text:
    FABICK BROTHERS EQUIPMENT COMPANY, a corporation, Plaintiff-Appellant, v. James H. LEROUX, Defendant-Respondent.
    No. 8183.
    Springfield Court of Appeals. Missouri.
    Feb. 14, 1964.
    Motion for Rehearing or Transfer to Supreme Court Overruled March 5, 1964.

      Hyde, Purcell & Wilhoit, George R. Wil-hoit, Jr., Poplar Bluff, for plaintiff-appellant.
    Byron Kearby, Poplar Bluff, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment based on the warranty of a Cat which couldn’t hold its water.

Plaintiff Fabick Brothers Equipment Company sold to defendant James H. Le-roux “one used Cat.” (we understand this is the common, abbreviated, and popular term for a caterpillar tractor) “W/Hyd Dozer,” with equipment including “W/Cat #46 Hyd. Controls” and a “Cat. 6A Angle dozer,” at a price of $12,412.80. Taken in exchange was a “Farmall M. Tractor” and “Henry Back Hoe” at an agreed price of $3,500. Leroux executed an installment note (including time payment charges of $1,069.44) in the amount of $9,982.24. Fab-ick Brothers Equipment then sold the note “without recourse” to Fabick Employees’ Profit Sharing Plan. In time Fabick Employees’ etc. (assignee) repossessed the Cat and dozer, sold it, and sued for deficiency. At the same time, Fabick Brothers Equipment (seller) brought suit against Leroux for the sum of $507.12, which sum it claimed represented the amount of an unpaid check given it by Leroux. It alleged that $500 of said amount had been paid over to Fabick Employees’ etc., assignee, on the note, and the $7.12 was for some service charge on the machine. In the last mentioned case, Leroux answered, admitting that he owed the $7.12, and counterclaimed for breach of warranty in the sale of the Cat. Both cases were tried to the court on the same evidence. Judgment was rendered in favor of Fabick Employees’ etc., as-signee, on the deficiency in the sum of $1,-671.90. On the suit by Fabick Brothers, seller, judgment was rendered for plaintiff on its claim in the sum of $7.12 and in favor of defendant on his counterclaim in the amount of $2,500. Fabick Brothers appeals from this last mentioned judgment.

Defendant was in the business of moving dirt. He had been using a tractor with a back hoe machine but was not familiar with a caterpillar dozer of the type here involved. He dealt with a Mr. Hale, a salesman at plaintiff’s Sikeston shop building. He testified that Hale showed him the machine. It was newly painted and Hale told him it was rebuilt, reconditioned, “and just had been through it and done everything up in perfect shape”; that it was “reconditioned throughout,” in “good condition, ready to work and guaranteed to work.” “It was guaranteed for one hundred and fifty working hours.” Subsequent to that conversation, defendant signed a printed form purchase order, which described the equipment and thereafter recited that “Used Equipment sold ‘AS IS’ unless specifically warranted under Paragraph 7 on the Reverse side hereof.” Paragraph seven on the reverse side contained disclaimers of liability for personal injuries or for any damage resulting from “any alleged failure of said machine to operate, nor for any implied warranties. Any used or second hand equipment included in this order is sold without-.any warranty zvhatsoever, express or implied (except that the seller zvarrants title), unless said warranty is set forth in full in the space next following and is initialed by both of the parties hereto.” In the space below was the following:

“Sold with 150 hr. warranty. Chas. Hale
James H. Leroux”

In further paragraphs was set forth a warranty expressly limited to new machines. This new machine warranty called for replacement of parts defective in material or workmanship, a manufacturer’s warranty. The order was signed on June 19, 1958, by “James H. Leroux, Purchaser,” and “Fab-ick Bros. Equipment Co. By: Jos. G. Fabick, Sales Manager.”

Delivery was made about June 24. Defendant hired an experienced Cat operator and commenced operation leveling ground and digging ditches about June 25 or 26. After the first two days’ operation, trouble began. The Cat developed an elephantine thirst. It would heat up and the driver would have to go to water and refill the radiator. This happened several times a day and with increasing frequency. Sometimes it required as much as four or five gallons to refill the radiator. Within a few days, Leroux complained to the seller, and plaintiff’s mechanics came to work on it. The first time the mechanic worked on it for two days. The machine was, of course, “down” or out of service during that period. Defendant says that after it was “patched up” it ran for another week, but from then on it was a process of working a while, making trips to a water course or well and refilling the radiator, and then “down again” while a mechanic or mechanics from Fabick Brothers worked on it. The equipment was on the first job for four days. At the second job the tractor was “down” three or four times and some two or three days each time. On this job the mechanics for plaintiff pulled the “head” (whatever that is) off it and performed some operation, whether exploratory or correctional we do not know since we are not familiar with mechanical terms. Defendant testified that “we got to the place where we was spending as much time running after water on that job as we were doing the job.”

At the time defendant made his first complaint and plaintiff’s mechanic attempted to rectify the trouble, the machine had operated about forty hours. It was on the second job when they first “pulled the head.” It had not then gone one hundred fifty hours. After that, and on other jobs, the difficulty continued, and plaintiff’s mechanics continued to work on it. According to defendant the machine was, at the beginning, “down” about one-third of the time and eventually got to where it was down about one-half of the time. Nevertheless, defendant continued, because he had “work to go to,” and the process of working, going to water and refilling the radiator, and shutting down for repairs continued until the operator quit. This operator testified, “I couldn’t survive on the amount of work I was getting, and I had to quit Mr. Leroux.” The operator’s work records correspond roughly with defendant’s testimony. They reflect frequent occasions when the machine was not working and when it worked only parts of days. These time records, however, include the time driving to water and refilling the radiator, because the operator was paid for this time, although defendant could not charge the customers for it. This witness testified as an experienced heavy machine operator that under normal conditions a rebuilt machine in good working order would require no “down” time during the first one hundred fifty hours except a normal thirty minutes per day spent in normal servicing.

Finally, apparently in the latter part of September, defendant pulled the machine into a D-X service station and a Mr. Davis (plaintiff’s witness) came out again and pulled the head off and replaced it. Defendant says this was the third head. Davis testified, “That was when we finally detected what was causing the water leakage.” Q. “And you finally determined on October 2nd that that was what the trouble was, that there was something wrong with the head, is that the reason it used water, is that right ?” A. “That is right.” The witness said when he took the old head off he “found it was defective in a certain way, and we put another head on it in place of it.” He said he had taken the head off before but “we didn’t detect that defection then.” Defendant testified that on this last occasion he told Davis, “I will go ahead and tell them to come and get it, and I am done with it,” and that Davis said, “If I had been you, I would have done it a long time ago.” Davis denied making this last statement. That night defendant called plaintiff and the tractor was repossessed shortly thereafter.

On July 24, defendant paid plaintiff a five-hundred-dollar installment on the note. He said plaintiff had been working on the machine and he paid it because he thought “they” would fix it. They' said they would fix it. At some time not clear, he told plaintiff, “Well, I can’t pay for it with you working on it all the time.”

On September 15, defendant gave the check for $507.12 which is the subject of plaintiff’s claim. At the time this second payment was made more than one hundred fifty working hours had expired. He testified that at that time Mr. Hale told him, “they would fix it if it cost them a million dollars.” “I still had in my mind I was going to keep it if they would get it to where it would work, and they kept working on it.” The $507.12 check was refused payment because of insufficient funds. Subsequently defendant stopped payment.

Appellant contends that evidence of statements made by the salesman Hale in regard to the condition of the machine was incompetent because (a) the verbal statements were merged into the subsequent written purchase order and (b) they tended to vary or alter the written terms of such order.

Two of the exceptions to the parol evidence rule are that verbal testimony is received, not to add to, contradict, oppose, or change the terms, but to explain and clarify the written agreement and thus establish the actual meaning (a) when it is ambiguous and (b) where the writing shows on its face that it is incomplete and does not set forth the full agreement. In those circumstances parol testimony (if not repugnant to the express terms of the writing) is competent to show the real intention of the parties. In reality, a writing which shows on its face that it does not embody the whole contract is, in that sense, ambiguous.

The writing stated “sold under 150 hr. warranty.” But warranty to do what and against what? To run at sixty miles per hour? To fly? Not to use more than two gallons of fuel per day? Not to break down ? Or what ? Obviously the writing is incomplete and does not cover the whole of the actual agreement. It cannot be said that the manufacturer’s warranty (in later paragraphs) as to new equipment was applicable, because those paragraphs are expressly restricted and applicable to new machinery only; but even if it could logically be argued that the contract was reasonably susceptible of the interpretation that the new equipment warranty might be applicable, the two interpretations would create an ambiguity which would require evidence to clarify. We conclude, therefore, that the oral declarations of representation and warranty were competent to show what the warranty was.

