author: GREENHILL, Justice. GRIFFIN, Justice.

text:
    H. M. FORD et ux., Petitioners, v. AETNA INSURANCE COMPANY et al. Respondents.
    No. B-445.
    Supreme Court of Texas.
    Jan. 17, 1968.
    Rehearing Denied Feb. 21, 1968.

      Burnett, Burnett & Joseph, William G. Burnett, Sinton, Waitz, Bretz & Collins, San Antonio, for petitioners.
    Fischer, Wood, Burney & Nesbitt, Frank W. Nesbitt, Corpus Christi, for respondents.
   GREENHILL, Justice.

In a previous suit, Aetna Insurance Company recovered a judgment for approximately $138,000 against H. M. Ford and others. 394 S.W.2d 693 (Tex.Civ. App.1965, write ref’d n. r. e.). In an effort to satisfy that judgment, Aetna got out execution against the properties of Ford. He claimed to have an urban residential homestead just outside of Sinton, Texas, consisting of two adjacent tracts of land. Aetna contended that some 23 acres of this land did not constitute a part of his residential homestead. Ford also had two non-contiguous lots in the same block in Sinton, both of which he claimed to use in his plumbing business, and both of which he claimed as business homestead.

Ford and his wife brought this action against Aetna and the Constable of Precinct 1, San Patricio County, to enjoin the sale under writ of execution of the disputed portion of the residential homestead and the lots claimed as business homestead. The trial court granted Ford a temporary injunction. The Court of Civil Appeals sitting at Eastland affirmed as to all the residential property. It held, however, that because the two city lots were not contiguous, only one lot could be exempt as business homestead. In reversing the judgment of the trial court on temporary injunction, it held that Ford could elect which of the lots he would claim as business homestead. 417 S.W.2d 448.

Aetna did not file an application for writ of error; so the question as to the residential homestead is not before us. Ford contends that business lots need not be contiguous, and that there was evidence to sustain the action of the trial court in enjoining the sale of both lots. The questions before us are whether the fact that the two town lots are not contiguous prevents their constituting “a place” for a business homestead; and assuming that two non-contiguous lots may constitute “a place” for a business homestead, whether there was an abuse of discretion by the trial court in granting the temporary injunction to stay the sale.

As stated, the two lots claimed by the Fords as their business homestead are not adjacent or contiguous. The lots, both in Block 35 in Sinton, are separated by an alley. They are also separated laterally a distance of 25 feet. As illustrated by the diagram below, not drawn to scale, they are so closely situated to one another as to be capable of use in a single business.

Mr. Ford testified that both lots were necessary and convenient for use in the exercise of his plumbing business, and that both were actually used in such business. His office, warehouse and sales area were located on lot 16, while the building on lot 4 contained his workshop and a storage area. While it is disputed, there is evidence in the record to support the Fords’ contention that both lots were collectively used and necessary to the operation of his plumbing business.

Art. 16, Sec. 51, Texas Constitution, Vernon’s Ann.St., defines the business homestead as follows:

“The homestead in a city * * * shall consist of lot, or lots * * * used * * * as a place to exercise the calling or business of the head of the family * * *«

In McDonald v. Campbell, 57 Tex. 614 (1882), this Court was first called upon to determine the extent of the business homestead exemption where the claimant claimed two non-contiguous lots. The plaintiff had execution levied on a house and lot owned by a druggist, who contended the house constituted part of his business homestead. The defendant’s drug store was not contiguous to the house in question, which was used as a store room where patent medicines and other items used in the drug store were kept. In holding that the house was not exempt from execution as part of the business homestead, the Court said:

“We are of the opinion that the facts do not show that the use made of the house as a mere wareroom in which to store away articles of merchandise connected with the business in which the defendant was engaged as a druggist, was, in a legal and proper sense, the use of that house and lot in the exercise of the defendant’s calling or business. Whilst the law means to allow the head of a family, exempt from execution, one or more lots where he may exercise his vocation and conduct his business, its scope is not intended to extend so far as to protect from execution a lot or lots in excess of the lot or lots on which the vocation or the business of the head of the family is followed, even though such extra lots might be actually used in a way which was incidentally useful or profitable to the business which was being followed. Such supernumerary lots must be deemed merely auxiliary to the business office, station, store, shop or other like place of business; they are superfluous to the necessities of a trade homestead, which, according to the spirit of the constitution, demands no more than a sufficiency of lots whereupon to exercise the calling or business of the head of the family. Under the evidence in this case, we conceive that the drug store and lot was the defendant’s place of business, and that the house in controversy was merely a place where the defendant stored certain goods in connection with his business as a druggist. We cannot believe that a proper construction of the constitution will so far expand its liberal provisions as to make them include lots indefinite in number, at the pleasure of the beneficiary, — limited only by their value not to exceed $5,000, when designated, without regard to their improvements,: — and exacting no other requirement for exemption than their appropriation to collateral service and use in the business which the owner may be conducting on some other lot elsewhere in the town or city.” 57 Tex. at 617.

