text:
    George Edmond ANNIS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35848.
    Court of Criminal Appeals of Texas.
    May 29, 1963.

      No attorney on appeal, for appellant.
    Henry Wade, Dist. Atty., Walton Bond-ies, John Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary; the punishment, 5 years.

It was established by the deputy tax collector and the porter that the Oak Cliff tax office was closed and intact when they left on the evening of October 2 and that when they returned the next morning the hack door had been broken in and the safe was missing.

Officers Smithson and Brooks testified that at midnight on the night in question they observed a pickup truck run a stop sign and gave chase. Appellant, who was the sole occupant of the pickup, brought the same to a halt and fled through blood weeds head high, and the officers were unable to apprehend him. They did, however, the following day after tracing the ownership of the pickup, arrest appellant. His confession that he and one MacWithey burglarized the tax office and that he was taking the safe out in the country where he might hide it until he secured the tools needed to break it open when he saw the police car following him, which caused him to abandon the pickup and the safe, was introduced without objection.

Appellant did not testify or offer any evidence in his own behalf.

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


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Joe H. FARABEE, Appellant, v. The STATE of Texas, Appellee.
    No. 35847.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Leland D. Sutton, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The indictment charged the appellant with the theft of a check of the value of more than fifty dollars. Upon conviction his punishment was assessed at a term of two years.

Appellant made a motion to quash the indictment on the ground that the check was not sufficiently described. The motion was timely presented, considered and overruled. Proper exception was reserved. Cox v. State, 7 Tex.App. 495. This cause has been before us on a former appeal. We reversed and remanded the case, Farabee v. State, Tex.Cr.App., 362 S.W.2d 117, in an opinion by the writer, because of the trial court’s refusal to permit the appellant to testify as to certain transactions. No motion to quash the indictment was made on the former appeal, and the sufficiency of the indictment was not called to our attention, nor urged as fundamental error on appeal.

The indictment in part alleges that the appellant “ * * * did then and there unlawfully and fraudulently take a negotiable instrument, to wit: a check of the value of over Fifty ($50.00) Dollars, the same then and there being the corporeal personal property. * * * ”

The contention urged for reversal in this cause is the same as that which was presented in Perry v. State, 141 Tex.Cr.R. 291, 148 S.W.2d 412. There this Court said:

“It will be noted that there is no description of the check whatever. It does not show by whom it was drawn, its date, amount of the check, the number, nor to whom it is payable. It merely alleges it was a check of the value of $15. The complaint and information are insufficient for lack of description. Fulshear v. State, 59 Tex.Cr.R. 376, 128 S.W. 134; Gaines v. State, Tex.Cr.App., 77 S.W. 10; Calentine v. State, 50 Tex.Cr.R. 154, 94 S.W. 1061, 123 Am.St.Rep. 837; Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095, 1097; Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561; Burns v. State, 112 Tex.Cr.R. 328, 16 S.W.2d 538; Sasse v. State, 113 Tex.Cr.R. 513, 22 S.W.2d 941; Fuller v. State, 118 Tex.Cr.R. 588, 37 S.W.2d 1034; 41 Tex.Jur. 117, paragraph 73. Carlton v. State, 132 Tex.Cr.R. 537, 106 S.W.2d 279.
“That the check must be sufficiently described to identify it has been so frequently considered and the reason for the conclusion so thoroughly discussed that we deem it unnecessary to further treat the subject in this opinion.”

The disposition in Perry is applicable and controlling in this case.

For the defect in the indictment as pointed out, the judgment of the trial court is reversed and the cause ordered dismissed-


text:
    Ex parte Billy Ray HOPKINS and Betty Joyce Hopkins.
    No. 35868.
    Court of Criminal Appeals of Texas.
    May 29, 1963.

      No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellants to custody for extradition to the state of Arizona.

The state’s proof consisted of the governor’s warrant, the requisition of the governor of the State of Arizona, with supporting documents.

The record is before this court without a statement of facts or bills of exception and there is no indication that appellants made any issue as to identity. See: Ex parte Starnes, 169 Tex.Cr.R. 349, 334 S.W.2d 173.

No brief has been filed in appellants’ behalf.

The judgment of the trial court, reflecting no error, is affirmed.


author: WERLEIN, Justice.

text:
    Thomas B. ANGEL, Jr., Appellant, v. Mary F. Angel TODD, Appellee.
    No. 14100.
    Court of Civil Appeals of Texas. Houston.
    May 23, 1963.

      DeCoux & DeCoux, Jacque DeCoux, Houston, for appellant.
    Wm. H. Scott, Jr., Houston, for appellee.
   WERLEIN, Justice.

This is an appeal by Thomas B. Angel, Jr., from an order increasing child support payments decreed by the court for the support of the four minor children of appellant and appellee in the divorce decree of May 24, 1954. The question before us is whether the trial court, upon the hearing of appellee’s motion, abused its discretion in entering the order of July 11, 1962 increasing the payments from $200.00 to $300.00 per month for support of such children.

The parties to the cause agreed that the narrative statement of facts included in the transcript, together with a copy of the original divorce decree and an amendment thereto made in July, 1957 changing visitation rights, is a full and correct statement of all the facts given in evidence and of all the evidence adduced on the hearing.

The agreed statement of facts shows that appellant was called as an adverse witness by counsel for appellee. He testified in substance that subsequent to the divorce appellee married one Robert Todd; that appellee has custody of the four children; that since the divorce, appellant had married Wilma R. Angel, and that three children were born of that marriage; that he and Wilma were divorced several years ago in Kentucky and the divorce decree orders him to pay $225.00 per month child support to Wilma R. Angel for said three children; that about 18 months ago he married his present wife, Mauvis M. Angel, and one child was born of their marriage; that he is a veterinarian and has a veterinary clinic in Kentucky and lives in a small house behind the clinic; that his taxable income in 1961 was $15,803.80 before federal and state income taxes were paid in the respective sums of $2,108.48 and $508.70; that he is not financially able to pay more than $200.00 per month for the support of the four children of himself and Mary F. Angel.

He further testified that his taxable income in 1959 was $28,753.99 and in 1960 $17,494.09; that his .gross income the last few years was approximately the same, hut his personal income had gone down because he could not do all the work he had done in the past since it was injuring his health; that he had to have more employees and that he had to meet payments on the veterinary clinic, land and buildings, and such payments would continue; that his income had been diminishing the last few years; that the cost of living was greater where his children by his second marriage were living; and that the total payments he had to make are in excess of his anticipated income, without taking into account his personal living expenses, and expenses of his present wife and child.

After appellant had so testified in substance and had also testified as to the reasons he wanted the children with him for longer periods, and that if he had the children he, as their father, could provide better care for them and put the $200.00 per month in the bank, the court stopped the testimony, and after a conference in chambers announced its order increasing the child support payments from $200.00 to $300.00 per month, and directing that such payments be made each month including the time the children were visiting appellant.

Appellant contends that since there is no evidence whatever of any changed conditions with respect to appellant’s ability to pay other than testimony of his diminished income and greatly increased expenses, and no evidence whatever as to the needs and requirements of his four children or the necessity for increasing the amount of child support, the court’s action in ordering an increase in such payments was arbitrary and a clear abuse of the court’s discretion. Appellee, on the other hand, takes the position that this Court may take judicial knowledge of the diminishing purchasing power of the dollar, and of the fact that the four children who were at the time of the divorce of ages ranging from 3 months to 5 years, are now 8 years older and require a larger amount for their support.

The rule with respect to child support is stated in Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100, 15 A.L.R. 564:

“In determining the duty of the husband to supply necessaries to his children, before or after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations, which may include those assumed to another wife and to other children, and in no event is he liable for food, clothing, attention, or education other than such as is suitable to his and their circumstances in life.” See Barlow v. Barlow, Tex.Civ.App.1955, 282 S.W.2d 429.

At the time the divorce was granted the court found that the reasonable amount that appellant should pay as child support for his children was $200.00 per month. A fact or condition once proven or known to exist, will be presumed, in the absence of evidence to the contrary, to have continued in effect. Martinez v. Gutierrez, Tex.Com.App.1933, 66 S.W.2d 678. As stated in 23 Tex.Jur.2d, p. 118, Evidence, § 76: “The presumption of the continued existence of an established status or condition is merely an inference of fact that can be rebutted, since it obtains only in the absence of proof to the contrary.”

It is true that the order of child support is subject to change from time to time as conditions might change, but unless some action is taken by the one seeking such change to show a change of conditions, the child support should and will continue at the figure last set by the court. DuPre v. DuPre, Tex.Civ.App.1954, 271 S.W.2d 829.

We may take judicial knowledge of the mounting cost of living in these inflationary times, but we cannot judicially know without some evidence the extent thereof. Moreover, the law is well settled that the amount of support under Article 4639a, Vernon’s Annotated Texas Statutes, depends upon the varying financial circumstances of the responsible parent and his ability to pay, as well as upon the needs and requirements of the children and their surroundings and circumstances. McAfee v. McAfee, Tex.Civ.App.1953, 258 S.W.2d 824; Lacy v. Lacy, Tex.Civ.App., 122 S.W.2d 1104.

In the instant case the only evidence is to the effect that appellant had greatly increased expenses to take care of and that his income had diminished over the past several years. There is no evidence concerning his ability to pay at the time the divorce was granted in 1954 and there is no evidence of any change in his financial circumstances other than his testimony hereinabove recited. What happened in conference after the court abruptly stopped the trial is not a part of the record. The record is completely silent as to the circumstances, needs and surroundings of the children. There is no evidence of any need for additional child support or evidence that the conditions and circumstances and needs of the children as of the date of the present hearing were different than at the time of the divorce.