It is also contended that the statements of sales representative Hale were not competent because there was no showing that he had authority to make any warranty. Laying aside any question of implied authority of a salesman in a situation such as this, we note that plaintiff’s office manager, Henry Switala, testified that the manager, Joe Fabick, had the supervisory power in respect to warranties. The clause containing reference to the 150-hour warranty was signed by Hale, but the whole agreement which included this reference was signed by Fabick as manager. The manager thus was not only a party to the contract, but also ratified the warranty expressed by Hale.

We believe that the common sense interpretation of the warranty is that the tractor was rebuilt and in good working •condition and would furnish the normal service to be expected of such a machine without breakdown due to defective parts or workmanship for one hundred fifty working hours. This seems to have been the interpretation of the parties, since the plaintiff continued to attempt (without charge except for one $7.12 item) to make repairs and get the machine to run normally even after the one hundred fifty hours had expired.

In its argument appellant appears to contend that the warranty expired because the Cat had three hundred hours on its meter when repossessed, more than the one hundred fifty to which the warranty was limited. The evidence justified the conclusion of the court that the machine had within it “the seeds of defect” when it was sold. Perry v. Van Matre, 176 Mo.App. 100, 161 S.W. 643, 648. Therefore, the warranty was breached when the sale was made. The defendant could have retained the machine and recovered either affirmatively or by way of defense for the difference in actual value and value as represented. Nor can defendant be held to have waived the breach. The undisputed evidence is that he made repeated complaint as to the defect after the tractor had gone forty working hours and that thereafter and before one hundred fifty hours had gone the plaintiff had commenced working on it in an endeavor to remedy the defect, even to the extent of “pulling the head.” The conclusion to be drawn is that defendant had work or use for the machine; that he was anxious to retain it if it could be made to work; and that the plaintiff was repeatedly trying to make it fulfill the requirements of the warranty. Under such circumstances, we think plaintiff cannot say that he waited too long before he “told them to come and get it.” Compare the conduct of the parties in Green v. Cooke Sales and Service, supra, Mo.App., 284 S.W.2d 880.

The judgment is affirmed.

STONE and HOGAN, JJ., concur.

      . All emphasis is our own.

      . Fisher v. Miceli, Mo., 291 S.W.2d 845 (5); Baptiste Tent & Awning Co. v. Uhri, Mo.App., 129 S.W.2d 9; Giraldin Bros. Real Estate Co. v. Stiansen, Mo.App., 315 S.W.2d 636(3); Willson v. Chicago Bonding & Surety Co., Mo., 214 S.W. 371(3); Securities Inv. Co. of St. Louis v. International Shoe Co., Mo.App., 5 S.W.2d 682.

      . Humana Co. v. Hughes, Mo.App., 213 S.W. 515; Francis v. Saleeby, Mo.App., 282 S.W.2d 167, 169; Goodspeed v. Grand Nat. Bank, Mo.App., 46 S.W.2d 913; Simrall v. American Multigraph Sales Co., 172 Mo.App. 384, 158 S.W. 437(2); Charles A. Liemke Co. v. Krekeler Grocer Co., 231 Mo.App. 169, 95 S.W.2d 820.

      . Green v. Cooke Sales and Service, Mo.App., 284 S.W.2d 880; Dimick v. Noonan, Mo.App., 242 S.W.2d 599; Huddleston v. Huddleston, Mo.App., 11 S.W.2d 1065.

      . Hope Engineering & Supply Co. v. D. N. Lightfoot & Sons, Mo.App., 193 S.W. 624; Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W.2d 830; Emerson-Brantingham Implement Co. v. Simpson, 205 Mo.App. 56, 217 S.W. 559.

      .See also Kerosene Motor & Tractor Co. v. Douglass, 210 Mo.App. 481, 240 S.W. 836; Wayne Tank & Pump Co. v. Evans, Mo.App., 15 S.W.2d 895; International Harvester Co. of America v. Capps, Mo.App., 205 S.W. 252; J. I. Case Threshing Mach. Co. v. Gardner, 159 Mo.App. 274, 140 S.W. 318.


source: Caselaw Access Project

author: CALVERT, Chief Justice. STEAKLEY, Justice

license: Public Domain

text:
    H. M. HARRINGTON, Jr., Appellant, v. RAILROAD COMMISSION of Texas et al., Appellees (three cases).
    Nos. A-9702 to A-9704.
    Supreme Court of Texas.
    Jan. 29, 1964.
    Rehearing Denied March 18, 1964.

      C. K. Richards, Houghton Brownlee, Jr., Austin, for appellant.
    Waggoner Carr, Atty. Gen., Austin, Joseph Trimble, Asst. Atty. Gen., Powell, Rauhut, McGinnis, Reavley & Lochridge, Frank Douglass, Austin, with above firm. J. K. Smith, Fort Worth, for appellees.
   CALVERT, Chief Justice.

The three cases to be decided were tried together in the trial court and were submitted jointly in this court on direct appeal. The cases originated as suits in the nature of appeals to the district court by Harrington from orders of the Railroad Commission of Texas.

Harrington is one of the oil operators caught up in the East Texas “slant-hole” dragnet. Two wells drilled by him as lessee on tracts of 1.1 and 5.25 acres in 1948, and a third well drilled on a tract of 34.7 acres in 1949 in which he acquired an interest in 1960, were found by directional survey in 1962 to be deviated from the vertical to a greater extent than was authorized. By order of the Railroad Commission the three wells were ordered disconnected from pipe lines and were sealed. Thereafter, Harrington applied to the Commission for permits to redrill, straighten and correct the well bore of the existing wells, or, alternatively, to drill substitute wells. The Commission denied his applications.

By his suits Harrington seeks to set aside the three orders and to enjoin the Commission from interfering with his drilling operations. The Commission is aided in its defense of the validity of its orders by Humble Oil & Refining Company and Pan American Petroleum Corporation, inter-venors. The trial court has upheld the validity of the Commission’s orders and has denied injunctive relief. We hold that Harrington is legally entitled to the permits applied for and we grant the injunc-tive relief sought.

Although the facts in the three cases differ to some extent, decision of common questions of law will dispose of all. The salient facts in the three cases are undisputed.

All three existing wells are located along the eastern edge of the East Texas oil field, and all were drilled under permits regularly-issued by the Commission as exceptions to Rule 37 to prevent confiscation. Validity of the permits has never been questioned in legal proceedings. The well bore of each of the wells is deviated from the vertical by more than fifteen degrees and is bottomed under a lease in which Harrington owns no interest. We may assume that deviation and completion under adjoining leases was intentional. The permits for drilling the wells on the two small tracts contained “straight-hole” clauses, which provided for a hearing before the Commission before an allowable would be assigned if the well bore was deviated more than three degrees from the vertical. Upon completion of each of the two wells Harrington filed an affidavit showing a deviation of less than three degrees. Had the Commission known the true facts, an allowable would not have been assigned the wells until the excessive deviation in the well bores was corrected.

Each of the existing wells -has produced as much or more oil than was originally in place beneath the tract on which it is located, and will produce many times the original reserves if redrilled vertically and granted a normal allowable of production. However, this advantage in production is one shared by the three wells in common with other wells in the area because all are producing from a common pool and the water drive of the oil is from west to east. Developments since the wells were drilled have established that they would have been as productive, or substantially as productive, had they been drilled true to the vertical.

Determination of the issue which the parties seem to agree, in their post-submission briefs, is the true issue between them, is decisive of the cases. In their post-submission brief appellees put the heading of their argument in all three cases in this form: “THIS IS A GARDEN VARIETY. RULE 37 CASE.” In his post-submission brief appellant insists that these are not ordinary Rule 37 cases; that, on the contrary, they involve applications to redrill wells drilled long ago under Rule 37 permits. On this crucial issue we agree with appellant. But first, we must notice the reasons given by the Commission for its action on the applications to redrill.

In its order denying one of the applications the Commission gave as reasons: (1) that the lease had “produced substantial quantities of oil in violation of the rules and regulations of the Commission”; (2) that the applicant had “not shown legal justification for violating the terms of the drilling permit”; and (3) that the applicant had “failed to show the use of diligence in the drilling” of the tract. No reasons were given for denying the other two applications. For opinion purposes we will assume the reasons were the same as those given for denying the first application.

If, as reasons (1) and (2) seem to indicate, the basis for the Commission’s orders is punishment of appellant for violating the terms of his permits, or for wrongfully producing oil from beneath adjoining tracts or leases, the orders are void for want of power in the Commission so to punish. The Legislature has expressly provided the sanctions and penalties which may be imposed for violating the conservation laws or the rules, regulations and orders of the Commission promulgated thereunder.

