Good-ridge. In connection with plaintiff’s first two basic propositions for reversal, as here-inabove first set out, we refer to the testimony of these witnesses and the physical facts surrounding the accident. Bergeron’s testimony unequivocally established that he stopped his truck at the stop sign prior to entering the first section of Thomas Boulevard. He then entered the intersection and stopped in the esplanade portion of the Boulevard so that his bumper was even with an imaginary line connecting the esplanade ■ at the second section of Thomas Boulevard. His vehicle, which never entered the second section of Thomas Boulevard, was stopped at the time of the accident. He testified that while his truck was stopped he saw the plaintiff’s wife approaching him only ten feet from his truck. In this short distance the plaintiff’s wife came directly toward defendants’ truck and the left side of plaintiff’s vehicle struck the bumper of defendants’ truck; plaintiff’s wife lacked only six or eight inches missing defendants’ truck.

Witness Goodridge testified that at the time of the accident, defendants’ truck was stopped. Further:

“Q. From that experience, Mr. Goodridge, considering the paths of these vehicles, this one going West and this one headed in this direction (indicating). And assuming this to be a fact, that there was no damage on the front of the Pontiac, that the damage began at the front door, no damage to the front fender, would you not conclude, sir, based upon your experience and all, that this vehicle would have had to have moved into the side of the Pontiac. Can you explain to me how this vehicle could strike the parked car with the side of the vehicle and not with the front?
A. Yes.
Q. Tell me about that, sir, if you will.
A. On Thomas Boulevard on the left hand side there is a little rise, if you get on that little rise you try to pull your car to see something in front of you. And when you try to pull over just a little bit, that will swing the car itself sideways.”

Defendants’ theory of the lawsuit is further supported by the following testimony of Bergeron:

“Q. During the time which was relatively short, if you didn’t see her until she was ten feet away, during the time you did see her, did her car continue in a straight path?
A. Did it continue in a straight path?
Q. Yes, in a straight path.
A. Well, it went as far as it could.
⅜ ⅜⅞ >⅛ S-i ⅝
Q. I understand after the impact it did something else, but I am talking about between the time you first saw her down ten feet away to the time it came in contact with your vehicle, in that short period of time, was it going straight, in a straight path?
A. It wasn’t going with the intention of missing the truck.
⅜ ⅜ ⅝ ⅜ ⅜ ⅝
Q. And when you first saw her vehicle, was it driving in the lane closest to the esplanade?
A. Closes in — Yes, sir. It was on its — •
Q. On the inside?
A. Yes, because if it had been driving in a normal way it would have been over that line.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Q. What I’m pointing out, you probably realized the better and more proper thing was to leave it (Defendants’ truck) where it was at (at the time of the impact) ?
A. Yes, Sir, and we probably all wouldn’t be here today.”

By appropriate counterpoints defendants have perhaps correctly raised the contention that plaintiff waived his right to have Issues 2 and 3 answered by the jury because of plaintiff’s failure to plead that Bergeron was guilty of negligence per se in failing to yield the right-of-way and because plaintiff requested the conditional submission of said issues as hereinbefore mentioned, under the authorities of Groendyke Transport Co. v. Dye, Tex.Civ.App., 259 S.W.2d 747 (wr. dism’d); Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, n. r. e. However, we need not determine the merits of this appeal on such counterpoints.

Plaintiff correctly concedes in his brief that, as a general proposition, questions of negligence and proximate cause are usually questions of fact requiring a jury finding. The statutory duty to yield the right-of-way is not absolute, but is conditional. Checker Cab Co. v. Wagner, Tex.Civ.App., 199 S.W.2d 791 (n. w. h.); McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (Tex.). Where the duties imposed by statute are conditional, “they do not dispense with the necessity of a finding of fact as to whether the conduct of a motorist was negligent under the circumstances.” Booker v. Baker, Tex.Civ.App., 306 S.W.2d 767, n. r. e. Clearly, the facts of this case regarding negligence and proximate cause require the application of the common law standard of care of what a reasonable and prudent man would have done under the circumstances. The statute upon which plaintiff relies (Art. 6701D, § 73(b)) required Bergeron to stop in obedience to the stop sign aforesaid, and then proceed with caution, yielding to vehicles “approaching so closely as to constitute an immediate hazard.” Missouri-Kansas-Texas R. R. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931; Wilson v. Manley, Tex.Civ.App., 347 S.W.2d 778, n. r. e.; Booker v. Baker, supra. Although these last mentioned decisions relate to other sections of our Uniform Traffic Code we have no doubt their reasoning is applicable here.

.There is sufficient evidence in the record to show that plaintiff probably “side-swiped” defendants’ truck due to the rise confronting her in the street immediately prior to the accident. The only other evidence compels the conclusion that Bergeron acted as an ordinarily careful and prudent person would have acted in stopping his truck between the esplanade as he did. The decisions, upon which plaintiff relies, United Gas Corp. v. Crawford, 141 Tex. 332, 172 S.W.2d 297; San Antonio Brewing Ass’n v. Wolfshohl, Tex.Civ.App., 155 S.W. 644 (wr. ref’d); Burton v. Billingsly, Tex.Civ.App., 129 S.W.2d 439 (wr. ref’d); Dales v. Thompson, Tex.Civ.App., 162 S.W.2d 156, are distinguishable upon the facts. Plaintiff’s first seven points are accordingly overruled.

Relative to plaintiff’s last point of error, and as shown by the affidavit of plaintiff’s counsel attached to the motion for new trial, the record reflects that the verdict of the jury was accepted by the court in the absence of plaintiff’s counsel; that this was done even though the jury had resumed its deliberations after a lunch break at approximately 1:30 p. m. and that thereafter, the jury panel for the next case on the docket began to assemble in the courtroom in order that the jury selection might begin at 2:00 p. m. Plaintiff’s counsel thereupon went across the hall to the chambers of the Honorable Judge George Buford to await the verdict of the jury in this case. Furthermore, the place where the counsel was seated in the chambers of Judge Buford was clearly visible from the hallway separating the two courtrooms. That thereafter the jury announced that it had reached a verdict, but counsel for the plaintiff does not know what time this occurred, however, the Judge’s notation on the docket sheet shows that the verdict was actually accepted and ordered filed at 2:03 p. m. Such affidavit further shows that had counsel for the plaintiff been given an opportunity to do so, a poll of the jury with respect to its answer to Special Issue No. 2 would have been requested.

This last point of error is overruled. Apparently, as there is no contention or implication to the contrary, plaintiff’s counsel was absent from the courtroom and left no word where he could be located. If he desired to be present when the verdict was received, the burden was upon him to inform the court where he could be found. The statute does not provide notice to be given to either party to be present when a verdict is returned. Lawrence v. Cananea Consol. Copper Co., Tex.Civ.App., 237 S. W. 959 (wr. dism’d); Rodriguez v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 35 S.W.2d 510.

Judgment affirmed.