The burden of proof was upon appellee not only to plead but to prove changed conditions which would warrant increasing the support payments above the amount of payments decreed by the court at the time the divorce was granted. Ap-pellee failed to make such proof, and failed to rebut the presumption of continuance of the established status and condition. Indeed, the only evidence adduced at the trial completely fails to show any changed conditions other than the diminishing ability of appellant to pay and his greatly increased expenses. We recognize that the trial court is vested with wide discretion in determining the amount of the child support payments that should be made, but an order increasing or decreasing child support payments should be based upon evidence and not entered without proof of changed conditions.

It is our view, therefore, that the trial court clearly abused its discretion in making such change in the absence of any evidence warranting the same. It is manifest that the case has not been fully developed and that appellee has not had an opportunity to establish a change in conditions and circumstances of the children, and of appellant, if such there be, which would warrant an increase in child support payments. The judgment of the trial court is, therefore, reversed and the cause remanded for new trial.

Reversed and remanded.

BELL, C. J., not sitting.


author: BARROW, Justice.

text:
    MEDINA ELECTRIC COOPERATIVE, INC., Appellant, v. Ruland A. BALL, Appellee.
    No. 14100.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1963.

      Frank X. Vance, Hondo, Frank R. Nye, Jr., Rio Grande City, for appellant.
    Suttle & Kessler,, Uvalde, for appellee.
   BARROW, Justice.

This is an appeal by the condemning authority from a judgment entered in a condemnation proceeding involving an easement for a transmission line and the taking of a one-half acre tract of land for a substation location. The land condemned is on the northern part of appellee’s 932 acre ranch and adjoins a paved highway about a mile and a half southwest of Uvalde, Texas. The jury verdict awarded appellee the total sum of $9,280.00 and appellant seeks reversal of the judgment entered for appellee in this amount.

The sole point complained of by appellant is the alleged error of the trial court in permitting appellee’s witness, Dr. Spring, to testify that appellee’s land was adaptable for subdivision into small acreage tracts along the north side where the transmission line and sub-station site are located, over the objection that such testimony was too remote, speculative and conjectural.

The narrative statement of facts provides in part:

“Dr. Spring testified that the Ball Ranch was adaptable for subdivision into small acreage tracts, especially along the north side of defendant’s land where the transmission line and substation are located. Plaintiff objected to this testimony about the subdivision for the reason that same was too remote, speculative and conj ectural. The Court overruled the objection and allowed its introduction. Dr. Spring testified further that small acreage tracts could be sold in tracts of five acres each for about $5,000.00 a tract along the highway. No objection was made to such testimony or to the introduction of the plat.”

Appellant asserts that the land was raw pasture land which had never been subdivided and that it was improper to consider the value of the condemned land for subdivision purposes. Dr. Spring and the other witnesses testified that the ranch was of the overall value of about $125.00 an acre. Appellant cites the following authorities in support of its position: City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Continental Development Corp. v. State, Tex.Civ.App., 337 S.W.2d 371; and Minyard v. Texas Power & Light Co., Tex.Civ.App., 271 S.W.2d 957. The admissibility of testimony as to the value of land for purposes other than that to which it is being put at the time of the taking has been recently considered by this Court in Lower Nueces River Water Supply Dist. v. Collins, Tex.Civ.App., 357 S.W.2d 449.

We do not deem it necessary to pass upon this point, since similar evidence to that complained of by appellant was offered and received without objection. From the quoted excerpt from Dr. Spring’s testimony it is seen that he testified without objection to the sale price of small acreage tracts, and that a plat of a proposed subdivision was introduced in evidence without objection. In addition thereto, appellee’s witness Kimble testified, without objection, that portions of the Ball Ranch were adaptable for sale in small acreage tracts from five to ten acres along where the sub-station site and appellant’s transmission line were located, and that such tracts would have a value of $1,-000.00 per acre. The witness Carper testified, without objection, that portions of the land burdened with the easement and along the highway were adaptable for sale in small tracts, but that the easement and substation location affected the values adversely.

The rule is well settled that the trial court’s admission of evidence over objection is deemed to be harmless if the objecting party subsequently permits similar evidence to be introduced without objection. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103; Olan Mills Inc. v. Prince, Tex.Civ.App., 336 S.W.2d 186; Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506; Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253; 23 Tex.Jur.2d § 208.

Since similar evidence to that complained of by appellant, in its only point, was admitted without objection, it is our opinion that the error, if any, in the admission of same was harmless and the judgment should be affirmed. Rule 434, Texas Rules of Civil Procedure.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    C. E. TEAGUE, Appellant, v. David E. WASHBURN, Appellee.
    No. 3795.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1963.
    Rehearing Denied June 7, 1963.

      Henderson & Bryant, Sherman, for appellant.
    Rogers & Rogers, Sherman, for appellee.
   GRISSOM, Chief Justice.

David E. Washburn sued C. E. Teague and others to recover for personal injuries and property damages caused by an automobile-truck collision. A jury found that O. E. Teague was guilty of various acts of negligence which proximately caused the collision and that Washburn was not negligent. The court rendered judgment for Washburn against C. E. Teague for $11,-675.45. C. E. Teague has appealed.

Appellant’s points are that (1) the court erred in refusing to instruct the jury in connection with the damage issue that Wash-burn’s preexisting congenital condition could not be considered, except as it might have been aggravated by the collision; (2)_ that the court erred in submission of the damage issue in not restricting the jury’s consideration to damages resulting from appellant’s negligence and (3) that the court erred in refusing to grant a new trial because appellee’s attorney advised the jury, after it had returned the verdict, that appellant’s insurance company would have a representative approach them to learn the inature of their deliberations and that, if they wanted to keep their deliberations secret, they could refuse to talk to him.

Relative to appellant’s first point, that the court erred in not instructing the jury in connection with the damage issue that the preexisting congenital condition of Washburn’s neck and low back could not be considered in determining damages, ex-ce'pt as it might have been aggravated by the injury, issue 50 inquired what amount of money would compensate Washburn for the injuries sustained at the time and place and on the occasion made the basis of the suit. The jury was instructed in detail what they might consider in determining Washburn’s damages. Appellant objected because it failed to instruct the jury not to consider such preexisting conditions except as aggravated. The objection was overruled. It was undisputed that prior to his injury Washburn had congenital abnormalities in his neck and low back. Said conditions were closely related to his complaints upon the trial. Appellee’s recovery must be based upon the testimony of appellee and his doctor as to the condition of Washburn’s neck and low back after the collision. The medical witnesses for both parties admitted the existence of an excessive curve in Washburn’s low back. Appellant’s doctor was of the opinion that this condition was congenital, that he was born that , way. Appellant’s doctor testified that in his opinion it was not affected by his injury. Ap-pellee’s doctor had the opposite opinion. Appellee’s doctor testified that, in his opinion, as a result of the collision, Washburn had “lots of muscle spasm”, small tears of the muscle and ligaments that help support his neck, and a severe strain of similar parts in his low back; that such conditions were probably caused by the wreck and that muscle spasm in the low back increased its congenital curvature. He testified that he examined Mr. Washburn shortly before the trial and that the objective symptoms he found at that time were primarily limitation of motion of the neck and “increased” curvature of the low back. There was testimony that prior to his injury Washburn was a healthy man, able to do hard work as a carpenter without pain and that he could not now do so thereafter. Under such condition of the record, Washburn’s counsel asked a medical witness hypothetical questions inquiring in substance whether, assuming that some of Washburn’s trouble was caused by a congenital abnormality and that prior to his injury he was able to do hard manual labor as a carpenter without pain in his back and neck and without limitations that are presently caused by that condition, it was reasonably probable that Washburn’s congenital condition was aggravated by the injury. Said doctor testified that, so assuming his answer was “Yes.” He further testified that he knew that some of the larger industrial companies would not hire a man with Washburn’s congenital conditions. Doctors for both appellant and appellee testified to the congenital abnormality of appellee’s low back. In response to hypothetical questions appellee’s doctor testified, in effect, that it was reasonably probable that such .congenital conditions were aggravated by his injury in the collision. Under these conditions, we are forced to the conclusion that the court erred in refusing to instruct the jury as requested and that such error probably caused rendition of an improper judgment. In Dallas Railway & Terminal Company v. Ector (Com.), 131 Tex. 505, 116 S.W.2d 683, 685, Judge Hickman in an opinion adopted by the Supreme Court said:

“It has long been a settled rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for improper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence.”

See also Agnew v. Coleman County Electric Cooperative (Sup.Ct.), 153 Tex. 587, 272 S.W.2d 877, 881; Texas Coca-Cola Bottling Company v. Lovejoy, Tex.Civ.App., 138 S.W.2d 254, 262 (Writ Ref.); Western Cotton Oil Company v. Mayes, Tex.Civ.App., 245 S.W.2d 280; Eubanks v. Colbert, Tex.Civ.App., 327 S.W.2d 457.