Article 6033 requires an owner or operator of an oil or gas well to secure from the Commission a certificate showing compliance with conservation laws and conservation rules, regulations and orders of the Commission before he may secure a pipe line connection, and empowers the Commission to cancel any certificate of compliance when it appears that in the operation of the well or in the production of oil and gas such laws or rules are being violated. That sanction has been applied against appellant and his wells have been shut in for more than a year. Article 6036 authorizes the imposition of a penalty on any person violating the conservation laws or Commission rules and regulations of $1,000 for each day of violation and for each act of violation, the penalty to be recovered in a suit by the State of Texas to be prosecuted by the Attorney General. Article 6066a defines "Unlawful oil” as including oil which has been produced in this State “in violation of any law of said State or in violation of any order of the Commission”, and authorizes the seizure and forfeiture of such oil to the State. Article 1111c, Sec. 2, Vernon’s Ann. Penal Code, makes it a felony, punishable by confinement in the penitentiary for not less than two nor more than five years, knowingly to cause an officer or employee of the Commission to issue a permit relating to oil which misrepresents the true facts with respect to the oil, or to cause the issuance of such a permit with intent to defraud.

The sanctions and penalties thus expressly provided by the Legislature are exclusive, and the Commission has no power to impose different or additional sanctions or penalties of its own devising. The power is necessarily denied to the Commission by Art. 3, Vernon’s Ann.Penal Code, which provides that “no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this State”, which provision implements the design of the Penal Code declared in Article 1 to be “to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment.”

Appellees seem to suggest that the power to punish by denying the applications to redrill is conferred by Article 6036, which states that the penalty there provided, heretofore noticed, is in addition to penalties “that may be imposed by the Commission for contempt for the violation of its rules, regulations, or orders.” We do not interpret this language to mean that the Commission is empowered to devise its own penalties for unlawful conduct or 'for violations of its rules and orders. No doubt the quoted language refers to the power conferred by Article 6024 wherein the Commission is authorized “to punish for contempt or disobedience of its orders as the district court may do.” Penalties which may be imposed for contempt by the district court are specifically expressed in Article 1911, and no others may be imposed. Moreover, if the quoted language were interpreted to authorize the Commission to provide penalties differing from those provided in the statutes, we would be confronted with a grave problem of the constitutional authority of the Legislature to delegate this power. See I Am.Jur.2d 937, Administrative Law, § 127; II Am.Jur. 965, Constitutional Law, § 244; 1 Tex.Jur.2d 661, Administrative Law, § 17.

The Commission’s reason (3) for denying the permits evidently refers to a lack of diligence in drilling a straight hole. The reason was given with respect to the application for a permit to redrill the well on the 1.1 acre tract which had been drilled originally within six months of the issuance of the permit in keeping with the terms of the permit. This reason seems to be the basis of a phase of appellees’ principal argument in this court.

Appellees are not limited in their defense of the validity of the Commission’s orders to the reasons assigned by the Commission for entering them. If there is any legal basis for the orders they must be upheld, and it is immaterial that the reasons given for them are unsound. Texas Employment Commission v. Hays, Tex.Sup., 360 S.W.2d 525, 527; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84; Railroad Commission of Texas v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967, 970.

Appellees’ principal defense in this court of the validity of the orders is based upon the premise that by virtue of noncompliance with the Commission’s rules and regulations and the terms of the original permits in drilling the existing wells, appellant abandoned such permits; or, alternatively, the permits were cancelled automatically by an order of the Commission issued October 19, 1955, which provides that all Rule 37 permits not theretofore utilized would be considered cancelled if not utilized within six months. From this premise the argument is that the applications to redrill are applications for new Rule 37 permits; that to be entitled to the permits the burden was on appellant to establish that his oil would be confiscated if they were not granted; that the Commission’s orders of denial raise a presumption that appellant’s oil would not he confiscated; that appellant did not establish on the trial that the Commission’s order was not supported by substantial evidence; that, on the contrary, evidence adduced at trial establishes conclusively that as to each tract appellant has already recovered more oil than was originally in place beneath the tract, and thus that the Commission’s implied finding of no confiscation has support in substantial evidence.

If appellees’ premise were sound, the cogency of this argument would not be open to dispute; but the premise is not sound. No decided cases are cited in support of it, and logic negates it.

The two facets of the premise are bottomed on kindred theses — abandonment and non-utilization of the rights granted by the permits. The difference between the theses is that under the first the rights granted by the original permits would have been forfeited at some indefinite time by operation of law, whereas under the latter they would have been forfeited within six months of the date of the Commission’s order in 1955; but the logic of both is that misuse of the permits is the same as nonuse. This cannot he so, under either statutory law or the Commission’s own rules and regulations. If it were so, every innocent violation of the Commission’s rules and regulations governing drilling operations or of the terms of a drilling permit would work a forfeiture of rights conferred by the permit; otherwise, forfeiture would operate as a penalty which we have held the Commission has no power to impose. Utilization of a permit is effected when a well is drilled at its designated surface location.

Appellant’s permits were issued to prevent confiscation of property. The Commission had no legal right, under its own rules, to issue the permits except upon a finding that they were necessary to prevent confiscation, and whether they were necessary for that purpose is not open to question at this late hour. Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W.2d 243. There is no suggestion that the permits were procured by fraud as were the permits in Railroad Commission of Texas v. De Bardeleben, 157 Tex. 518, 305 S.W.2d 141, in which the right to permits as of the time they were issued was reconsidered and re-evaluated. Two of the permits contained stipulations that they would terminate unless drilling operations were begun within six months. The wells were drilled in both instances within the stipulated period. The third permit contained no such stipulation. This well was drilled and produced for several years before the Commission’s order of October, 1955, was entered. All were drilled at their designated surface locations. The undisputed facts establish that the rights granted by the permits were not abandoned; that, on the contrary, they were utilized with reasonable diligence through exercise of the right to drill, albeit the well bores were deviated to a greater degree than was authorized and were bottomed under adjoining leases.

We have said that the wrongful deviations did not operate to work a forfeiture of the rights granted by the permits under either statutory law or the Commission’s own rules and regulations. Pertinent here are the provisions of Article 6033, of the “straight-hole” clause, and of Statewide Rule 54.

Article 6033 provides that before any owner or operator of an oil or gas well may connect with a pipeline he must obtain from the Commission a certificate showing compliance “with the oil or gas conservation laws of the State and conservation rules, regulations and orders of the Commission.” The article then empowers the Commission to cancel a certificate of compliance when it appears that an owner or operator “has violated or is violating, in connection with the operation of said well or the production of oil or gas therefrom, any of the oil or gas conservation laws of this State or any of the rules, regulations or orders of the Commission promulgated thereunder.” The article further provides: “Upon notice from the Commission that a certificate of compliance as to any oil or gas well has been can-celled by it as herein provided, it shall be unlawful for the owner or operator of such well to produce oil or gas therefrom until a new certificate of compliance covering such well has been issued by the Commission as herein provided.”

The “straight-hole” clause made a part of two of the permits requires that an inclination survey be run for each 500 feet drilled and that a report of the information obtained by the survey, together with information with respect to whether a whipstock was used in the drilling, be filed with the Commission in the form of an affidavit by a party familiar with the facts. It provides that an allowable for the well “will not be established nor shall such well be produced prior to the filing of these data in the manner prescribed.” If the well bore is not deviated more than three degrees from the vertical and if a whipstock is not used in drilling, the clause requires the assignment of an allowable. If the deviation of the bore hole is greater than three degrees from the vertical or a whipstock is used in drilling, the clause requires that a directional survey be run and filed with the Commission showing the path traversed by the bore hole, together with a letter of explanation, whereupon the Commission will hold a hearing, with notice to offset leaseholders, to determine “whether or not the well shall be permitted to be produced.” The clause further provides that pending this hearing “no allowable shall be assigned this well nor shall it be produced.”

The Commission’s general State-wide Rule 54, regulating the deviation of wells, was adopted on March 7, 1949. By its terms it is not applicable to wells drilled before its adoption, but it throws light on the issue of abandonment and non-utilization. The Rule provides for the granting of permits to deviate under certain circumstances. Upon filing an application for a permit to drill a deviated hole, an operator is authorized to proceed to do so at his own risk; and if he fails to show good and sufficient cause for the deviation, “no permit will be granted for the production of the well.” The concluding paragraph of the Rule reads: “Any well hereafter directionally deviated from its normal course which does not conform with the provisions of these rules shall be corrected by the operator to conform to these rules, or shall be plugged and abandoned.”

The foregoing summary of the provisions of Article 6033, the “straight-hole” clause made a part of two of appellant’s permits and State-wide Rule clearly exclude the idea that valid drilling permits and the legal rights arising therefrom may become forfeited by abandonment or non-utilization merely because Commission rules and regulations or the terms of a permit are violated by excessive deviation in drilling. The statute speaks of the withholding or cancellation of a certificate of compliance and prohibits production until compliance with the laws and the Commission’s rules and regulations has been obtained and a new certificate issued, thus recognizing the right to correct non-compliance. The “straight-hole” clause speaks only of refusing to set allowables and of denying the right to produce while the well bore is deviated, thus recognizing the right to correct the excessive deviation. Rule 54, as we interpret it, expressly recognizes the right of an operator to correct an excessive deviation on penalty of having the well ordered plugged and abandoned. Drilling at an established surface location may be a condition to the right to drill, but drilling a straight hole obviously is not. Summarizing, we hold that the rights to drill granted by the three permits were not conditioned on the drilling of straight holes; that statutes, regulations and terms of the permits relating to deviation only affected appellant’s right to produce and to the fixing of his allowables; and that his rights to drill vertical holes and to produce oil therefrom were not abandoned and were not lost through excessive deviation. It follows that the applications to straighten and correct the well bores of the existing wells are not “garden variety Rule 37” cases, and the Commission was not authorized to deny the applications on the ground that they were not necessary to prevent confiscation.