The Court reached a similar result in Rock Island Plow Co. v. Alten, 102 Tex. 366, 116 S.W. 1144 (1909). In that case, the judgment debtor owned four lots which he claimed as business homestead. He operated a hardware and implement store on the front two lots, which were separated from his other two lots by a single lot owned by a third party; thus the front two lots were not contiguous to the back two lots. He used these latter two lots to store and expose for sale second-hand implements and vehicles which he had taken in trade, and to assemble vehicles and implements before placing them in his warehouse. The water closet used by his customers and himself was also located on the back lot. This Court held that the back two lots were not protected by the business homestead exemption, saying:

“* * * that portion which is devoted to the business must constitute a place, that is, one place, at which the business is transacted. It may consist of more than one lot if so used as to make them a place for transacting that business ⅝ * ⅜ ”
“The language applied to the lots to be used for the purposes of a home and the lots dedicated to the transaction of the business of the head of the family presents a sharp contrast in the character of the two exemptions. For the residence, or family homestead, it is not required that all of the lots should be used as ‘the domestic or hearthstone home,’ only that they be used ‘for the purposes of the home.’ * * * In contrast to that language, it is provided that for the • business exemption the lots must constitute a place to exercise the calling or business of the head of a family which forbids the construction that such lots might be used ‘for the purposes’ or in aid of the business of the family.” 116 S.W. at 1144.

It is apparent from the quoted language of the above cases that the non-contiguity of the lots involved was not the controlling factor in determining that such non-contiguous lots were not part of the business homestead. Instead, the Court determined that the business homestead exemption was limited only to those lots actually used in the exercise of the business; and therefore lots merely used “in connection with” the business or “in aid of” the business actually conducted on another lot were not protected by the business homestead exemption.

Some writers and legal scholars have concluded from these two cases that the business homestead exemption cannot, under any circumstances, extend to two or more non-contiguous lots. See, e. g. Nunn, Texas Homestead and Other Exemptions 137 (1931); Comment, 8 S.W.L.J. 90, 92 (1954) ; Note, 16 Texas L.Rev. 108 (1938). Dean McSwain also reached this conclusion from the Rock Island Plow case but stated that it constituted an unduly restrictive holding. McSwain, The Texas Business Homestead, 15 Baylor L.Rev. 39, 42 (1963). Several courts of civil appeals have reached the same conclusion in dicta, although the mere fact of non-contiguity never seems to have been the controlling consideration. See, e. g. Campbell v. First National Bank in Lubbock, 88 S.W.2d 1084 (Tex.Civ.App.1935, writ ref’d); Harrington v. Mayo, 61 Tex.Civ.App. 610, 130 S.W. 650 (1910, no writ); Parrish v. Frey, 18 Tex.Civ.App. 271, 44 S.W. 322 (1898, writ ref’d).

The holding that mere non-contiguity of lots will defeat the business homestead exemption is not compelled by either the literal language of the constitution or the Campbell and Rock Island cases. The constitutional definition of “lots used as a place * * * of business” is not expressly limited to contiguous lots. Since two adjacent lots with two buildings could clearly be exempted as business homestead, Rock Island Plow Co. v. Alten, supra, there is no logical reason why two non-contiguous lots collectively used as a place for the exercise of a single business cannot similarly be exempt.

We are further persuaded to this conclusion by the use of the wording “lot or lots” in the constitution. “Lots” for homestead purposes are tracts of land designated by use, and the word is not limited to the boundaries of platted lots of a city or subdivision. Hargadine v. Whitfield, 71 Tex. 482, 9 S.W. 475 (1888). Thus a tract of platted contiguous lots would be “a lot” for homestead purposes, and the constitutional exemption of “lots” would be meaningless if contiguity were required.