Appellee says that said objection to the damage issue failed to point out distinctly the matter to which it refers, citing City of Houston v. Priester, Tex.Civ.App., 302 S.W.2d 948. While the exception could have been in greater detail, under the situation shown it is evident the court must have understood the matter to which the objection referred, that is, that the court had failed to instruct the jury that in assessing damages it could not consider Wash-burn’s congenital abnormality, except as it might have been aggravated by the collision. Appellee cites Yellow Cab and Baggage Company v. Green (Sup.Ct.) 154 Tex. 330, 277 S.W.2d 92, in support of its contention that it was not necessary to so instruct the jury. In that case the damage issue, taken with the explanatory instructions, did affirmatively instruct the jury not to allow any damages for pain, suffering or loss of earnings not proximately caused by defendant’s negligence. There was no similar instruction here.

Under appellant’s second point it is contended the court erred in submission of the damage issue in not restricting the jury’s consideration to the elements of damage caused by appellant’s negligence. Upon another trial the court should do so. Reversible error is not shown, as contended in appellant’s third point, by appellee’s attorney advising the jury, after it had returned its verdict, that appellant’s insurance company would have a representative contact them to learn the nature of their deliberations and that they could keep their deliberations secret by refusing to talle to him. In the absence of evidence that the jurors refused to tell appellant about something pertinent to his motion for new trial harm is not shown.

The judgment is reversed and the cause is remanded.


author: WILLIAMS, Justice.

text:
    Aline BALLARD, Appellant, v. ASSOCIATES INVESTMENT CO., Appellee.
    No. 16166.
    Court of Civil Appeals of Texas. Dallas.
    May 3, 1963.
    Rehearing Denied May 24, 1963.
    Fritz & Vinson and John R. Bryant, Dallas, for appellant.
    Robert R. Cole, Dallas, for appellee.
   WILLIAMS, Justice.

Summary judgment proceeding. Rule 166-A, Texas Rules of Civil Procedure. The suit was originally filed by G. F. C. Corporation (which is not a party to this appeal) against Aline Ballard (also known in this record as Aline Ballard Washington), seeking a judgment for balance due on a note and foreclosure on a chattel mortgage executed by defendant, and also seeking judgment against the original payee and lien holder, Morris Robinson, from whom G. F. C. Corporation took an assignment. The automobile in question was sequestered by G. F. C. Corporation and later sold by the Sheriff and the proceeds placed in the Registry of the Court. Associates Investment Company filed its intervention alleging that it held a chattel mortgage and superior lien on the automobile in question securing a note signed by Morris Robinson and alleging a balance due on the note in the sum of $750. Associates Investment Company sought judgment for the balance due against Morris Robinson, and for foreclosure on its chattel mortgage lien against all parties to this action.

The record reveals that Morris Robinson delivered to Associates Investment Company the original title certificate to the automobile, same being signed in blank by John K. Mumford, the original owner, said certificate revealing that said automobile was free of any lien. Associates Investment Company held the title certificate at all times pertinent to this cause of action. The record also reveals that at the time Aline Ballard took possession of the automobile from Morris Robinson he did not deliver to her a certificate of title, nor was any certificate ever delivered to her. The record is not clear as to whether or not Aline Ballard demanded a certificate of title upon delivery of the automobile to her. The trial court sustained a motion for summary judgment filed by Associates Investment Company and rendered judgment against Morris Robinson for the unpaid balance of the note, and against Morris Robinson and Aline Ballard, and all other parties, for foreclosure of the chattel mortgage lien held by Associates Investment Company. Following severance of the causes of action Aline Ballard only appeals.

Appellant’s principal point on appeal reads: “The court erred in granting summary judgment for appellee.” This point does not comply with Rule 418, T.R.C.P. in that it is too general in nature. White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S.W.2d 793; Little v. Employees Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517. However, as we pointed out in the Little case, where the grounds upon which appellant apparently relied are disclosed in the statements and arguments accompanying the point on appeal we would consider said point, though not sufficient to meet the requirements of the rule.

From appellant’s statement and argument under the point we gather that it is her contention that there is an issue of fact as to whether she made a demand on Morris Robinson for the certificate of title at the time she took possession of the automobile. She says therefore that a fact issue is presented that she was an innocent purchaser for value. Appellee, by countervailing point, contends that the record is undisputed that appellant did not receive a certificate of title from Morris Robinson at the time she purchased the automobile and she thereby failed to comply with the mandatory provisions of the Texas Certificate of Title Act and lost her status as an innocent purchaser without notice of appellee’s lien. Moreover, says appellee, by its possession of the Certificate of Title to the vehicle, the appellee effectively prevented the appellant from in fact purchasing the automobile under the Certificate of Title Act.

Appellee contends further that even admitting that appellant made a demand on Morris Robinson to produce the certificate of title she did not follow through and receive same; that a mere demand not coupled with effective conduct on the part of appellant is not sufficient. The Texas Certificate of Title Act, being Art. 1436-1, Texas Penal Code, by Section 52 thereof, provides that it shall be unlawful to buy or acquire any title other than a lien in a motor vehicle without then and there demanding of the proposed seller the registration receipt and certificate of title covering the particular motor vehicle which shall, upon consummation of the purchase, be transferred upon such form as may be provided by the Department. Section 33 of said Act provides that no motor vehicle shall be disposed of at subsequent sale unless the owner designated in the certificate of title shall transfer the certificate of title which shall state, among other matters, that the signer is the owner of the motor vehicle, and that there are no liens against such motor vehicle, except as are shown by the certificate of title and “no title to any motor vehicle shall pass or vest until such transfer be so executed.” Section 45 of the Act provides that: “Exposure for sale of any motor vehicle by the owner thereof with the knowledge or consent of any mortgagee shall not affect the rights of any mortgagee as against all third parties.”

It must be borne in mind that the question here presented relates to the rights as between appellant and appellee and not the right as between appellant and Morris Robinson. A sale of an automobile not in compliance with the Certificate of Title Act has been held to be valid as between the parties. Rush v. Smitherman, Tex.Civ.App., 294 S.W.2d 873, err. ref. However, where a third party’s rights are involved, the owner’s sale made without compliance with the Certificate of Title Act is void. Griffin v. Moon, Tex.Civ.App., 288 S.W.2d 543; Erwin v. Southwestern Investment Co., 147 Tex. 260, 215 S.W.2d 330 and Coffield v. International Harvester Co., Tex.Civ.App., 359 S.W.2d 211.

It is our opinion that the record in this case demonstrates conclusively that Aline Ballard was not an innocent purchaser for value of the automobile in question and therefore, no fact issue being presented, the trial court was correct in granting summary judgment. The case of Clade v. National City Bank of Waco, Tex.Civ.App., 229 S.W.2d 815, wr. ref. n. r. e., is directly in point in both fact and law. In that case the certificate of title to said automobile was executed in blank and held by the Bank which took the chattel mortgage on the automobile. Clade purchased the automobile from the mortgagor and requested the certificate of title and license receipt but the mortgagor advised Clade that the certificate of title was not available and promised that he would take care of the transfer of title for him. The court held that under these facts, very similar to the one in the case under consideration, that Clade was not an innocent purchaser for value and that the lien of the Bank was superior. The case of Associates Investment Co. v. National City Bank of Waco, Tex.Civ.App., 231 S.W.2d 661 is also directly in point. Under almost similar facts the court held that the lien of Associates Investment Company in that case was superior and subject to foreclosure and that the purchaser was not one in good faith.

Appellant’s remaining point is found to be immaterial and is overruled. It relates to alleged error of the court in overruling appellant’s motion to strike the answers of Morris Robinson to certain requests for admission of fact filed by appellant. Morris Robinson is not a party to this appeal and the requests for admissions become immaterial in view of what we have said in connection with the foregoing point of error.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    COLLEGE OF the GUADALUPE BAPTIST ASSOCIATION et al., Appellants, v. A. W. SAEGERT and Texas Hydro-Electric Corporation, Appellees.
    No. 11086.
    Court of Civil Appeals of Texas. Austin.
    May 22, 1963.
    Rehearing Denied June 13, 1963.

      W. J. Durham, Fred J. Finch, Jr., Dallas, for appellants.
    Threlkeld, Saegert & Saegert, Seguin, Carl Wright Johnson, San Antonio, for ap-pellees.
   ARCHER, Chief Justice.

Appellants C. V. Everage, R. L. Sadberry, G. C. Coleman, C. W. Black and S. E. Stewart, as Trustees of the College of Guadalupe Baptist Association, unincorporated, Guadalupe College, unincorporated, Guadalupe Baptist Association an unincorporated religious association composed of Baptist Churches and as class representatives of the beneficial owners of the College of the Guadalupe Baptist Association, incorporated, a Texas corporation now dissolved, as plaintiffs sued appellees, A. W. Saegert and Texas Hydro-Electric Corporation, in the District Court of Guadalupe County, Texas, to recover the title and possession of and to remove the cloud from the title to 41.5 acres of land situated on the east bank of the Lake Placid portion of the Guadalupe River in Guadalupe County.

It was alleged that A. W. Saegert was holding possession of the land under a deed duly recorded purporting to convey the fee simple title to him, but that the grantor of such deed had no such title, and that the fee simple title was in the plaintiffs.

The defendant A. W. Saegert pleaded “not guilty,” the ten year statute of limitation, and estoppel.

Trial to a jury on special issues resulted in a verdict in favor of appellees (defendants) on all issues, and the Court on the jury verdict and the evidence rendered judgment that the appellants (plaintiffs) take nothing by reason of their suit and in favor of A. W. Saegert on his plea for affirmative relief.