Appellees’ final defense of the orders is that the Commission is authorized to refuse to permit production from the three wells until they have made up through their normal allowables all of the oil they had produced before being sealed. The fallacy in this defense is that the granting of drilling permits and the fixing of allowables are entirely separate conservation activities. See Halbouty v. Railroad Commission, Tex.Sup., 357 S.W.2d 364, and Halbouty v. Darsey, Tex.Civ.App., 326 S.W.2d 528, writ refused, N.R.E. Appellees seem to recognize this to be so, but suggest that it will avail appellant nothing to redrill if he is later denied the right to produce oil from the wells.

The only question rightfully involved in these cases is whether appellant has a legal right to redrill and straighten the well bores of the three existing wells and whether the Commission shall be enjoined from interfering with his drilling activities in doing so. We hold that appellant has a legal right to redrill and straighten the existing wells and that the Commission’s orders denying him permits to do so are unauthorized in law and therefore arbitrary. That holding disposes of the only issue in the case. However, inasmuch as it is suggested that the Commission will claim the right to refuse to permit the wells to produce until they have made up through normal allowables all past production, we give our attention to that matter to avoid further litigation.

Testimony on the trial indicates that the Commission follows a policy of requiring wells which have overproduced to make up the overproduction by thereafter producing less than their normal allowables. Under appellees’ theory if the allowables for the three wells when redrilled is the same as in the past, the wells will be shut in for the same number of producing days in the future as they have been permitted to produce in the past. This policy seems to be at odds with a 1939 opinion of the Attorney General advising the Commission that the policy was not legally authorized. We need not, and do not, undertake to resolve the difference between the Commission and the Attorney General, because in the cases before us there is no evidence of overproduction. It seems to be undisputed that, although perhaps unknown to the lessees at the time they were drilled, the wells could and would have been just as productive had the wells been drilled within authorized limits of deviation. Thus there may have been illegal production, but in the record before us there is no evidence of overproduction. Assuming the wells could and would have produced the same amount of oil if they had been properly drilled, any such shut-in as that suggested would be nothing more than an unauthorized penalty.

The judgment' of the trial court is reversed, and the Railroad Commission of Texas and its officers, agents and employees are restrained and enjoined from' interfering with appellant in redrilling and straightening to within authorized limits the well bores of the existing wells on the three tracts described in his petition.

STEAKLEY and NORVELL, JJ., dissented.

STEAKLEY, Justice

(dissenting).

I am in full agreement with the majority holding that the Railroad Commission cannot impose different or additional penalties or sanctions otherwise provided by law as punishment for unlawful acts. But this is not the problem as I view the case.

I do not agree that Harrington obtained absolute drilling rights upon the granting to him of the original drilling permits, as exceptions to Rule 37, to prevent confiscation of his minerals, or that Harrington’s rights are unaffected by his entire failure to drill and produce the wells authorized by the permits.

I assume, as does the majority opinion, that Harrington intentionally deviated the wells so as to bottom the wells under, and hence so as to produce oil from, the leases belonging to his neighbors in which he owned no interest. It is self-evident that these drilling operations, and the subsequent production of oil, were different from, and contrary to, the drilling and production rights authorized by the permits. In no sense can it be said that Harrington drilled for oil, and has subsequently produced oil, pursuant to, or under, or as authorized by, the permits; his drilling operations were so foreign to the permits for which he applied, and which he was granted, as to be the same, in legal effect, as if he had started drilling on his neighbor’s surface. In the context here, an intentional deviation so as to complete a well under the property of another is no different from starting the well on the surface of land belonging to the other and drilling to the same place. Surely the majority cannot say that “Utilization of a permit right is effected when a well is drilled” on the surface of another. Yet wherein is there substantial difference in deliberately drilling from an authorized surface point to an unauthorized subsurface point under the lease of another? But, continues the majority opinion, the rights granted by the permits here “were utilized with reasonable diligence through exercise of the right to drill, albeit the well bores were deviated to a greater degree than was authorized and were bottomed under adjoining leases.” Would the majority say the same “albeit the well bores were started on lands belonging to another and bottomed under leases belonging to another,” and thus just as much not authorized ?

The majority opinion also says that the necessity for the original permits to prevent confiscation' “is not open to question at this late hour.” With this I agree. But what is open to question is whether the new permits sought by Harrington to redrill, and correct the intentional deviations, are necessary to prevent confiscation of his minerals at this time. This is not to say that the continuing effect of Rule 37 permits, under which operations have been, and are being, conducted in good faith and in substantial conformity, are open to question. It is to say that when the holder of a validly issued permit intentionally fails to drill and produce as authorized, in the substantial and flagrant manner shown here, and after such a course of conduct invokes the jurisdiction of the Commission by an application for a permit to drill as originally authorized, the question of whether the permit to redrill is required to prevent confiscation necessarily recurs and is subject to consideration by the Railroad Commission. Otherwise, the holder of a permit would be permitted to drain his neighbor indefinitely, or until dry, by means of an intentional deviation under the neighbor’s lease, and then assert the right to drill and produce his own lease under the same permit.

This is not a forfeiture of rights; it is a case where rights have never accrued or vested. The permits could have ripened into rights of such a nature as to preclude re-examination of the question of the necessity of the permits to prevent confiscation. But the holder of the permit chose not to drill the wells authorized by the permits. He has never drilled them. He chose to drill to, and obtain production from, a place, and under a lease, for which he had not been granted authority, and in which he had no rights; he has drilled wells for which he had no permits. His wells are outlaw wells. He cannot claim rights he would have had had he drilled the wells authorized by the permits. I am unable to follow the reasoning of the majority opinion that all the permit holder was required to do to utilize his permits, and to possess all rights incident thereto, was to break ground at the authorized surface location on his own leases; and this notwithstanding that when he broke ground he was headed for his neighbor’s lease. This is not a matter of the permits being conditioned on the drilling of a straight hole, as the majority puts it; it is a. matter of deliberately not drilling the wells authorized by the permits. It is quite obvious why one drilling a deviated well to be intentionally bottomed under the lease of his neighbor would not start the drilling on the surface of his neighbor where all could see what was happening.

Now, after drilling and producing for many years by means of wells which he had no authority to drill, and which the Railroad Commission could not authorize him to drill, Harrington seeks authority to drill and produce wells on his own lease. He is entitled to do so only if now, under present conditions, the wells are necessary to prevent confiscation of his minerals.

I would think that there must be a bona fide effort to drill a well in conformity with a drilling permit granted to prevent confiscation, together with substantial compliance therewith, before the conditions with reference to confiscation, upon the basis of which the permit was granted, will no longer be open to question. I do not think that this can exist where a well is intentionally drilled in nonconformity with the permit, and for the purpose of producing oil from a place and in a manner for which no authority has been granted or could be granted. Whatever the resulting situation may be in this latter instance should be subject to consideration by the Railroad Commission in determining whether the well originally authorized, but not drilled, is still necessary to prevent confiscation. If the Railroad Commission denies an application to redrill, as it has done here, its order is valid if supported by substantial evidence. The orders here have not been shown to be otherwise; they must therefore be upheld regardless of the reasons assigned by the Commission in support of its action.

I would affirm the judgment of the trial court.

NORVELL, J., joins in the dissent.

      . All article references are to Vernon’s Texas Civil Statutes unless otherwise expressly indicated.


author: CULVER, Justice. GRIFFIN, Justice

text:
    In re ESTATE of Nora A. PRICE, Deceased. Herbert R. STONE, Petitioner, v. The STATE NATIONAL BANK OF EL PASO, Independent Executor of the Estate of Nora A. Price, Deceased, Respondent.
    No. A-9784.
    Supreme Court of Texas.
    Jan. 22, 1964.
    Rehearing Denied March 18, 1964.

      Guinn & Guinn, Al Truex, El Paso, for petitioner.
    Scott, Hulse, Marshall & Feuille, El Paso, for respondent.
   CULVER, Justice.

The last will and testament of Mrs. Nora A. Price, a widow, was admitted to probate by the county court. Her son, Herbert R. Stone, contested the validity of this will on the grounds of lack of testamentary capacity and undue influence. On his appeal the District Judge granted the proponent’s motion for summary judgment on the issue of testamentary capacity and submitted the question of undue influence to a jury. On the verdict of no undue influence, judgment was entered ordering that the will be admitted to probate and confirming the appointment of The State National Bank of El Paso as independent executor of the will without bond. On appeal the Court of Civil Appeals affirmed. 369 S.W.2d 647.