We hold, therefore, that the business homestead exemption may extend to two non-contiguous lots when such lots are used as a place for the operation of the business of the head of a family, and both are essential to and necessary for such business, not merely being used in aid of the business,

In a hearing on an application for a temporary injunction, the only question before the trial court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). Since we have held that the fact that the lots are not contiguous does not, standing alone, prevent their being “a place” of business for homestead purposes, and since the Fords adduced evidence at the hearing for temporary injunction to support their contention that both lots were actually and necessarily used as a place for the operation of the plumbing business, no abuse of discretion by the trial court was shown.

The judgment of the Court of Civil Appeals reversing in part the judgment of the trial court and remanding the cause for further proceedings in accordance with its opinion is reversed, and the judgment of the trial court is affirmed.

GRIFFIN, J., dissenting.

DISSENTING OPINION

GRIFFIN, Justice.

I respectfully dissent. I agree with the holding of the Court of Civil Appeals in this case. 417 S.W.2d 448.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    S.W. DOUGHERTY et al., Petitioners, v. C. J. HUMPHREY, Independent Executor et al., Respondents.
    No. B-499.
    Supreme Court of Texas.
    Feb. 28, 1968.

      J. E. Thompson, S. R. Lenning, Jr., and David E. Holt, Pampa, for petitioners.
    Sanders, Scott, Saunders, Brian & Humphrey, Robert H. Smith, Amarillo, for respondents.
   SMITH, Justice.

This is a suit between the heirs of J. W. Dougherty over the ownership of personal and real property. J. W. and Callie Dough-erty were the parents of six children — S. W. Dougherty, Leola Dougherty Williams, Basil Dougherty, Callie Lee Dougherty Mann, Vera Dougherty Bidwell, and Nellie May Woods. Before the institution of this suit, Nellie May Woods died leaving as survivors, three children — Booth Woods, Alvis Woods, and Dorothy Woods Dyer. J. W. and Callie Dougherty executed a joint will in 1939, which basically provided that the survivor would have a life estate in all of the property and, on the survivor’s death, the property would be divided equally among the children. Callie died in 1942. This joint will was duly probated in the Probate Court of Wheeler County, Texas. Thereafter, in 1948, J. W. Dougherty married Nona Cousins. In March, 1966, J. W. executed another will, the terms of which recognized that Callie’s ½ of the real property passed by the 1939 will but provided that J. W.’s of the property would pass to only one of the above-named children, Vera Dougherty Bidwell.

In April, 1966, J. W. Dougherty died. His new will was duly offered for probate; C. J. Humphrey qualified as Independent Executor and was administering the estate of J. W. Dougherty at the time this suit was filed. Petitioners, four of the above-named children, and the three children of Nellie May Woods,® filed this declaratory judgment action against the respondents seeking a judgment declaring the rights of the parties under the alleged joint and mutual will of J. W. and Callie Dougherty. The prayer of petitioners sought a distribution of the assets of the estate of J. W. Dougherty in accordance with the terms of the 1939 will instead of in accordance with the 1966 will. The respondents in their original answer specially pleaded that petitioners lost all of their interest in the real property in question in a trespass to try title suit in 1956; consequently, the disposition of the real property by J. W. Dougherty under the 1966 will, executed subsequent to the death of Callie Dougherty, should be upheld. As to the personal property in controversy, respondents pleaded that all of the personal property in the estate of J. W. Dougherty was acquired after the death of Callie Dougherty and that the personal property acquired during his marriage to Callie Dougherty had been completely exhausted and disposed of.

At trial petitioners filed a motion for partial summary judgment in which they prayed that the real property in controversy be awarded to them as provided by the 1939 will. Petitioners did not request in their motion an adjudication of the personal property because, in their view, there was a fact issue over the proper disposition of the personal property which should be determined at a hearing on the merits. The respondents filed a motion for summary judgment in which they prayed that petitioners take nothing and that all of the property, both real and personal, belonging to J. W. Dougherty be permitted to pass by his 1966 will. The trial court granted petitioners’ motion for partial summary judgment, thereby awarding to each of J. W. Dougherty’s living children a ⅜⅛ interest in the property in controversy and to Nellie May Woods’ children a ¾8⅛ interest each in the property, as provided by the terms of the 1939 joint will. However, the trial court granted that portion of the respondents’ motion for summary judgment which prayed that petitioners take none of the personal property. All parties appealed. The court of civil appeals affirmed that portion of the trial court’s judgment pertaining to the personal property but reversed the judgment of the trial court pertaining to the realty. 420 S.W.2d 450.