This appeal is predicated on 25 points assigned as error, and are to the effect that the Court erred in not withdrawing the case from the jury and rendering judgment for appellants, because Saegert had never lived on the land and the land was never completely fenced; in admitting appellees’ second trial amendment; because the instrument from Texas Hydro-Electric Corporation was not such notice as the law requires that appellees were claiming adversely; in refusing to define “easement” in the charge; in not disregarding the answer of the jury to Issue No. 4; in holding that the evidence was sufficient to mature title in appellee Saegert under the ten year Statute of Limitations; in not submitting appellants’ requested Issue No. 1, inquiring if the plaintiffs held common possession with Saegert; in not submitting requested issues inquiring of Saegert notified appellants that he was claiming the land adversely; in not submitting Issue No. 7, inquiring if the asserted adverse possession to the land was of such notoriety that appellants would be presumed to have notice of such adverse possession; in not submitting requested Issue No. 8, inquiring if Saegert commenced to assert adverse possession as was of such notoriety that the college would be presumed to have notice ,of such adverse claim; that the Court erred in not submitting Issue No. 9 inquiring if Saegert asserted adverse possession against Guadalupe Baptist Association Unincorporated was of such nature that the officers and trustees would be presumed to have notice of such; that the Court erred in not submitting requested Issue No. 11, inquiring if Saegert went into possession of the property involved under a written agreement, designated as lease from the President of the college; in not giving a portion of appellants' requested instruction to the effect that any sort of common use by the parties is not adverse; the error of the Court in not rendering judgment for appellants, because as a matter of law, the instrument from the Texas Hydro-Electric Corporation to Saegert could only be used as an easement, and that as a matter of law the corporation had no authority to convey the land to be used for other purposes; that the Court erred in rendering judgment for appellees because the land was not completely enclosed and the Guadalupe River ran several feet west of the boundary line ; that the Court erred in admitting the testimony of A. W. Saegert as to his transactions and conversations with Brice Taylor, President of the college, over objections because Taylor was not shown to have any authority to act for the college. Saegert testified that he took a lease from Dr. Prince and Taylor in 1940 and paid $75.00 for the first year; that the Court erred in not sustaining appellants’ Motion for Judgment Non Obstante Veredicto, because there was no legal evidence to support the findings of the jury and no evidence to support appellees’ claim for title by limitation, and finally, the appellees being strangers to the deed from Brackenridge to appellants, could not acquire any interest, and the Court erred in not sustaining the plea in abatement, and the claim asserted by appellees was based on conditions subsequent, and there was no evidence that Brackenridge ever made a re-entry upon the land.

This suit was originally filed in 1960 in the name of the “College of Guadalupe Association,” a former Texas corporation, which had expired by the term of its life.

Saegert filed a plea in abatement challenging the right of such defunct corporation to maintain the suit and in May, 1961 a first amended petition was filed naming other plaintiffs, and Saegert filed a plea in abatement. After this petition was filed and after a hearing, appellants were given leave to amend, and a second amended original petition was filed on September 10, 1962, and a trial amendment was filed on September 11, 1962, pleading title by limitations.

The Charter was issued to “The College of the Guadalupe Baptist Association” on May 28, 1888 and expired by its terms in 1938 and was not renewed.

The land involved herein is a part of a 216 acre tract conveyed in 1908 to the Guadalupe College a corporation, by George W. Brackenridge “until it conveys or encumbers the same in any way.”

In 1932 the 41.5 acre tract of land was condemned by Texas Hydro-Electric Company in a proceeding for that purpose in the County Court of Guadalupe County and the College of the Guadalupe Baptist Association was awarded $4,140.00 as damages for the overflowing and impounding of water.

On September 7, 1940 the Texas HydroElectric Corporation sold the 41.5 acre tract with other land to A. W. Saegert, retaining the right to maintain, etc. transmission and telephone lines, etc., and the right to inundate all or any part of the land and retained any and all minerals for 25 years.

The position of appellees is that the findings of the jury and the judgment of the Trial Court are amply supported by the evidence and that the Court did not err in refusing to give appellants en masse requested special issues and instructions; that Saegert told the authorized representative of the college that he intended to purchase the property; that he was told that the corporation had no title to the property; that he agreed to boundary lines between the corporation’s property and the land being purchased by Saegert; that the testimony of Taylor, et al. was admissible as to the lease and that appellants were not prejudiced by the filing of appellees’ Second Trial Amendment.

The case was submitted to the jury on eight special issues, as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that the defendant, A. W. Saegert, had included within the boundaries of an enclosure consisting of fences and other artificial and natural boundaries the land described as Tract No. 1 consisting of 30.1 acres described by metes and bounds in Defendant’s Exhibit No. 2 for a continuous period of or periods of ten years or longer prior to January 15, 1960?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 1-A: Do you find from a preponderance of the evidence that the defendant, A. W. Saegert, has had and held peaceful and adverse possession of the land described as Tract No. 1 consisting of 30.1 acres described by metes and bounds in defendant’s Exhibit No. 2, cultivating, using and enjoying the same for any continuous period or periods of ten years or longer prior to January 15, 1960?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“To aid you and govern you in your answer to the foregoing Special Issue No. 1-A,. I give you the following instructions :
“1. By the term ‘peaceable posses-session,’ as that expression is here used, is meant such possession as is continuous and not interrupted by adverse suit to recover the land, or by re-entry upon the land by the true owner, or by re-entry upon the land by the true owner and thereafter joint use by the claimant and the true owner of the land.
“2. By the term ‘adverse possession,’ is meant an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claims of all other persons whomsoever. You are further instructed that common use by the adverse claimant and the record title owner of the fee simple title, or his claimants, is not adverse possession as that term is used in this charge.
“3. The ‘claim of right’ to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself; and such must continue to be the nature of his possession.
“4. Peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them.
“5. You are further instructed that the possession of the adverse claimant must be exclusive in himself, but the use of the land by others with his permission would not destroy the exclusive character of his possession. On the other hand, the use of the land by the adverse claimant by the permission of the owner is not adverse to such owner. “Special Issue No. 2: Do you find from a preponderance of the evidence that the 5.7 acres of land described by metes and bounds as Tract No. 3 in defendant’s Exhibit No. 2 is the strip of land referred to in the instrument dated September 13, 1940, over which the defendant, A. W. Saegert, purported to grant to the College of the Guadalupe Baptist Association an easement subject to a 40 foot roadway reserved to the said A. W. Saegert?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 3 : Do you find from a preponderance of the evidence that the 5.7 acre tract of land referred to in Special Issue No. 2 is a part of the land described in the deed from the Texas Hydro-Electric Corporation to A. W. Saegert dated the 7th day of September, 1940?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 4: Do you find from a preponderance of the evidence that the defendant, A. W. Saegert has claimed the 5.7 acre tract of land under his aforesaid deed subject to the purported easement granted to the College of the Guadalupe Baptist Association for any continuous period or periods of years or longer inquired about in question No. 1?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 5: Do you find from a preponderance of the evidence that the plaintiffs or those under whom they claim represented to the defendant, A. W. Saegert, that they were not claiming title to the land described in plaintiffs’ amended petition, prior to or at the time of the completion of the purchase of the land described in the deed to A. W. Saegert from the Texas Hydro-Electric Corporation, by A. W. Saegert ?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 6: Do you find from a preponderance of the evidence that A. W. Saegert, relied on such representations, if any, inquired about in the preceding issue, in the consummation of the purchase from Texas Hydro-Electric Corporation aforesaid?
“Answer ‘yes’ or ⅛o’.
“We, the jury answer: yes
“Special Issue No. 7: Do you find from a preponderance of the evidence that A. W. Saegert expended money in improving the land described as Tract No. 1 of Defendant’s Exhibit No. 2 as 30.1 acres in reliance upon such representations, if any, inquired about in Issue No. 5 ?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes
“Special Issue No. 8: Do you find from a preponderance of the evidence that plaintiffs or those under whom they claim accepted the benefits, if any, of the lease and easement over the 5.7 acres of land described in Defendant’s Exhibit No. 2 as Tract No. 3?
“Answer ‘yes’ or ‘no’.
“We, the jury answer: yes”

Based on the verdict of the jury the Court entered a judgment that the plaintiffs take nothing and that Saegert was awarded title and possession of the property.

We believe that the verdict of the jury is reasonably supported by the record and that the judgment rendered was proper.

The record in this case is extensive, the statement of facts contains approximately 850 pages, together with many exhibits, and it has been impossible to review all of the record but we have given careful consideration to such. The case has been well briefed and at length and our task has been made easier.

On September 13, 1940 the college leased 80 acres to Saegert for a period of 3 years and as part of the consideration Saegert granted the college an easement across a portion of the land in controversy consisting of 5.7 acres on the north end thereof, reserving a right of way 40 feet wide to the highway.

The jury found that 30.1 acres of the land had been continuously enclosed by the ap-pellees and they had been using and occupying the same for more than 10 years prior to the filing of any suit by anyone.

There was evidence to show that Saegert rebuilt and replaced the fences, that he grubbed the land, bulldozed the brush, planted grasses, pecan trees and had other pecan trees grafted, dredged the lagoon and filled in the land and dug wells, all at a considerable cost. Cattle were kept on the place and it was held peaceful, continuous and with adverse possession, without question as to his right of possession, until about 1956.

Saegert testified that he had been in exclusive possession of the property, using, occupying, enjoying and claiming it adversely to everyone since the spring of 1940, and his testimony was corroborated by 16 other witnesses whose testimony we do not attempt to recite but was that the land had been enclosed and used for more than 10 years.

There was testimony by a number of witnesses that Saegert did not have continuous possession of the property, or that the property had been enclosed completely by fences.