The problem presented here is solely that of the correctness of the summary judgment entered by the trial court on the matter of testamentary capacity. Some time prior to 1958 Mrs. Price had been duly adjudged of unsound mind. On February 25, 1958, she appeared in person and by her attorney before the County Judge of El Paso and by judgment regularly entered was held to be restored to her right mind and to be then of sound mind. Immediately thereafter and on the same day, she signed and executed this will in the presence of her attorneys and other witnesses and the County Judge himself. The will bequeathed $1.00 to the contestant, and devised and bequeathed to The State National Bank of El Paso in trust all of the residue and remainder of her estate for the benefit of her disabled brother with remainder to a friend. The will was attested by three witnesses and was acknowledged by the testator and the affidavits of the attesting witnesses were duly made before a notary public in conformity with § 59 of the Probate Code which provides for the formalities required to constitute a self-proved will which accordingly may then be admitted to probate without the testimony of any subscribing witness, thus creating the presumption that the testatrix was of sound and disposing mind and memory. Mrs. Price died in El Paso on January 14, 1960.

The' contestant alleged that prior to the date of the execution of the will as the result of an injury, Mrs. Price became of unsound mind, never regained her mental faculties and did not possess legal capacity to execute a valid will on February 25, 1958, and further that she was suffering from insane delusions to the effect that the contestant had placed her in a nursing home for the purpose of obtaining her property. The record shows that the then husband of Mrs. Price, the father of contestant, had absconded with him when he was an infant and Mrs. Price had not seen this son thereafter for more than 30 years.

The sole ground asserted in proponent’s motion for summary judgment was the proposition that the order of restoration was conclusive on the court and on all parties as to the issue of testamentary capacity on the part of Mrs. Price as of the time it was entered and for the remainder of the day. Attached to the motion were certified copies of the will and the order.

The Court of Civil Appeals was of the opinion that the judgment of restoration was not conclusive of Mrs. Price’s status at the time of its entry but that it merely removed a prior adjudication to the contrary and created a rebuttable'presumption of sanity, agreeing with the holding in the case of Johnson v. Pilot Life Ins. Co., 217 N.C. 139, 7 S.E.2d 475, 128 A.L.R. 1375. Plowever, the court upheld the summary judgment for the reason that the contestant did not by affidavit or otherwise rebut the presumption of sanity on the part of Mrs. Price that resulted from the judgment of restoration. The contestant asserts that since the motion for summary judgment comprehended only a question of law, he was not required, therefore, to file any rebuttal of the presumption of sanity.

Our Courts of Civil Appeals have held that a judgment of restoration is conclusive of the party’s status as of the time the judgment is rendered and creates a rebuttable presumption of sanity thereafter. Mitchell v. Inman, 156 S.W. 290, Tex.Civ.App., wr. ref.; Starnes v. Campbell, 119 S.W.2d 116, Tex.Civ.App., wr. dism.; Holt v. Hedberg, Tex.Civ.App., 316 S.W.2d 955, no writ history. The holding in these cases is that limitations against an action to set aside a conveyance of real estate begins to run from the date of the grantor’s restoration to sanity by regular proceedings in the county court, for the grantor must be conclusively presumed to be of sound mind on that day of the restoration. This rule of law is also recognized in decisions from other jurisdictions such as Roberts et al. v. Washington Trust Co., 313 Pa. 584, 170 A. 291; Cathcart v. Stewart, 144 S.C. 252, 140 S.E.2d 498; Bradburn v. McIntosh, 10 Cir., 159 F.2d 925.

In Tipton v. Tipton, Tex.Civ.App., 140 S.W.2d 865, wr. dism. judg. cor., a suit brought to set aside a deed on the ground of mental incapacity on the part of the grantor, the issue of capacity was submitted to a jury notwithstanding the fact that the grantor was adjudged to have been restored to sanity on the same day the deed was executed. In that case the court merely expressed the opinion that it was not established as a matter of law that the grantor was without sufficient mental capacity since she was adjudged to have been restored to sanity on the same day the deed was executed. It is to be inferred that the court was of the opinion that the judgment was not conclusive on that day, but only created a presumption of sound mind.

None of these cases, nor any others that research has furnished, pass upon the precise question here presented in connection with the probate of a will. Our Probate Code, § 88, (formerly Art. 3348) provides that, notwithstanding the general rule that in law a person is presumed to be of sound mind until the contrary is shown, before a will may be admitted to probate it must be proved that the testatrix was of sound mind at the time of its execution, unless the will is self proved as provided elsewhere in the Code. Of course the self proving provisions have only the effect of authorizing the substitution of affidavits in lieu of testimony offered before the court.

In the light of this legislative procedural requirement, we believe that a case involving the probate of and the contest of a will is to be distinguished from those cases which hold that the legal restoration of a person of sound mind is conclusive on the day of the restoration in so far as the, applicability of the statute of limitations is concerned. The substantive rights of a litigant to a trial of the issues would seem to be more fundamental than the applica-j tion of the bar of limitations, especially so in view of the statutory exceptions to the general rule. In such a case as we have here, the order of restoration should place the testatrix in no better position than one whose sanity had never been questioned or whose soundness of mind had never been determined adversely. We therefore hold that in a will contest case, a judgment of restoration to sanity is not conclusive on the question of mental status even during the day in which the judgment is entered.

We turn to the point upon which this application for writ of error was granted. The sole proposition advanced by the proponent in his motion for summary judgment was that the order of restoration was conclusive on the court and on all parties as to the issue of the mental status of the testatrix. The contention of the contestant is that the motion only presented a question of law and he was therefore not required to file a controverting affidavit raising the fact issue of testamentary incapacity of the testatrix.

It has been said that if the case be one wherein summary judgment is warranted the court is not limited to the grounds stated in the motion, but may grant the judgment upon some different basis. McDonald, Texas Civil Practice, Vol. 4, § 17.26.2.

For instance, if it affirmatively appears from the pleadings, admissions, depositions and affidavits that there is no issue as to any material fact upon which the outcome of the litigation depends, then summary judgment is the proper remedy even though it be granted upon a ground different from that specified in the motion. Broderick Wood Products Co. v. United States, 195 F.2d 433, 10th Cir., (1952). That is to say in such a case where there could be no fact issue, to reverse would be a fruitless procedure.

The motion for summary judgment may be compared to a motion for an instructed verdict which should state the specified grounds relied upon therefor. Rule 268, Texas Rules of Civil Procedure. But where the motion for instructed verdict has been sustained by the court that action will not be considered reversible error for the sole reason that the motion failed to state the specific grounds upon which the order was based. If there are no fact issues raised by the evidence to be submitted to the jury the court can, of its own volition, instuct a verdict for one of the parties. Rudco Oil & Gas Co. v. Gulf Oil Corp., Tex.Civ.App., 169 S.W.2d 791, ref. w. o. m.; Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689.

There was no indication to the contestant, prior to the entry of the order, that the court would uphold or deny the motion for summary judgment upon any other ground than on the question of law raised in the motion, and we are convinced that the court based the order solely upon his opinion that the restoration judgment conclusively established that the testatrix possessed the necessary testamentary capacity. The order contains the following recitation:

“It is accordingly specified that there is no substantial controversy as to the following issues:
“(1) That Nora A. Price is dead and that she died in El Paso, Texas on January 14, 1960.
“(2) That on February 25, 1958, Nora A. Price executed the instrument on file herein dated February 25, 1958 and designated therein as her Last Will and Testament.
“(3) That on February 25, 1958, Nora A. Price was the subject of restoration proceedings had in Probate Cause No. 14633, styled Guardianship of Nora A. Price, in the County Court of El Paso County, Texas, and that an order of restoration as to her status was on that day duly signed and rendered by the Judge of said Court.
“(4) That on February 25, 1958, the late Nora A. Price possessed the testamentary capacity and sound mind required to execute a valid will under the laws of the State of Texas and further, on such date she was not suffering from any insane delusions.”

The summary judgment rule, 166-A, has been somewhat strictly construed against the movant. It has been held that the courts should accord the party resisting the summary judgment more indulgence. Whelan v. State, Tex.Civ.App., (1952) 252 S.W.2d 271. The purpose of the rule is to eliminate patently unmeritorious claims, or untenable defenses and to avoid delays of trial where there is no genuine issue of fact. It was never intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. The summary judgment is to be applied with caution and will not be granted where there is doubt as to the facts. Although the prompt disposal of judicial business is greatly to be desired, that is not the main objective. Penn v. Gulbenkian, 151 Tex. 412, 252 S.W.2d 929.

It must be assumed that the contestant filed his petition in good faith, and would have undoubtedly filed a controverting affidavit had it been indicated that any question other than one of law was being presented to the court for determination or that the court would take into consideration in passing upon the motion any matters not therein urged. We believe that the summary judgment rule does not contemplate that under such circumstances, contestant’s right to a trial would be foreclosed.