The court of civil appeals was of the view that the property should pass in accordance with the 1966 will and vested the title to the real property in question as follows: ⅛6 interest to Vera Dougherty Bid-well; ⅜6 interest each to S. W. Dougherty, Callie Lee Dougherty Mann, Leola Dougherty Williams, and Basil Dougherty; ⅜6 interest each to Booth Woods, Alvis Woods, and Dorothy Woods Dyer. Petitioners have not appealed from that portion of the judgment of the court of civil appeals adjudicating all of the personal property of J. W. Dougherty to Nona Cousins Dougherty; consequently, the only matter before this Court is the disposition of the realty.

Petitioners contend that the 1939 will was a contractual will and that while J. W. Dougherty could make a later will, he could not defeat by this later will the rights of the beneficiaries under the first will. The court of civil appeals held that the rights to the property were to be determined “solely by the last [1966] will executed by J. W. Dougherty.” The first reason given for that holding was that the 1939 will showed upon its face that there was an irreconcilable conflict between the first and third paragraphs of the will and that the third paragraph, as the last expression of the testator, must prevail. The pertinent portions of the will are as follows:

“It is our will and desire that the survivor of us, J. W. Dougherty or Callie Dougherty, as the case may be, shall, with the rights and authority below given, have all the estate of every description, real, personal, or mixed, which either or both of us may own, to be used, occupied, enjoyed, conveyed and expended by and during the life of such survivor, as such survivor shall desire, and that upon the death of such survivor any of such estate then remaining shall be divided equally among the persons following: Mrs. Nellie May Woods, Mrs. Vera Bid-well, Mrs. Leola Williams, Miss Callie Lee Dougherty, Sam Dougherty and Basil Dougherty.
“It is our further will and desire that should any of the above named children predecease the final survivor, of this "our last will and testament, then and in that event the portion of interest of such deceased child or children shall pass to and vest in the heirs of the body of such deceased child or children. In the event such deceased child or children has no blood heirs, then such portion of their interest shall be divided equally among the surviving children enumerated in paragraph II above. Provided, however, if Mrs. Vera Bidwell should die before final settlement and division of the estate is completed, then and in that event Basil Dougherty is hereby designated and appointed as trustee to care for and manage the interest of the children of Mrs. Vera Bidwell until said children shall have become twenty-one (21) years of age.
“It is our further will and desire that in the event Callie Dougherty predeceases J. W. Dougherty, said J. W. Dougherty is hereby and herewith fully vested with all the right, title, and interest belonging to the said Callie Dougherty which she can legally convey in the entire estate. Should however, J. W. Dougherty predecease his wife, Callie Dougherty, then and in that event, Basil Dougherty is hereby named as co-executor of said estate, to have, hold and exercise equal power and authority as executor together with the surviving spouse, Callie Dough-erty as co-executrix, from neither of whom bond shall be required.”

The court of civil appeals applied the rule that when there is a conflict among provisions in a will, the last clause in the will controls. That rule is only applicable when it clearly appears that the clauses conflict and can not be reconciled. In our judgment, construing the will from its four corners, these paragraphs can be harmonized. The first clause in the will outlines a clear and comprehensive plan on the part of J. W. and Callie Dougherty for disposition of the entire estate “of every description, real, personal or mixed, which either or both of us may own * * * and that upon the death of such survivor any of such estate then remaining shall be divided equally among” the six children of their marriage. Under the first paragraph of the will, J. W. Dougherty was empowered to use the property in any way he chose while he lived. He was given the power to manage the property as he saw fit. He could have even sold it under the provisions of the will, but he was still bound to leave the property remaining at his death to the six named children. The third paragraph of the will, after repeating the interest J. W. had in the property if Callie died first, established that one of the children would be a co-executor of the estate with Callie if J. W. were the first to die. One would not expect to find in a paragraph, which provides in part for a co-executor, a sentence that would vitiate the general scheme of the entire will. The third paragraph was inserted to provide at most for an executor of the estate and was not meant to enlarge the estate which the survivor would receive under the terms of the will as a whole.