J. A. Kemple testified that the fence on the east side of the land was not too good and that the college was in joint possession with Saegert. C. C. Brown, also a witness for the plaintiffs, testified that the fences were not in good shape. E. L. Roberts testified that the fence wasn’t a good fence, but would turn cattle. R. A. Hicks, a former caretaker of the college, testified that at times a gap was down and cattle would go through, but except for the gap the enclosure was complete.

Appellees further take the position that appellants failed to prove their title, and cite a number of cases such as French v. Olive, 67 Tex. 400, 3 S.W. 568 and Prince v. Sanders, Tex.Civ.App., 298 S.W.2d 650, writ dism.

We believe that appellees have by the evidence proven a title by limitation. 2 Tex.Jur.2d, Adverse Possession, Sec. 68, at pages 142-143. Ross v. Houston Oil Fields Ass’n, Tex.Civ.App., 88 S.W.2d 586, er. dism. Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420.

Since we believe that appellants established title by limitation by evidence in compliance with statutory requirement, we do not see any need to discuss or dispose of the question of estoppel, even in view of the answers of the jury in response to Special Issues Nos. 5, 6, 7 and 8, favorable to Saegert.

The Court did not err in refusing to give appellants’ requested issues, Point 4 failing to define the word easement, Points Nos. 8 and 9 as to common possession, and Points. Nos. 10 to 18 inclusive as to issues concerning whether Saegert gave actual notice to the college that he was claiming the land adversely, the date he gave such notice, whether Saegert actually notified the Association, after September 7, 1940 that he was claiming the land adversely, the date of such notice, whether Saegert’s assertion of adverse possession was of such “unequivocal” notice to the officers, the date thereof, whether such assertion was such that the Association would be presumed to have notice of it, and the date thereof; Point No. 18 as to whether Saegert went into possession under a lease from the President of the college and failure to instruct the jury that any sort of common use by Saegert and the college is not adverse and that there was no evidence that Saegert went into possession of the land under the lease referred to, such lease only let an 80 acre tract not here involved. The 41.50 acre tract was never leased by the college to Saegert.

The manner in which the requested issues were submitted, while not in strict compliance with the rules, we have nevertheless considered 'them and do not find any reversible error presented. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786; Texas General Indemnity Company v. McNeill, Tex.Civ.App., 261 S.W.2d 378, no writ history.

The judgment of the Trial Court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    CITY OF DALLAS et al., Petitioners, v. Daniel C. BROWN et al. and James P. Donovan, Atty., Respondents.
    No. 16193.
    Court of Civil Appeals of Texas. Dallas.
    May 22, 1963.
    See also 362 S.W.2d 372.
    H. P. Kucera, City Atty., and N. Alex Bickley, Asst. City Atty., Dallas, for petitioners.
    James P. Donovan, Dallas, for respondents.
   PER CURIAM.

Original contempt proceedings. The City of Dallas, acting through its City Attorney, by motion duly verified, moves this Court to declare respondents to be in contempt of this Court for violation of a Writ of Prohibition and Ancillary Orders issued by this Court on April 16, 1963. For a proper understanding of the issues here presented it is both desirable and essential to relate the following relevant antecedent facts.

I. On April 4th, 1961 George S. Atkinson, and others, owners of property near Love Field, a municipal airport located in the City of Dallas, filed a class suit in the District Court of Dallas County seeking to restrain the City of Dallas from the construction of a runway at said airport. Said suit being No. 59027-H, styled George S. Atkinson, et al. v. City of Dallas, also attacked the validity of certain revenue bonds which the City of Dallas was about to issue to finance construction of the airport runway.

2. On July 17, 1961 the District Court granted a summary judgment in favor of the City denying permanent injunction sought by plaintiffs.

3. On December 15, 1961 this Court, on the appeal of the above case, affirmed the judgment of the trial court. Motion for rehearing was overruled on January 19, 1962. A detailed statement of the facts and issues involved will be found in this Court’s opinion, styled Atkinson, et al. v. City of Dallas, and reported in 353 S.W.2d 275.

4. Appellants made application to the Supreme Court of Texas for a writ of error and, on March 14, 1962, the application was denied by the Supreme Court with the notation “No Reversible Error”.

5. On June 25, 1962 the Supreme Court of the United States denied a writ of certiorari in the case, and on October 8, 1962 overruled a motion for rehearing. See Atkinson v. City of Dallas, 370 U.S. 939, 82 S.Ct. 1587, 8 L.Ed.2d 808, rehearing denied 371 U.S. 854, 83 S.Ct. 18, 9 L.Ed.2d 92. By the action of the Supreme Court of the United States the judgment of this Court of December 15, 1961 became final.

6. On September 24, 1962 Respondents herein filed Civil Action No. 9276, styled Brown, et al. v. City of Dallas, et al. in the United States District Court for the Northern District of Texas, Dallas Division. By this suit they sought a permanent injunction against the City of Dallas to restrain said City from building the runway and from issuing certain revenue bonds. No temporary injunction was sought and none was granted. Forty of the plaintiffs in the case of Brown, et al. v. City of Dallas, et al. in the United States District Court were the same persons who were plaintiffs in the original suit filed April 3, 1961 in the District Court of Dallas County, Texas and other plaintiffs, all alleged to be property owners, were added in the Federal Court case.

7. On October 2, 1962, the City of Dallas and others filed an application for Writ of Prohibition and other Ancillary Mandatory Orders in this Court asking us to enforce our judgment in Atkinson v. City of Dallas by prohibiting the plaintiffs in the case of Brown v. City of Dallas, et al. in the United States District Court from attempting to relitigate the same issues and from interfering with the issuance and sale of the Love Field Revenue Bonds which this Court had declared to be valid in the Atkinson decision. This Court was also requested to direct that the plaintiffs in the Brown suit be required to dismiss said cause and refrain from filing any other litigation in reference to said runway and Love Field Revenue Bonds.

8. On October 6, 1962, the plaintiffs in the Brown suit filed an application in the United States District Court seeking to enjoin this Court from considering or acting upon the City’s application for writ of prohibition.

9. On October 10, 1962, at the hearing, the United States Court dismissed the application for injunction to restrain this Court from further considering the City’s application for a writ of prohibition.

10. On October 24, 1962, by a divided court, with Chief Justice Dixon and Associate Justice Williams filing a majority opinion, we denied the City of Dallas the relief sought in its application for writ of prohibition. Associate Justice Young filed a written dissenting opinion. The motion for rehearing filed by the City of Dallas was overruled on November 23, 1962. City of Dallas, et al. v. Brown, et al., Tex.Civ.App., 362 S.W.2d 372.

11. On December 8th, 1962, the City of Dallas, as petitioner, filed its original application for a mandamus in the Supreme Court of the State of Texas in which it was asked that the Supreme Court order and direct this Court of Civil Appeals to grant the relief prayed for and which relief this Court had denied in cause No. 16,193, styled City of Dallas, et al. v. Brown, et al, 362 S.W.2d 372.

12. The Supreme Court of the State of Texas in cause No. A-9340, styled City of Dallas, et al., Relators v. Dixon, Chief Justice, et al., Respondents, did by written opinion dated March 15 1963, issue its order, styled “An Original Mandamus” directing this Court to issue a writ of prohibition and other ancillary orders granting to the City of Dallas the relief sought against further prosecution of the case involving the same issues as had been previously foreclosed in the Atkinson case. City of Dallas, et al. v. Dixon, Chief Justice, et al., Tex., 365 S.W.2d 919. The Supreme Court overruled motion for rehearing and notice was given to this Court to comply with the order of the Supreme Court.

13. Thereafter no action was taken by respondents to cause such decision of the Supreme Court of Texas to be reviewed by the Supreme Court of the United States.

14. The Supreme Court of Texas in its opinion, held that the parties in the case of Brown v. City of Dallas in the Federal Court were bound by the decision in Atkinson v. City of Dallas. In this regard the court said:

“It is immaterial that Brown is not a class action. The controlling fact is that Atkinson was a class action as authorized by Rule 42, Texas Rules of Civil Procedure; and being a class action of the hybrid type, the judgment in Atkinson binds all members of the class insofar as validity of the bonds and the right of the City to construct the runways are concerned if the class was adequately represented by those who sued on behalf of the class. McDonald, Texas Civil Practice, Vol. 1, § 3.37, pp. 283-284; Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224. The description of the plaintiffs in Brown, quoted above, shows clearly that they are members of the class represented by the plaintiffs in Atkinson, and it is not suggested that they were not adequately represented in that suit. Their right to relitigate the same issues is foreclosed by our decision in Hovey v. Shepherd, supra. This must be so. If it were not so, different groups of Dallas citizens could halt all efforts of the City to improve its airport facilities indefinitely by filing new suits. Such an absurdity cannot be tolerated.”

15. The Supreme Court, by its opinion, also held that the issues sought to be litigated in the Federal Court are essentially the same as the issues litigated in Atkinson to final judgment. Thus the court said:

“An analysis of the petition in Brown discloses that the issues sought to be litigated are essentially the same as the issues litigated in Atkinson, and the prayer is for the same ultimate relief. Such additional collateral issues as are injected in Brown could, by diligence, have been litigated in Atkinson. They are, therefore, also foreclosed by the judgment in Atkinson.”