We therefore reverse the judgments of the trial court and of the Court of Civil Appeals and remand the cause for a trial upon the issue of testamentary capacity.

GRIFFIN and HAMILTON, JJ., dissent.

GRIFFIN, Justice

(dissenting).

I dissent because in my opinion the judgment restoring Mrs. Price to sanity and the self-proving will, both of which were attached to the proponent’s affidavit for summary judgment, raised the presumption that Mrs. Price was sane. Contestant did not file anything rebutting this presumption. Therefore, the trial court was correct in granting the summary judgment. I would affirm the Court of Civil Appeals.

HAMILTON, J., joins in this dissent.

      . Section 426, Probate Code, V.A.T.S.

      . See Navarro v. Garcia et al., Tex.Civ.App., 172 S.W. 723; Beazley v. Denson, 40 Tex. 416; Garcia v. Galindo, Tex. Civ.App., 199 S.W.23 498, reversed on other grounds, 199 S.W.2d 499.


author: WOODLEY, Presiding Judge.

text:
    William Grady NORTH, Appellant, v. The STATE of Texas, Appellee.
    No. 36354.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Rehearing Denied March 18, 1964.
    Theo Pat Henley, San Antonio (On Appeal Only), for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

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

The indictment alleged the burglary, on or about the 12th day of September, 1962, of a house occupied and controlled by Maria Gerhardt with intent to commit theft. It also alleged a prior conviction in Harris County on July 20, 1961, for the unlawful possession of narcotic paraphernalia and a conviction prior to the commission of that offense, in Criminal District Court of Bexar County, on June 21, 1954, for burglary with intent to commit theft.

The prior convictions were proved as alleged.

The validity of the conviction in Harris. County is attacked upon the ground that the indictment upon which the conviction was. had described the narcotic paraphernalia as. “an eyedropper and spoon.”

The indictment alleged the unlawful possession for the purpose of subcutaneous injection of narcotic drugs in a human being,“narcotic paraphernalia, to-wit, an eyedropper and spoon adapted for such use.”

The claimed defect in the indictment did not render the prior conviction void. ■ The complaint as to its form comes too late.

The jury was properly instructed that the state relied upon circumstantial evidence and as to the law of principals.

Maria Gerhardt was the operator of Willie’s Lounge, at the corner of Hack-berry and Boyer in San Antonio. The Lounge closed about 12:30 A.M.

Police Officer R. S. Kosharek testified that as he approached the intersection of Hackberry and Boyer Streets he noticed a ’55 Pontiac, two-tone dark and white colored, automobile approach on Boyer and turn south on Hackberry. There was but one person in the Pontiac.

The witness fixed the time as about 4 A-M. and testified that there was no traffic on-the streets and this was the only automobile he had ever seen come out on Boyer at that time in the morning, other than an old Chevrolet driven by a baker going to work.

As he accelerated his speed with the intention of investigating, he noticed that the light at the back door of Willie’s Lounge was, out. He parked his squad car and went to the door to investigate. As he reached the door he ■ heard noises in the Lounge “*',*.* 0f something heavy hitting the wood floor.” He ran back to the squad car and notified the dispatcher and other officers in the area that he felt there were burglars in the Lounge.

While waiting for other officers to arrive,, Kosharek went to the corner at the front of the Lounge in time to see the same ’55 Pontiac move from the front door of the Lounge with two occupants. As the Pontiac left the parking area he noticed the front door of the Lounge standing slightly ajar. He then ran back to the squad car ■and radioed a description of the Pontiac and the information that it was at the scene and he felt the burglars were fleeing.

Police Officer F. L. Whitley saw the ’55 Pontiac as it was leaving the parking area of Willie’s Lounge, pursued and overtook it. The appellant, who was driving the car, was told to return to Willie’s Lounge, and he said he would. Officer Whitley testified that as he followed the Pontiac back toward the Lounge the appellant, instead of turning north toward the Lounge at an intersection, went south and then east, traveling at a high rate of speed.

Officer Whitley testified that he did not lose sight of the Pontiac during the flight and that after the Pontiac hit a dip in the street and was damaged, and after a shot was fired, the Pontiac driven by appellant stopped.

The appellant was searched and a large amount of change — quarters, nickles and dimes — was found. A search of the Pontiac resulted in finding a crowbar and pinch bar under the front seat and four cold bottles of beer on the left front floor board — two bottles of Pearl beer and two bottles of Falstaff.

The state’s evidence further showed that the padlock was missing and the hasp had been pried loose from the wood at the front door of the Lounge.

On the inside of the Lounge a compartment of an ice box in which Pearl and Falstaff beer was kept was standing open, and the cover of the money compartment of a “juke box” which took nickles, dimes, quarters and half-dollars, was found on the floor. Also a canvas bag was gone.

Mrs. Gerhardt testified as to her ownership of the building and testified that she gave no one permission to enter it or take anything from it.

The evidence, viewed in the light most favorable to the state, is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Refugio J. FIGUEROA, Appellant, v. The STATE of Texas, Appellee.
    No. 36569.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.
    Rehearing Denied March 18, 1964.
    Wm. H. Hamblen, Edna, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, sixty days in jail and a fine of $300.00.

The evidence reflects that there had been prior difficulties between the appellant and the injured party before they met at a dance; that upon their meeting at the dance, the appellant cut the injured party with a knife in the. body, and after the injured party fell, the appellant leaned over and cut him across the nose and face with the knife.

The evidence is sufficient to sustain the conviction for aggravated assault with a knife under Sec. 10 of Art. 1147, Vernon’s Ann.P.C.

The sole contention for reversal' is presented by two formal bills of exception. Appellant insists that it was reversible error for Ted Dunham to act as special prosecutor over his objections made before and after the selection of the jury and introduction of the evidence, on the ground that Dunham represented the injured party in a criminal case arising out of the same transaction.

Dunham appeared at the request of the state, without remuneration, and participated along with the County Attorney in the examination of the witnesses during the trial.

No abuse of discretion is shown in the action of the trial court in overruling appellant’s objections, and permitting Dunham to assist in the prosecution. Phillips v. State, 159 Tex.Cr.R. 286, 263 S.W.2d 159; Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Anita M. IBARRA, Appellant, v. The STATE of Texas, Appellee.
    No. 36650.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    No attorney of record on appeal for appellant.
    James E. Barlow, Dist. Atty., Raymond A. Wietzel, Asst. Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder; the punishment, 3 years.

The appellant and the injured party are cousins, their mothers being sisters. The injured party resided with his children and his mother on a chicken farm enclosed by a fence six feet high with a ten foot gate across the driveway by the residence. About 9 p. m., the appellant, her son, and her mother entered the driveway in a car, and when the injured party went to the car, the appellant cursed him saying “I came to see you * * * because you don’t go see us.” He asked appellant not to curse at his home in front of his daughters. When she continued cursing, he told her if she cursed him anymore he would whip her. When she failed to observe the warning he grabbed her by the arm, and as he pulled her from the car her mother said “ * * * don’t hit her; she’s drunk.” As the injured party was putting appellant back in the car, she kicked him in the abdomen, and he said to her mother: “Please get her out of there,” and appellant drove away.

At approximately 11 p. m., they returned and parked by the gate. Appellant’s mother called out: “We want to talk to you (the injured party).” As the injured party stood near the car, he and appellant’s mother exchanged apologies. Suddenly, the appellant opened the car door and drew a pistol. When the injured party told appellant to put the pistol away, she replied: “You think you are too good,” and she began shooting the pistol. Out of about five shots, one bullet hit the injured party in the lower part of the right hip and lodged in the front part of his stomach. Then the appellant, her son, and her mother drove away. Immediately, the injured party was taken to the hospital, where the bullet was removed, and he remained there approximately five days.

The evidence offered by appellant reflects that when the injured party came from the house after the appellant, her son, and her mother had driven their car into the driveway, he was angry and complained about their coming into the driveway, which he said he did not permit. Appellant cursed him but said it was in a teasing manner, and told him they had come to see her mother’s sister. He said he did not want her to curse him, pulled her out of the car by her hair and beat her severely about the face and head, then put her back in the car, and slammed the door on her ankle. She then left with her son and her mother. Later, her mother decided to go back to see her sister. Her mother went to the gate and called, whereupon the injured party came out of his house and said his mother was not there. At this time the appellant said: “Mother come on back; let’s go.” Then the injured party said: “Here you come again, G-d-you. I told you to keep away from here; I am going to shoot you this time.” He called his son, asked for his rifle, and went to the trunk of his car which was parked nearby. When the injured party took something out of the car, she began shooting her pistol because she was afraid he would hurt her, her son, or her mother. Appellant testified that he had something in his hands but she did not know what kind of weapon it was, but she heard gun shots as they drove away; and that at such time she did not know that she had shot him.

The record contains no formal bills of exception, no requested charges, and no objections to the court’s charge. The informal bills have been considered and they do not show error.