The second reason that the court of civil appeals held that the property in question must pass by the 1966 will was because petitioners had lost their claim to the property in a trespass to try title action. The trespass to try title action arose as follows: In 1948, after qualifying as executor under the 1939 will and after accepting the terms of said will, J. W. Dougherty executed a deed conveying to his children above-named all of the real property disposed of in the 1939 will. Later, J. W. Dougherty filed suit against his children seeking to rescind and cancel the deed. His children answered and filed a cross-action in trespass to try title against their father. In 1956, a judgment was entered in this cause canceling the deed and ordering the children to take nothing in their trespass to try title cross-action. The children did not appeal; therefore, this judgment became final. According to the court of civil appeals, since petitioners put in issue the title and possession of the land in the trespass to try title cross-action and since a take nothing judgment was rendered against them, any interest that petitioners .might have in the property was extinguished and all of the title to the real property became vested in J. W. Dougherty; hence, the property passed by the 1966 will.

In our view, whether or not the petitioners lost all of their right, title and interest by virtue of the judgment in the trespass to try title suit depends upon the nature of the interest in the title held by the petitioners under the 1939 will at the time the judgment was entered in the trespass to try title suit. If the interest of the petitioners in the property prior to the death of their father was such as would support an action in trespass to try title, the take nothing judgment against the petitioners divested them of their interest in the land involved in this suit. We have concluded that the petitioners’ interests would not support an action in trespass to try title. Their interests under the will were • fixed by the probate of the 1939 will as of the date of Callie Dougherty’s death. Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954); Capies v. Ward, 107 Tex. 341, 179 S.W. 856 (1915); and March v. Huyter, 50 Tex. 243 (1878). Under the provisions of the 1939 will the petitioners were to have no right of possession of the property until the death of their father.

J. W. Dougherty held the property as a life tenant with the right to dispose of the property in any way he saw fit during his lifetime. The only restriction placed upon his control of the property was that the property remaining at his death would pass to the named-children in the will. In our view, petitioners did not place this interest in issue when they filed the cross-action in trespass to try title in 1956 since they had no right of possession to the property at that time. This Court held in Moore v. Snowball, 98 Tex. 16, 26, 81 S.W. 5, 9, 66 L.R.A. 745 (1904), in passing upon a similar question, that if a person sues in trespass to try title and seeks to obtain relief which is unavailable to him in trespass to try title, he is not barred by that judgment from thereafter seeking proper relief. In the case before us now, petitioners had no rights under the 1939 will which they could assert against their father in trespass to try title. The only judgment that the trial court could have rendered in that suit was a take nothing judgment. The holdings in Permian Oil Company v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152 (1937), and other such cases, have no application here because the parties in those cases asserted rights in trespass to try title which could be adjudicated. Consequently, adverse rulings in prior suits served as res judicata to prevent later suits over the issues which had already been decided. Whereas, in the case before us, the trespass to try title action in 1956 did not and could not adjudicate the rights of petitioners to the property under the 1939 will.

The respondents assert by counter point that in the event this Court concludes to reverse the judgment of the court of civil appeals, judgment should not be rendered for the petitioners, but that judgment should be entered remanding the cause to the trial court. The basis for the contention is that there is a material issue of fact presented by the record in the trial court as to whether the 1939 will is a contractual will. We overrule this contention. If the 1939 will is to be found as being contractual in nature, such finding must be drawn from the provisions of the will itself, as the will is the only evidence of the intent of J. W. and Callie Dougherty. Our holding on this point is controlled by Murphy v. Slaton, supra. In Murphy v. Slaton, this Court stated that a will viewed as a whole can be sufficient evidence to prove that the will was executed pursuant to an agreement. In the case before us now, as in Murphy v. Slaton, the will as a whole sets forth a comprehensive plan for disposing of the entire estate of the testator and testatrix. The will not only provides for the disposition of the property upon the death of the first to die, it provides for the disposition of the property remaining at the death of the survivor. It is clear from reading the will as a whole that it was executed by the parties to carry out a planned disposition of all of the property then owned by both parties. J. W. Dougherty caused the 1939 will to be probated and accepted benefits under it. He was bound by the provisions of the 1939 will as to any property covered by the will and remaining at his death.

There is one other matter presented in connection with respondents’ counter-point requesting that this cause be remanded. The respondents contend that the affidavit in support of the petitioners’ motion for partial summary judgment regarding the intent of the parties in making the will is insufficient because “it states nothing more than a conclusion based solely upon mere hearsay.” It is further contended that the affiant was an interested witness. In view of our holding that as a matter of law the 1939 will is a contractual will, all questions pertaining to the supporting affidavit are immaterial.