16. Pursuant to direct order of the Supreme Court of Texas, this court did, on April 16, 1963, grant its Writ of Prohibition and Ancillary Orders, directed to the Respondents providing that said parties and all of them;

“together with all persons similarly situated, are hereby prohibited from prosecuting, urging or in any manner seeking to litigate, as attorney and/or plaintiffs, case No. 9276 styled Brown et al. v. City of Dallas, et al. now pending in the United States District Court for the Northern District of Texas, Dallas Division, and they and each of them, individually, and as a class, are further prohibited and enjoined from filing or instituting any litigation, lawsuits and other actions, seeking to contest the right of the City of Dallas to proceed with the construction of the parallel runway as presently proposed at Love Field situated within the City of Dallas, Texas, or from instituting and prosecuting any further litigation, lawsuits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds heretofore issued under authority of Art. 1269-J, V.A.C.S. or that might be issued under said Article for the construction of the Love Field runway and the ancillary improvement in connection therewith, or from, in any manner interfering with or casting any cloud upon, or slandering the title of, or interfering with the delivery of, the proposed bonds by the City of Dallas, any of its agents or representatives or others seeking to assist them in the sale and delivery of the same.”

17. The City of Dallas filed a motion to dismiss the Brown suit in the Federal Court and at a preliminary hearing in the Federal Court James P. Donovan, as attorney for the plaintiffs therein, filed a motion to dismiss certain persons as plaintiffs, but to add new party-plaintiffs. The Federal Judge granted the motion to dismiss certain plaintiffs from the suit but before permitting the new parties to intervene in that suit required assurance that the parties seeking to intervene had been warned that to actively prosecute said suit might be a contempt of this court and the orders theretofore issued by it. Attorney James P. Donovan stated to the Federal Judge that the matter had been brought to the attention of the new parties and they had been fully warned of the possible consequences of their action.

18. In spite of the Writ of Prohibition issued by this Court, attorney James P. Donovan, representing the parties in the Brown case in the Federal Court, filed an answer to the City’s motion to dismiss the Brown case and actively and vigorously opposed the motion to dismiss. The basis of the attorney’s opposition to such motion was that his clients had not had their day in court and that the order of this court and the order of the Supreme Court of Texas were invalid. On May 2, 1963 the Judge of the United States District Court ordered the Brown case dismissed and Respondent Donovan noted exception to such action.

19. Following the issuance of the Writ of Prohibition by this Court, attorney James P. Donovan, on behalf of himself and a number of the Respondents herein, filed Cause No. CA-3-63-120 Civil in United States District Court styled James P. Donovan, et al. v. The Supreme Court of Texas, et al., in which suit it was prayed that the Federal Court grant an injunction against the Court of Civil Appeals and the Supreme Court of Texas restraining the enforcement of the writs theretofore issued by this court. On May 9, 1963 the Judge of the United States District Court granted motion to dismiss this cause, to which action an exception was duly noted by Donovan.

20.The present motion for contempt filed by the City of Dallas in this Court alleges that respondents, and each of them, have been guilty of contempt of this Court by violating the Writ of Prohibition and injunction heretofore issued by us in the following respects:

(a) In failing to request the Federal Court to dismiss the case of Daniel C. Brown, et al., v. City of Dallas, et al., No. 9276 pending in the United States District Court;
(b) By filing motion contesting the dismissal of said Brown suit in the Federal Court;
(c) That the respondents who made themselves new parties in the Federal Court case, following the issuance of our Writ of Prohibition and injunction, were guilty of contempt in knowingly aiding and abetting the further prosecution of said suit in the Federal Court;
(d) In appearing and vigorously and actively opposing and contesting the motion to dismiss the Brown suit in the Federal Court;
(e) By taking exceptions to the order of the Federal Court in dismissing the Brown suit;
(f) By filing cause No. CA-3-63-120 Civil styled James P. Donovan, et al., v. Supreme Court of Texas, et al., in the United States District Court which said suit seeks to interfere with the enforcement of the Writ of Prohibition issued by this Court.

The hearing on the motion for contempt came on to be heard by this Court on May 13, 1963. Motion for continuance filed by James P. Donovan, for himself and respondents, was sustained and the matter reset for May 20, 1963. On said date, May 20, 1963 the matter came on for hearing and James P. Donovan and all of the respondents who had been served with notice to appear, did appear, and announced ready for the hearing on the motion for contempt. Respondents’ motion to quash the affidavit for contempt was overruled and the Court proceeded to hear testimony from both petitioners and respondents. The evidence of petitioners consisted of documentary proof relating to the matter heretofore recited and testimony of an Assistant City Attorney. The only witness who testified for respondents was attorney James P. Donovan who candidly stated that the actions and conduct on the part of all the respondents were taken upon his advice that the orders of the Supreme Court of Texas and of this Court were invalid.

The testimony presented upon this hearing abundantly demonstrates that all of the respondents are guilty of contempt of this Court. Respondents have been shown to have knowingly violated the orders of this Court which were issued in pursuance to a mandate of the Supreme Court of Texas. Such wilfull disobedience of a valid order of a court constitutes contempt which cannot be tolerated. Respondents’ contention that they have not been afforded their day in court is entirely without merit. As demonstrated by the foregoing facts, respondents have had their full day in court. The issues have been presented to twenty-three judges comprising every court from the trial court to the United States Supreme Court and these judges have, without a single dissent, decided the issues against respondents. Over a period of two years respondents have had the benefit of every judicial hearing available in both State and Federal Courts. The issues having been adjudicated against them, they must necessarily recognize the end of litigation. There must be an end to litigation else there would be no purpose of beginning litigation.

If orders of this or any other court are to be ignored and disobeyed merely because some attorney says that they are invalid then our system of jurisprudence will fall and anarchy and chaos will result. We will have fallen upon evil days, indeed, when an attorney arrogates unto himself the function to declare invalid mandates of a court of law. Our Government of law, and not of men, does not tolerate such usurpation of power by any person and especially by an officer of the court sworn to protect and defend the constitution and laws of the nation and of this State.

During the hearing of this matter the respondent, attorney James P. Donovan, made many irresponsible statements concerning our courts which clearly demonstrate his attitude. For example he assailed the judgment of the Supreme Court of Texas contending that “it isn’t worth, in our opinion, the paper it was written on.” At another point he said, in effect, that he and his clients were not in contempt of this Court; that they were probably in contempt of the Supreme Court of Texas but they were not being tried for that. He admitted that, in response to an inquiry from the United States District Judge, that he had advised his clients that they were subjecting themselves to a contempt action by proceeding in the Federal Court case. The whole record illustrates one fact clearly, that is, that the respondents, with full knowledge of the facts, followed attorney Donovan’s advice and counsel to the effect that orders of the court were invalid and should be disobeyed or ignored.

Art. 1826, Vernon’s Ann.Civ.St. specifically empowers this Court to punish any person for a contempt of this Court, not to exceed $1,000 fine or imprisonment not to exceed twenty days. As to the individual respondents we have considered the mitigating facts and circumstances, and especially that they were advised by attorney Donovan to perform the acts complained of, and have therefore set their punishment at $200 fine. However, as to the respondent Donovan, it is our judgment that he should be assessed the maximum jail sentence of twenty days in the County Jail.

Subsequent to the entry of our original judgment several of the respondents appeared and presented additional mitigating or extenuating circumstances, and as a result thereof we have amended our order, as shown by the record herein, completely exonerating twenty-six of the respondents and altering and modifying the sentence of others.

All respondents, with exceptions heretofore noted, are found guilty of contempt and assessed punishment as shown by the judgment of this Court.

      . It is of interest to note other irresponsible and unlawyerlike statements made by Respondent Donovan which illustrate his general attitude towards courts. For example, he charged the Assistant City Attorney with “tampering with the Court” (referring to the Federal Court), and that he did not “believe in backdoor jurisprudence” (still referring to the United States District Court).


text:
    Ray L. CHAPPELLE, Appellant, v. Jim WOODWARD, Appellee.
    No. 14063.
    Court of Civil Appeals of Texas. Houston.
    May 30, 1963.
    Hicks, Dollahon & Wohlt, F. Warren Hicks, Houston, for appellant.
    Eastup & Kroll, Gordon J. Kroll, Houston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Jim Woodward, against appellant and his wife, Martha Chappelle, to recover damages for personal injuries resulting from a collision which occurred about 11 o’clock a. m. on October 16, 1959, between an automobile driven by Mrs. Chappelle and an automobile driven by appellee in the City of Houston at the intersection of Sandpiper and Sharpview Streets, an open intersection with no traffic control of any kind.

Appellant does not complain of the jury findings of negligence on the part of Mrs. Chappelle proximately causing the collision, but does complain of the jury findings exonerating appellee of contributory negligence. The jury found that appellee, who was driving in a westerly direction on Sharpview, did not fail to keep a proper lookout as he approached the intersection for vehicles approaching such intersection from the north on Sandpiper; that he was not driving at a negligent rate of speed; and that he was not negligent in failing to make such application of his brakes as would have been made by a person of ordinary prudence in the exercise of ordinary care. In his first 9 Points appellant asserts that there is no evidence and also insufficient evidence to support such findings and that the same are so against the great weight and preponderance of the evidence as to be manifestly wrong.

The evidence shows that when appellee was about 30 feet from the intersection of said streets he looked to his right and saw Mrs. Chappelle’s automobile approaching the intersection from the north on Sandpiper. He variously estimated her distance from the intersection at such time as being “75 feet, not less. It could have been more than 60 feet.” He further testified that she was twice as far or more from the intersection as he was; that she could have been more than 60 to 75 feet back; and that she was half a block away, a great distance back. The investigating police officer testified that appellee told him Mrs. Chappelle was about a quarter or a half a block back when he first saw her. Appellant testified that he had been driving 20 miles per hour but he applied his brakes and slowed down to about 15 miles per hour as he entered the intersection because there were children who played in the streets. There is no evidence that he was driving in excess of 20 miles per hour. The speed limit was 30 miles per hour.