The jury accepted the state’s version of the incident, rejected that of appellant, and we find the evidence sufficient to support their verdict.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Simon N. HEATH, Appellant, v. The STATE of Texas, Appellee.
    No. 36559.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.
    Rehearing Denied March 18, 1964.
    James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is aggravated assault; the punishment, a fine of $1,000.00.

The State’s evidence reflects that on the day in question appellant was loading a truck in moving from the property where the incident occurred when his young son came running up with “Butch,” the 10 year old son of Mr. and Mrs. Haas, in hot pursuit. Appellant made “Butch” go home.

Mr. Karl Haas, the husband of the injured party, testified that his son came home, “crying, was shook-up and frightened,” and that subsequently he and Mrs. Haas went over to see appellant. Mr. and Mrs. Haas were walking up appellant’s driveway when appellant walked over-to them, started shoving and said, “Get,off my God damn property, you have no business over here.” Mr. Haas further testified that after some “bickering” between appellant and Mrs. Haas that appellant slapped Mrs. Haas, and she .fell to her knees. The appellant then stated, “You do it again and I will slap you down again,” and he again slapped the injured party and she fell ⅛ the ground. Mr. Haas also testified that neither he nor his wife had struck appellant and that when the police arrived some 10 minutes later appellant was still excited.

Over appellant’s objection, Mr. Haas testified that when the police officers wanted to know what happened, that appellant stepped up and said, “Well, I slapped her down, * * * I can pay my fine and I am going to do it again, I am proud of it.”

Mrs. Haas’ testimony was substantially the same as that of her husband although she did 'state that she called appellant a “No good son-of-a-bitch,” just prior to being slapped by him.

Officers H. O. Wilkerson, Robert E. Thompson and Ferdinand Henke each testified over appellant’s obj ection that upon arriving at the scene appellant admitted having slapped Mrs. Haas and indicated that he might hit her again.

Officer Wilkerson further testified that appellant was very angry when the statement was made and that he (Officer Wilkerson) told him to calm down.

Appellant, testifying in his own behalf, stated that after he sent the Haas boy home, Mrs. Haas came on the premises and hit him and that he backed up but she kept fighting him and calling him “everything in the world,” that she missed a blow and fell over on the grass but got up and came after him (appellant) again. Appellant further testified that although Mr. Haas did not hit him, he was backing away from the injured party and watching her husband when she fell down again and just lay there. Appellant also testified that he did not slap or hit Mrs. Haas at any time.

The jury resolved the conflict in the testimony in favor of the state, and we find the evidence sufficient to support their verdict.

It is contended by appellant that his statement, made after the officers’ arrival, is not admissible as it is in the nature of a confession and was made to the officers while under arrest.

Statements of the appellant though in the nature of a confession, which are a part of the res gestae are admissible though he be under arrest when the statements are made. Fowler v. State, 162 Tex.Cr.R. 513, 287 S.W.2d 665; Lamkin v. State, 136 Tex.Cr.R. 99, 123 S.W.2d 662.

In Rainer v. State, 67 Tex.Cr.R. 87, 148 S.W. 735, the rule was stated that “[r]es gestae are events speaking! for themselves through the instinctive words and acts of participants * * *. Nor are there any limits of time within which the res gestae can be arbitrarily confined,” and further, “[w]as appellant’s mind detracted from the events, or do his acts indicate that his mind had become cool and calculating * * *. Instinctiveness is the requisite, and when this obtains the declarations are admissible.”

Following the above test, and other holdings of this court, and in the light of evidence showing appellant was still excited, indicated he might hit the injured party again and was still very angry, when the statement was made, we conclude that the statement was made under such conditions as to make it admissible as part of the res gestae. Phillips v. State, 137 Tex.Cr.R. 206, 128 S.W.2d 393; Dowling v. State, 167 Tex. Cr.R. 43, 317 S.W.2d 533, and cases cited therein.

The further contention, that the trial judge should have charged as to self defense as was requested by appellant cannot be sustained. Appellant testified that he was backing away from the injured party; that she fell down twice; that he was not afraid of her and that he did not strike or slap her. Taking his testimony, nothing was done by him in defense of his person and thus the issue of self defense was not raised.

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


author: DICE, Commissioner.

text:
    Jack Osro WESTFALL, Appellant, v. The STATE of Texas, Appellee.
    No. 36474.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Rehearing Denied March 18, 1964.
    Rex Emerson, Houston (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1402a, Vernon’s Ann.P.C., for unlawfully breaking and entering a coin-operated machine; the punishment, two years in the penitentiary.

The state’s evidence shows that the prosecuting, witness, Walter A. Keller, owned a coin-operated laundry which was located across the street from his home in the city of Huntsville. On the night in question, while in his home Keller observed an automobile being driven up to the laundry and stop. Appellant and another man and woman got out of the automobile and went inside the laundry. The laundry was well lighted and Keller saw the trio make change for 50‡ and one of them drink a Coca-Cola. In a very few minutes the three left in the automobile. Some forty minutes later the same automobile was again driven up to the laundry and the man and woman got out and went inside. Appellant then drove off in the automobile and, as he left, Keller observed the man and woman break open a coin machine, described as a coin changer, with a bar and take money therefrom. Keller’s wife called the police and, while waiting for them to arrive, Keller saw appellant drive by the laundry several times.

Officer Todd soon arrived and placed the man and woman under arrest. Appellant developed on cross-examination of the officer that after her arrest the woman stated that she was his (appellant’s) wife. While the officer was at the scene, appellant again drove by in the automobile and, upon being pursued by Keller and the officer, was taken into custody. It was shown that $35 had been taken from the machine and that Keller had not given the appellant permission to break and enter the same.

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

The court,' in his charge, to which no objection was made, instructed the jury upon the law of principals.

Appellant insists that the evidence is insufficient to sustain his conviction as a principal because there was no proof that the parties were acting together in breaking and entering the coin-operated machine. Specifically, appellant insists that there is no showing of any common intent and previously formed design between him and the other man and the woman to break and enter the machine or that he aided or abetted them in committing the burglary.

With such contention we do not agree. The agreement of the parties to act together in an unlawful act or design may be established by circumstantial evidence. Scott v. State, 161 Tex.Cr.R. 268, 276 S.W.2d 525. Appellant’s actions before, during the time, and after his companions broke and entered the coin-operated machine were sufficient to support the conclusion that all of the parties were acting together under a previously formed design to break and enter the coin-operated machine. The evidence is sufficient to support the conviction.

Appellant complains that the court erred in cumulating the sentence in the present case with a prior sentence in Travis County on the ground that it was not shown that he was the person previously convicted.

A statement of facts of the evidence adduced at the time the court pronounced sentence is brought forward in the record. At the hearing, certain authenticated prison records were introduced in evidence, which records included certified copies of the judgment and sentence in Cause No. 32944, styled The State of Texas vs. Jack Osro Westfall, on the docket of the Criminal District Court of Travis County, wherein the defendant was convicted in said court on the 15th day of June, 1961, of the offense of burglary and sentenced to serve ten years in the penitentiary. Also included in the prison records was a photograph of one Jack O. Westfall, taken at the time he was received in the penitentiary.

Sheriff Floyd Farris, of Walker County, testified that prior to June 9, 1961, he delivered the appellant to Travis County and he further stated that the photograph appearing in the prison records was that of the appellant, who was then seated in the courtroom. He further testified that prior to the hearing he had received appellant from the Department of Corrections under a bench warrant. Such proof was sufficient to show that appellant was the same person who was sentenced in the Criminal District Court of Travis County.

The sentence appearing in the transcript, in ordering cumulation of the two sentences, refers to the date of the conviction and number of the cause in Travis County but fails to designate the court and the offense and sentence imposed. The facts developed at the time appellant was sentenced being before us, the sentence is hereby reformed to provide that the punishment assessed against appellant in this cause shall begin when the judgment and sentence dated June IS, 1961, in Cause No. 32944, styled The State of Texas vs. Jack Osro Westfall, on the docket of Criminal District Court of Travis County, assessing appellant’s punishment at confinement in the penitentiary for ten years, shall cease to operate.

As reformed, the judgment is affirmed.

Opinion approved by the Court.


text:
    Gussie LONG, Appellant, v. The STATE of Texas, Appellee.
    No. 36611.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Milton H. Mulitz, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Sidney Farmer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $250.

Texas Highway Patrolman Barnfield testified that he observed the appellant driving his automobile on a public highway in Harris County at a speed of about 10 miles per hour.' He stopped the appellant after observing that the car he was driving was weaving onto the shoulder and across the center line of the highway. He assisted the appellant from his car, observed that his speech was incoherent, his words were “jerky”, his eyes were red and glassy, his face was flushed, and he had a strong odor of alcohol on his breath. (The witness also testified as to how the appellant walked, and that he had a physical disability.)

The witness Barnfield expressed the opinion that the appellant was intoxicated.

Herbert Force, who was riding with Patrolman Barnfield, also expressed the opinion, based upon his observation of him after his arrest, that the appellant was intoxicated.