We come now to the judgment to be entered in this cause. As we have heretofore pointed out, the only question before us is the court of civil appeals’ disposition of the realty in controversy. Petitioners have not appealed from the court of civil appeals’ judgment adjudicating the personalty to Nona Cousins Dougherty nor have Booth Woods, Alvis Woods,, or Dorothy Woods Dyer appealed from the court of civil appeals’ judgment adjudicating their interest in the realty. Hence, we affirm the judgment of the court of civil appeals insofar as it awards all of the personalty to Nona Cousins Dougherty and a %eth interest in the realty to be divided equally among Booth Woods, Alvis Woods, and Dorothy Woods Dyer. We reverse the judgment of the court of civil appeals insofar as it pertains to the rest of the realty in question and render judgment awarding %eth of the realty to each of the following — S. W. Dougherty, Leola Dougherty Williams, Basil Dougherty, and Callie Lee Dougherty; and %eth of the realty in question to Vera Dougherty Bidwell.

All costs incurred in this Court are adjudged against the respondents.

      . S. W. Dougherty, Leola Dougherty Williams, Basil Dougherty, and Callie Lee Dougherty Mann.

      . None of these three children appealed from the judgment of the court of civil appeals; consequently, they are not petitioners in this suit.

      . Only Vera Dougherty Bidwell and C. J. Humphrey, as executor of the estate of J. W. Dougherty, are respondents here. Originally, Nona Cousins Dougherty, the surviving wife of J. W. Dougherty; James Bidwell; Dorothy Woods Dyer; and C! J. Humphrey, individually, were joined as party defendants. However, Dorothy Woods Dyer, on her request, was realigned as a party plaintiff in the trial court. C. J. Humphrey, individually, and James Bidwell were dismissed from the suit as not being proper or necessary parties. No one appealed from the portion of the judgment of the court of civil appeals adjudicating Nona Cousins Dougherty’s interest; consequently, she is not a respondent here.


author: STEAKLEY, Justice.

text:
    Robert H. HUGHES, Petitioner, v. The ATLANTIC REFINING COMPANY et al., Respondents.
    No. B-426.
    Supreme Court of Texas.
    Feb. 14, 1968.
    Rehearing Denied March 20, 1968.

      Holloway & Hunt, Pat S. Holloway, Robert H. Hughes, Dallas, B. R. Reeves, Palestine, for petitioner.
    Ramey, Brelsford, Flock & Devereux, Frank L. McClendon and Tom Ramey, Jr., Tyler, Dillard Baker and Walter B. Morgan, Houston, Shank, Irwin & Conant, Ralph B. Shank, Dallas, Cecil C. Cammack, George Conger and George K. Gilbert, Bartlesville, Okl., Spruiell, Lowry, Potter, Lasater & Guinn, Charles F. Potter, Tyler, for respondents.
   STEAKLEY, Justice.

This is an appeal in a statutory action to establish that certain described lands in Henderson County, Texas, are vacant and subject to lease. The Court of Civil Appeals affirmed the dismissal of the suit by the trial court for want of jurisdiction. 416 S.W.2d 619. We hold that Petitioner’s suit invoked the jurisdiction of the district court but is subject to abatement because of the lack of necessary parties; accordingly, we reverse the judgments below and remand the cause.

Article 5421c, Section 6, Vernon’s Annotated Texas Civil Statutes, is the governing statute. It does not appear to be disputed that Petitioner complied with its provisions in his application dated February 5, 1962, to the county surveyor of Henderson County and to the Commissioner of the General Land Office to lease the described lands as unsurveyed vacant lands belonging to the public school fund. The statute requires the application to “state the names and addresses of all owners or claimants of land or any interest therein and of leases of any character thereon, adjoining, overlapping, or including the land claimed to be vacant * * * [and] shall also state the names and addresses of all persons who, from facts known to the applicant, assert any right to said alleged vacant land * * Petitioner’s application listed fifty-two such persons and corporations, and it is not questioned that such named interested parties were duly notified by the Land Commissioner in conformity with the statute. The Commissioner found after hearing that no vacancy existed, and on July 1, 1965, notified Petitioner of the rejection of his application.