Mrs. Chappelle testified that she thought she was driving 35 miles per hour; that she didn’t see appellee until he was in the intersection directly in front of her, and at that time she was not in the intersection but about two seconds away from it; that she was six months pregnant at the time and sort of had her head in the clouds and was oblivious to what was going on around her; that from the time she had left her home some seven miles away, she had been driving in a dazed and oblivious condition; that she was sorry but just didn’t see appellee; that she had paid a fine for negligent collision; and that she didn’t apply her brakes at all and was traveling 35 miles per hour when she struck appellee’s car.

The evidence shows that there were no obstructions which kept appellee from seeing Mrs. Chappelle’s car as he said he did, or that would have kept her from seeing his car. The collision occurred approximately in the center of the northwest quadrant of the intersection, about 4 feet from the north curb line and 7 feet from the west curb line. This indicates that appellee was more than half way across the intersection before his car was struck broadside. It was a clear, dry day. Both streets were paved and were approximately. 26 feet in width.

Appellee testified that as he approached the intersection, he looked to his right and saw Mrs. Chappelle’s car at such distance that the only impression he formed was that he had a clear intersection. He then looked or “cleared” his left side, and then glanced back and Mrs. Chappelle was right at his door and rammed into him. There is nothing to show that he was not keeping a proper lookout or that he was driving at an improper rate of speed.

There is some confusion in appellee’s testimony with respect to whether he realized the speed at which Mrs. Chappelle was driving when he looked to the right and first saw her car. On his deposition he testified that Mrs. Chappelle’s car -syas moving but that he did not form any estimate as to the speed of the car; that he was going IS miles per hour and he supposed she was going much faster than that. He was then asked:

“Q. You didn’t form any impression that she was?
“A. No. The only impression that I formed was that I knew that I had a clear intersection. She was going at a tremendous speed.”

He was then asked:

“Q. You did only have that split second impression of her before the inpact?
“A. Yes. I remember flashing through my mind a terrific speed she must have been making.”

At the trial appellee testified on cross-examination, to questions by appellant’s counsel :

“Q. All right, you said when you saw Mrs. Chappelle here (indicating) she was coming at a terrific speed, wasn’t she?
“A. Looked that way.
“Q. You realized that she was coming at a terrific speed?
“A. Looked that way.
“Q. How fast do you estimate she was traveling?
“A. Oh, in excess of 35 to 40 miles per hour.
“Q. That’s what you mean by a terrific rate of speed?
“A. Yes, sir.
“Q. You estimate she was going how fast — 35 to 40?
“A. 35 to 40.”

On cross-examination he also testified as follows:

“Q. That’s the two times you saw her car ?
“A. Yes, sir.
“Q. One thing that flashed through your mind when you saw her back up there half a block away she was traveling at a terrific speed ?
“A. I thought so.
“Q. That’s what flashed through your mind?
“A. Yes, sir — I beg your pardon— what do you mean by when I saw her way back up there at a terrific speed — I didn’t understand you there. If I might add, when I saw Mrs. Chappelle’s car back up there when I cleared to the right I knew and felt that I had the right — after clearing to the left — to cross that intersection or I could have waited for whatever she did, if I had come to a stop.
* * * * * *
“Q. You did have only that split second impression of her before the impact ?
“A. Yes. I remember flashing through my mind a terrific speed she must have been making.
“Q. That is the impression you got just as you entered that intersection ?
“A. Just as she hit me.
“Q. You didn’t get the impression of the terrific speed she was making before that time?
“A. No, sir.
“Q. When did you get the impression of the terrific speed?
"A. When she hit me.”

While the testimony of appellee seems somewhat conflicting and confusing as to when he arrived at his conclusion that Mrs. Chappelle must have been going at a terrific speed, we think his entire testimony given on his deposition and at the trial on cross-examination shows that it first flashed across his mind in the split second before the impact that she must have been going at a terrific speed. In any event, there is ample evidence from which the jury could have so found in answering the contributory negligence issues.

We have carefully read the statement of facts, and have concluded that we cannot say that the findings of the jury with respect to either lookout, speed, or application of brakes on the part of ap-pellee are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. There is ample evidence to support the jury findings to each of such issues. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Tudor v. Tudor, 1958, 158 Tex. 559, 314 S.W.2d 793.

In his next Points, appellant asserts that there is no evidence, also insufficient evidence to support the jury’s finding of damages sustained by appellee as the result of his injuries, and that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly wrong. We do not agree.

The jury awarded appellee $9,000.00 for his personal injuries and $1,037.50 for reasonable medical bills incurred as a direct and proximate result of the injuries. We think it unnecessary to recite at length the medical testimony in regard to appel-lee’s injuries. It will suffice to say that Dr. Behr testified that appellee received four fractured ribs, a brain concussion, and an acute flexion-extension injury to the cervical and dorsal spine in addition to numerous contusions, abrasions and lacerations. X-rays taken on different occasions revealed the loss of space between the fifth and sixth cervical vertebrae and an increase in the loss of space indicating degeneration of the intervertebral disk. The doctor testified that in reasonable medical probability such condition was caused by the collision, and that appellee would have further symptoms and pain attributable to such condition. He also testified that appellee was still suffering from the results of his injuries at the time of the trial, and that he would continue to suffer pain in the future and would need future medical treatment, and though he had made a remarkable recovery he would have some permanent disability as a result of the collision.

Appellee testified that he was rendered unconscious by the collision; that his dentures were broken into pieces, cutting the inside of his mouth; that he was taken by ambulance to Hermann Hospital where he was confined from Friday until Sunday; that a place in his back was sewn up at the hospital; that he was confined to bed at home for a week to ten days following his release from the hospital; that in addition to physical therapy, traction was applied to his head and neck for two or three hours a day for about a year or so; that he had worn a neck collar for about two years off and on and still occasionally used it; and that the injury still bothered him and slowed him down. He further testified that for the three years before the collision he averaged $7,000.00 to $8,-000.00 per year and that in the first year after the accident he earned only $6,500.00, and in the second year only $4,300.00

It is true that Dr. Behr testified that the physical examination made by him disclosed that appellee had an arthritic condition in the spine and a pre-existing condition which he described as Marie Struempell’s Disease. Appellee testified that he had never had any treatment for any prior sickness or disease other than routine things like virus, and had had no prior injury except a broken arm when he fell while on ice skates.

Upen a careful consideration of all the evidence, we have concluded that the finding of the jury as to damages sustained by appellee and the amount thereof is supported by sufficient evidence of probative force and is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, supra; Mikell v. La Beth, Tex.Civ.App., 344 S.W.2d 702, ref., n. r. e., and authorities cited therein.

Judgment affirmed.


author: STEPHENSON, Justice.

text:
    IMPLEMENT DEALERS MUTUAL INS. CO., Appellant, v. Harry CASTLEBERRY, Appellee.
    No. 6618.
    Court of Civil Appeals of Texas. Beaumont.
    May 16, 1963.
    Rehearing Denied June 12, 1963.

      Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Dies, Anderson & Dies, Lufkin, for ap-pellee.
   STEPHENSON, Justice.

This is a suit to recover upon a fire insurance policy after the premises were destroyed by fire. The frame building was insured for $10,000.00 and the contents for $2,500.00. The property insured was located in the City of Lufkin, and was described in the policy as “owner-dwelling”. It was a two and a half, or three story house containing: one 2-room apartment, 5 bedrooms, a lobby and a reception room on the first floor; four 2-bedroom apartments, a bedroom and a lobby on the second floor; and, three 1-room apartments, a bedroom and a lobby on the third floor. Judgment was rendered for plaintiff for the full amount of the policy based upon a jury verdict. The parties will be designated here as they were in the trial court.

The defendant’s answer contained the following:

"VI.
“Defendant alleges that the policy of insurance upon its face shows the dwelling described therein as being occupied as an owner dwelling. In truth and in fact, during the entire time that the policy was in force, the building was occupied as a boarding house, rooming house or apartment. The rate which should have been charged according to the rules and regulations promulgated by the State Board of Insurance, pursuant to statutory authority, had the correct occupancy been stated on the face of the policy, would have been substantially higher than was actually charged for an owner occupied dwelling. In this connection, Defendant alleges that its agents, servants or employees were not in fact' aware of the true and actual occupancy of the building. Defendant further alleges that the statement of occupancy upon the face of the policy is a war-
ranty. That the difference in occupancy is material.
“Defendant alleges that its policy of insurance provides in part as follows :
“ ‘Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring * * * (a) while the hazard is increased by any means within the knowledge and control of the insured, provided such increase in hazard is not usual and incidental to the occupancy as hereon described; or * * * (e) while any other stipulation or condition of this policy is being violated.’
“Defendant says that the above provisions apply to the fact situation here presented. Therefore, there is no liability.”
“VIII.
“Defendant further says that its policy of insurance provides in part as follows:
‘This policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material factor circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.’
“Defendant alleges that because of the misrepresentation applicable to the occupancy of the building, the above provision came into effect, was material and should be applied.”