The appellant testified that he had been fishing with his wife, had consumed only-three bottles of beer, and was not intoxicated.

Appellant’s wife, who was with him when he was stopped, was not called as a witness for the appellant.

The jury resolved the issue as to ap-. pellant’s intoxication against him and the evidence is sufficient to sustain the verdict.

Over the objection that she was not on trial and that the evidence was immaterial and irrelevant to any question involved in this particular case, the witness Barn-field was permitted to testify that appellant’s wife was also, in his opinion, intoxicated.

The witness Force, over similar objection, also testified that he smelled alcohol on her breath and formed the opinion that the lady was intoxicated.

We see no error. Andrews v. State, 161 Tex.Cr.R. 550, 279 S.W.2d 331; Watkins v. State, 165 Tex.Cr.R. 20, 302 S.W.2d 435; McClain v. State, Tex.Cr.App., 372 S.W.2d 341.

The remaining complaint relates to the admissibility of testimony of the witness Force to the effect that appellant’s wife had a pistol.

The question, answer and the objection overruled were:

“Q. Did you have occasion to see anything unusual in the person of the woman who was there?
"A. When we were about ready to leave, there was a pistol brought out”
Appellant’s counsel: “Objection to that your Honor.”

The overruling of such objection does not constitute ground for reversal.

Even so, the appellant thereafter testified that his wife had a pistol with her at the time he was stopped.

No error appearing, the judgment is affirmed.


author: MORRISON, Judge.

text:
    Bobby HOLCOMBE, Appellant, v. The STATE of Texas, Appellee.
    No. 36556.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    No attorney of .record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with four prior convictions for felonies less than capital alleged for enhancement; the punishment, life. ■

“The record on appeal does not reflect that appellant has been sentenced in the trial court. Where no sentence has been pronounced in the trial court, this court is without jurisdiction to enter any order except to dismiss the appeal.” Aguirre v. State, Tex.Cr.App., 271 S.W.2d 819. See also Skaggs v. State, 166 Tex.Cr.R. 88, 311 S.W.2d 410.

The appeal is dismissed.


text:
    Eldridge Leroy DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36641.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    No attorney of record on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant waived a trial by jury and entered a plea of not guilty before the court to an information charging the offense of unlawfully carrying a pistol, with a prior conviction for the same offense alleged for enhancement. The court found the appellant guilty as charged and assessed his punishment at sixty days in jail.

It is undisputed that about 1 a. m. the appellant passed a police patrol car while driving his pickup along a public street. Because he was driving at an excessive rate of speed the officers stopped him and gave him a ticket. Upon stopping, the appellant got out of the pickup and left the door open. From the outside of the pickup a .38 caliber pistol could be seen on the front seat. The pistol contained five live shells and was in firing condition.

Testifying in his own behalf, the appellant admitted that he had the pistol on the seat of the pickup when the officers stopped him for speeding. He further stated that he had just gotten the pistol at a cafe, where he had left it as security on an account, and after paying the account he was taking the pistol home when the officers stopped him.

The prior conviction was stipulated as alleged, and it was also admitted by the appellant on direct examination.

The court resolved the issues of fact against the appellant.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    Woodrow COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 36607.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    No attorney of record on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

The appellant, who walks with a limp and has a speech defect, was involved in a minor collision between the pickup truck he was driving and an automobile driven by David W. Kemptner. Police officers who investigated and Mr. Kemptner testified that from their observation of him they formed the opinion that the appellant was intoxicated.

A blood test taken with appellant’s consent was examined by City Chemist Floyd E. McDonald, who testified that the test showed an alcohol content of .2 per cent alcohol and that persons with the widest tolerance for alcohol become intoxicated with a .1 per cent alcohol content in their blood.

The appellant testified that he did not drink and that some 4 ounces of medicine his doctor had given him, which he was told contained alcohol, was the only alcohol he had consumed on the day in question.

The evidence is sufficient to sustain the jury’s verdict.

The record contains no formal bills of exception or exceptions relating to the court’s charge.

The informal bills present no error which would warrant reversal.

The judgment is affirmed.


text:
    Alexander MASON, Appellant, v. The STATE of Texas, Appellee.
    No. 36438.
    Court of Criminal Appeals of Texas.
    March 4, 1964.

      Penrice & Johnson, by Robert L. Penrice, Waco, for appellant.
    Thomas B. Bartlett, County Atty., Jack Welch (Special Prosecutor), Marlin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault on a peace officer; the punishment, two years in jail and a fine of $1,000.00.

Our prior opinion is withdrawn and the following is substituted in lieu thereof. Appellant was in jail on another charge, and asked to use the telephone. Since there was none in the jail, he was accompanied by several deputy sheriffs to their office where he used the telephone. After doing so, appellant lay down on the floor and refused to walk back to the jail. He was bodily carried to the jail some distance away, and thence up to the third floor. Nothing unusual occurred other than the above, until the entourage reached the top floor, at which time the officers sat appellant down in order to move certain objects; appellant then arose, grabbed the bar outside the cell and refused to enter. Erskine, the Deputy Sheriff-Jailer, who had brought appellant his breakfast that morning, testified that as he and Deputy Sheriff Curtis were pulling him by his arms into the cell, appellant broke loose from Curtis, who was holding his right arm, and “he swung at me, hit me, knocked me on the bunk. * * * He knocked my glasses off.” The other officers testified to substantially the same facts and verified that Erskine’s glasses were bent and his nose was bleeding. It was shown that prior to the incident in question, appellant had been arrested on a Capias charging him with the offense of contributing to the delinquency of a minor.

Appellant, testifying in his own behalf, stated that-he was a minister, that he had been harassed by the officers, and that he was arrested at a cafe “that caters to white customers”, but that later other charges were filed against him. He admitted that he lay down on the floor in the sheriff’s office, which made it necessary for the officers to carry him from the courthouse to the jail and upstairs. As to the alleged assault upon Erskine, he testified, “At no time did I hit, and at no time did I even swing.” He did state that when they reached the third floor, he kicked loose and Deputy Sheriff Sharp kicked him in the side.

He called several witnesses who attested to his reputation.

Dr. T. G. Glass, the County Health Officer, testified that on the day in question he examined appellant, who complained of being beaten, but from his examination, he was unable to find any indication of personal injury. All the officers who were present denied that they inflicted any violence upon appellant.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to support the conviction. We shall discuss the contention advanced in brief and argument. No formal bills of exception appear in the record. A motion for change of venue was made, but the court overruled the same and refused to hear evidence in support thereof. This being a misdemeanor case, a change of venue is not authorized by the holdings of this Court except in those rare cases which come within the terms of Article 563, Vernon’s Ann.C.C.P., which both the State and appellant overlook in their briefs. Appellant urges that we overrule the long line of decisions holding that venue may not be changed in a misdemeanor case except in those counties wherein Article 563 controls. Appellant’s contention that Article 562 as so construed deprives him of a fair trial guaranteed him under the due process clause of the Federal Constitution because of the existence of prejudice against him in Falls County. In Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312, a death penalty conviction, we said:

“It has been the consistent holding of this Court, in Lopez v. State, 158 Tex. Cr.R. 16, 252 S.W.2d 701; Kizzee v. State, [166] Tex.Cr. [R. 191], 312 S.W.2d 661; and Slater v. State, [166] Tex.Cr. [R. 606], 317 S.W.2d 203 and cases there cited, that in order to require a reversal for refusal to change venue, there must be a showing that prejudice against the accused found its way into the jury box at his trial. We reverse where such a showing is made. Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239.”

We likewise here find no evidence in this record that prejudice against appellant found its way into the jury box at his trial. It has been the consistent holding of this Court that our statutes, which do not provide for a change of venue in misdemeanor cases, are not unconstitutional. Patton v. State, 124 Tex.Cr.R. 656, 65 S.W.2d 308.

He next contends that the court erred in permitting Sheriff Brady Pamplin to testify after the rule had been invoked. We find nothing in the record to verify appellant’s contention that the Sheriff had actually been in the courtroom and heard the testimony of the other witnesses. Be this as it may, the Sheriff did not testify as to the alleged assault, as he was not present, but merely testified in rebuttal as to his contact with appellant outside the jail, and about which appellant had testified, and hence, no harm is shown.

His last contention is that the court erred in not instructing the witnesses in accordance with the terms of Article 647 Vernon’s Ann.C.C.P. when placing the witnesses under the rule. In the absence of a showing that the rule was violated, no reversible error is reflected. Darnall v. State, 91 Tex.Cr.R. 659, 240 S.W. 540.

The maximum punishment provided bylaw was assessed by the jury.

While a reduction of the punishment would seem to be appropriate, this Court is without authority to reduce it or to set aside the conviction upon the theory that the punishment is excessive.

Authority to grant pardons, reprieves and commutations of punishment is vested by the Constitution in the Governor upon recommendation of the Board of Pardons and Paroles.

Finding no reversible error, the judgment is affirmed.