On September 24, 1965, and within ninety days as required by Subsection (d) of the statute, later quoted, Petitioner filed this suit in the district court of Henderson County for the statutory purpose of litigating the question of the existence of the alleged vacant unsurveyed lands. He named the following as defendants in the suit:

(1) The Atlantic Refining Company
(2) Humble Oil & Refining Company
(3) Cities Service Petroleum Company
(4) Amerada Petroleum Corporation
(5) Hunt Petroleum Company
(6) Josie E. Evans and husband, T. D. Evans
(7) William E. Bruton
(8) Mrs. Zenia Miller
(9) Jerry Sadler as Commissioner of the General Land Office of the State of Texas
(10) The unknown heirs, the unknown stockholders and the unknown beneficial interest holders under any of the above persons or corporations.

The State of Texas was also named as a party defendant, and both the Attorney General of Texas and the Commissioner of the General Land Office were served with citation. Petitioner did not specifically name forty-two of the persons previously listed in his application to the county surveyor and to the Commissioner of the General Land Office as asserting rights to the alleged vacant lands. Instead, Petitioner alleged the following: “The above named persons, entities and corporations [those listed above], together with others who may claim or assert some right or interest in the lands involved in this suit, constitute a class so numerous as to make it impractical to bring them all before the Court. The rights sought to be enforced in this suit by Plaintiff against such class are of the character specified in Rule 42(a) of the Texas Rules of Civil Procedure. The above named persons * * * will fairly insure the adequate representation of the class constituting all persons asserting or claiming any right or interest of any character whatsoever in any of the lands involved in this suit, and this suit is brought against the above named persons, entities and corporations, both individually and as representatives of such class.”

Some of the named defendants filed formal answers; others originally filed pleas in abatement alleging the absence of necessary parties which pleas were subsequently amended to include motions to dismiss for want of jurisdiction; still other defendants originally filed motions to dismiss and pleas in abatement. The motions to dismiss the suit for want of jurisdiction were granted by the district court, and the suit was dismissed. As mentioned, the Court of Civil Appeals affirmed this action of the trial court.

Subsection (d) of Section 6 of Article 5421c provides:

“(d) If the Commissioner should decide that the area so alleged to be a vacancy is not vacant, then the Commissioner shall so endorse said application and file it with his finding, and shall promptly notify the applicant of his finding by registered mail, and shall file all reports and papers received in connection with said application, and then shall take no further steps with respect to same unless the existence of the alleged vacant area shall have been determined by a Court of competent jurisdiction. Thereupon, the applicant’s application and all preference rights acquired thereby, to buy, or lease, such alleged vacancy shall become null and void, unless within a period of ninety (90) days after the mailing of such notice the applicant shall file suit in the District Court of the county wherein any part of such land is located, for the purpose of litigating the question of the existence of a vacant unsurveyed area.”

Under these statutory provisions, a rejected applicant may keep the vacancy application alive for determination by a court of competent jurisdiction by the act of filing suit within ninety days in the district court where the lands are located. The court is thereupon vested with jurisdiction of the subject matter of the cause. Jurisdiction is acquired by the filing of the petition where the subject matter of the suit is within the jurisdiction of the court. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, at p. 1069. “With us the petition is the commencement of the suit.” Little v. Marler, 8 Tex. 107, at p. 109. “The suit was filed when the petition was filed with the clerk.” Powers v. Temple Trust Company, 124 Tex. 440, 78 S.W.2d 951, at p. 952. There is no claim that Petitioner’s suit naming as defendants the State and the more substantially interested parties was a sham or lacking in bona fides. Cf. Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, at p. 737. The statute does not prescribe as a condition to the attachment of jurisdiction of the subject matter of a suit filed in the proper district court that all parties named in the vacancy application, or all who might otherwise be necessary parties, shall be named in the petition at the time the suit is filed or within ninety days of the adverse finding of the Commissioner. There is no reasonable basis for reading such jurisdictional limitations into the statute by implication. The most that can properly be said is that a vacancy appeal suit otherwise in conformity with the express requirements of the statute is subject to abatement pending the naming of all necessary parties and the acquisition of personal jurisdiction over them. Such is the situation here. Article 5421c does not specify the parties against whom the authorized suit is to be filed. Nor is it expressly stated that there shall be parties defendants. So it is obvious that these essential requirements must be read into the statute, and logic leads to the conclusion that the parties who are required to be named in the vacancy application are necessary parties in the statutorily authorized suit unless they have disposed of their interest. Elms v. Giles, 173 S.W.2d 264, 269 (Tex.Civ.App. Texarkana 1943), the opinion in which was approved by this Court, 141 Tex. 446, 174 S.W.2d 588. It would be anomalous to say otherwise. Such parties were originally named by the applicant because they were asserting rights in the alleged vacant lands. A party whose interest is such that he is required by the statute to be named in the vacancy application as entitled to receive notice and to be heard cannot be otherwise than a necessary party in the statutory suit to litigate the question of the existence of vacancy. As to these parties, the class action procedure authorized by Rule 42(a) may not be utilized.