The evidence showed policies of insurance had been written upon these premises through the office of Woodrow Scott, insurance agent, for many years. Scott had written policies of insurance on these premises while plaintiff’s mother was alive and resided there. At that time the policies described the property as “owner-dwelling”. After the death of plaintiff’s mother, in 1953, the policy of insurance showed plaintiff to be the administrator of his mother’s estate and again described the premises as “owner-dwelling”. The last policy written in the name of plaintiff, and the one here sued upon, continued to designate the property as “owner-dwelling”. This was done even though Scott knew the plaintiff did not reside on these premises. The testimony shows unequivocally that plaintiff did not cause the property to be so designated, did not misrepresent the use of the premises, did not tell Scott anything untrue about such use, and did not fail to answer any questions asked by Scott. Scott admitted he did not consult with plaintiff as to what kind of policy he should have, but wrote him a policy and carried it to his house. The house to which he delivered the policy to plaintiff was not the premises insured. On cross-examination, Scott testified as follows:

“Q. Mr. Scott, when people buy insurance from you — and I don’t say this with any reflection whatsoever— they rely on you as the agent to issue them the policy that they should have, do they not ?
“A. Correct.
“Q. And you are supposed to be and you are the specialist as far as knowing what kind of policy ought to be issued, are you not?
“A. Yes.
“Q. If this policy was issued as an owner-dwelling, the mistake was yours and your secretary’s and not Mr. Castleberry’s ?
“A. If there was a mistake in issuing the policy, it was either my fault or my secretary’s fault, and I would say it was my fault.”

The defendant proved the insured premises were being used as a rooming house at the time of the fire, and that the premium rate for insurance on a “rooming house” was higher than the rate charged plaintiff.

The jury found: That Woodrow Scott knew the use being made of the premises. That plaintiff told Woodrow Scott what use was being made of the premises. That plaintiff truthfully answered any inquiries made by Woodrow Scott as to the use of the premises. That the mistake on the policy as to the use of the premises was not due to any statement made by plaintiff. That plaintiff relied upon Woodrow Scott to correctly prepare the insurance policy. That plaintiff did not know of the mistake in the policy describing the use of the premises until after the fire.

Appellant contends first that there was no evidence to support the finding of the jury that Woodrow Scott knew the use being made of the premises. This is a question of law to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence. A review of the record from this standpoint reveals that Woodrow Scott was well acquainted with the owner and his actual residence, and also with the occupancy of the house at the time of the issuance of the policy and for many years before. The plaintiff testified in part, as follows:

“ * * * after I explained to Mr. Scott my interest in raising the insurance on it, he told me that he didn’t think it would be necessary, since there were so many people in the building going and coming at all hours of the day and night, that if a fire started, one of them would notice it, and it wouldn’t be a total loss, anyway.”
“Mr. Scott knew that I had the building leased to other parties.”
“Q. Had Mr. Scott ever been by this building?
“A. Many times.
“Q. Had he ever been in it?
“A. Yes.
“Q. Did you and he discuss on this occasion in your home in June of 1961 the fact that it was being leased to other tenants? Was that discussed freely between the two of you?
“A. Yes.”
“Q. Did you ever tell Woodrow Scott that you were living in this building on 506 North Angelina Street?
“A. I did not. Woodrow Scott knew and positively knew — it is not hearsay — he knew that I wasn’t living in the building.
“Q. Well, how did he happen to come to this house on Marcus Street to discuss issuing this policy?
“A. Because he knew — and it is not hearsay — he knew that I lived there.
“Q. All right. Did he know where this building was on Marcus Street that was later insured — I mean, on North Angelina Street?
“A. He did.
“Q. Had he been in that building?
“A. He had.
“Q. Did he know that you and Betsy Rose and your children were not living in that building ?
“A. He did.
“Q. Did you tell him on that occasion and on other occasions it was being rented to tenants ?
“A. I did.”

Woodrow Scott testified on cross examination :

“Q. Mr. Scott, at the time you issued the policy which is made the basis of this lawsuit, of course, you knew that the building in question was being rented to various tenants, did you not?
“A. I knew it was a tenant-dwelling.
“Q. Well, how did you know that?
“A. Well, I knew that Mrs. Castle-berry was dead and Mr. Castleberry was dead, and I knew that Harry wasn’t living there.
“Q. Did you know somebody was living there?
“A. Yes.
“Q. How many people did you think were living there?
“A. Well, I thought it probably was a duplex.
“Q. A 25-room house was a duplex?
“A. That’s probably what I thought, that it was a duplex.
“Q. You had been in the house, hadn’t you ?
“A. Yes, I had been in the house some ten years before.
“Q. Well, you knew that it was a very large house ?
“A. I knew it was a very large house.
“Q. Had 20 or 25 rooms?
“A. Well, I wouldn’t say that my mind dwelt on 20 or 25, Martin, I knew it was a large,- house.
“Q. Let me ask you again — you knew that Harry wasn’t living there?
“A. Correct.”

All of this testimony supports the finding of the jury.

Appellant next contends there was insufficient evidence to support such finding of the jury, and the answer was against the great weight and preponderance of the evidence. In determining this point, we must consider all of the evidence, both favorable to and contrary to the verdict. After considering the whole record, we conclude that the verdict is not SO' against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellant has two points of error in reference to leading questions. The first of these is the court erred in overruling objections to repeated and frequent leading questions. The second is the court erred in overruling defendant’s oral motion that plaintiff’s counsel be instructed to cease and desist from asking leading questions. In reading through the record there are many objections made by counsel for defendant to questions asked by counsel for plaintiff, on the ground that the question was leading. For example, plaintiff’s counsel asked the plaintiff:

“Do you know Woodrow Scott?” and counsel for defendant objected: “That is a leading question, if your Honor please.”

Later, after many such objections had been made, counsel for defendant asked the court to instruct counsel for plaintiff not to continually ask leading and sugges» tive questions.

Counsel for defendant argues that a question is leading if it may be answered “yes” or “no”. In McCormick & Ray on Evidence Second Edition, at page 451 it is written:

“Although many varying definitions are found the essential element neces-ary to render the question improper is that it suggest the specific answer desired.”

At page 452, it is said:

“The Texas Courts have taken the sound position that the mere fact that it may be answered ‘yes’ or ‘no’ will not render the question improper unless it suggests which answer is desired.”

At page 453, it is written:

“A question which assumes the truth of a fact in issue, so that the answer may admit that fact is a leading question.”

These points are overruled. The questions propounded were not leading, and these points of error are too general for this court to consider.

Defendant contends the trial court erred in entering judgment for plaintiff to recover for the loss of the household goods on the ground that there was no evidence of ownership. The record reveals ownership of this personal property was not contested during the course of the trial. Plaintiff testified at great length as to the nature and value of this personal property, but he was not asked by counsel for either party about ownership. The evidence did reflect that plaintiff had acquired the premises from his mother by inheritance. No issue was submitted to the jury as to ownership of the real estate, and no complaint was made in this regard. No exception or objection was made to the court’s charge because of the failure to submit an issue as to ownership, and no issue on this subject was requested. It has been held that mere possession of property covered by an insurance policy is prima facie evidence of ownership thereof in an action on the policy. Mutual Fire & Automobile Ins. Co. v. Muckelroy, Tex.Civ.App., 236 S.W.2d 555. Possession alone raises a rebuttable presumption of ownership to real and personal property. There was no evidence to the contrary. The trial court did not er.r in granting judgment for plaintiff to recover for the loss of their personal property.

During the voir dire examination of the jury panel, counsel for defendant asked the general question as to whether counsel for plaintiff had ever represented any member of the jury panel. None of the jurors held up their hand or answered in the affirmative. Martin Dies, Jr., conducted the examination of the jurors for plaintiff and upon completion, retired to another room with Clark Anderson, another member of the firm of Dies, Anderson and Dies, to strike the list. The name of one juror, Mrs. Cora Freeman, was checked in the office of the District Clerk and it was found that Clark Anderson had represented her in the past. Clark Anderson conveyed this information to counsel for defendant, and made an offer before the court to disqualify Mrs. Cora Freeman. At the time of this offer, counsel for defendant had struck his list and passed it to the District Clerk. However, at such time no one had looked at the list to see which jurors had been struck, and counsel for plaintiff had not turned in his list. Counsel for defendant did not accept this offer, indicating he did not want to have to examine another juror, and made a motion for a mistrial. This motion was denied.

The examination of a juror on his voir dire has a two-fold purpose. First, to determine whether a challenge for cause exists, and then to ascertain whether it is wise and expedient to exercise a peremptory challenge. It is important to determine whether or not the attorney-client relationship has existed between the attorneys and the jurors. It is the duty of a juror to make full and truthful answers to the questions asked, and to neither falsely state a fact, nor conceal any material information. In this instance counsel for defendant was entitled to know the juror, Mrs. Cora Freeman, had been represented by Clark Anderson. However, in this case the information came from the attorney, rather than the juror, as it does in many instances, and counsel for defendant knew of the relationship before the selection of the jury had been completed, and the jury for this case sworn.

It has been held that a peremptory challenge may be exercised up until the time jury is sworn. Herrin Transportation Co. v. Peterson, 216 S.W.2d 245. There was no indication that the other eleven jurors were not acceptable to defendant. Mrs. Cora Freeman could have been excused by the court and another juror interrogated by the attorneys. The trial court was not obligated under these circumstances to grant a mistrial and begin anew the selection of the jury from a different panel. We hold the failure of counsel to agree to disqualify the juror before the jury had been sworn was a waiver of this right to complain of the court’s action in denying the motion for a mistrial.

We find no merit to the other points of error.

Affirmed.