It is here that Respondents urge a fatal infirmity in Petitioner’s suit. They argue that since the petition did not name forty-two of the parties named by Petitioner in his vacancy application, the statutory suit as to these unnamed but necessary parties was not filed within ninety days, from which it follows that the application became null and void under Subsection (d). But as we have held, this would impose a jurisdictional limitation not found in the statute; moreover, were the statute so construed, an omission of only one of the application-named parties within the ninety days, inadvertently or otherwise, would defeat the right to court determination of the vacancy question. We do not believe this to have been the legislative intent. The more reasonable construction of the statute is that the filing of a bona fide suit within the ninety-day period vests the court with jurisdiction of the subject matter with the usual power in the court to decide the question of necessary parties and to abate the suit until all are made parties defendant. The cause is remanded to the trial court for this purpose.

In this connection, and although the full question is not ripe for decision at this stage, it should be noted that the record reflects that the lands claimed to be vacant were included in what is identified as the Fairway Field Unit under an agreement entered into on October 1, 1963, a point in time between the filing of Petitioner’s application for lease of the alleged vacant lands on February 2, 1962, and the filing by Petitioner of this suit on September 24, 1965. Petitioner filed a sworn pleading on May 11, 1966, labeled “Plaintiff’s Answer to Defendants’ Dilatory Pleas” in which he alleged that “Plaintiff does not know exactly how many royalty owners, mineral owners, owners of overriding royalty interests, and surface owners exist in the Fairway Field Unit, but Plaintiff believes there are in excess of 5,000 thereof and knows there are more than 1,000 thereof. All the owners of working interests, royalty interests mineral interests and overriding royalty interests in the Fairway Field Unit Area are or may .be necessary parties to this suit. * * * ” Whatever may be the ruling of the trial court upon these matters following the ordered remand of this cause for the reasons we have stated, we here hold in the interest of expedition of the proceedings that utilization of the Rule 42(a) class action procedure as to these intervening developments is not precluded by our ruling that such is inapplicable to those parties named by Petitioner in his vacancy application, all of whom we have held are necessary parties defendant. This is a matter addressed to the judgment of the trial court and thereafter subject to appellate review. See in this connection Matthews v. Landowners Oil Association, 204 S.W. 2d 647 (Tex.Civ.App.-11947, writ ref’d n.r.e).

The judgments below are reversed and the cause is remanded to the trial court with instructions to reinstate the suit for further proceedings not inconsistent with this opinion.

      . Subsection (j) requires service of a copy of the petition upon the Attorney General and the Land Commissioner within thirty days.


author: PER CURIAM.

text:
    FANNIN BANK et al., Petitioners, v. Delma Faye BLYSTONE, Respondent.
    No. B-476.
    Supreme Court of Texas.
    Feb. 21, 1968.

      Reynolds, White, Allen & Cook, Grant Cook, William A. Paddock, Houston, for petitioners.
    Rachel Johnson, Pasadena, for respondent.
   PER CURIAM.

During the pendency of a divorce action, the husband without the wife’s knowledge, executed a deed of trust on community property which was later sold at a trustee’s sale. The wife sued Fannin Bank, the purchaser, to recover the property because she had no notice of her husband’s execution of the deed of trust which she alleged was executed by her husband in fraud of her rights. The trial court rendered judgment for the wife, and on appeal the court of civil appeals affirmed the judgment. 417 S.W.2d 502. The intermediate court based its affirmance upon article 4634, Vernon’s Ann.Civ.Stats., holding that the pendency of a divorce action had the force of a lis pendens notice even in the absence of compliance with article 6640, Vernon’s Ann.Civ.Stats. The holding was not necessary to the result, since the trial court made findings of fact and concluded that the Fannin Bank, as purchaser, had notice of the wife’s interest in the real estate which was in litigation, and therefore knew or should have known that it could not rely upon the acts of the husband as manager of the community property. Petitioner Bank urges that there is no evidence to support the findings about notice, but our examination of the record convinces us that there were facts and inferences from which the bank should have known it could not rely upon the husband’s signature. It is therefore unnecessary in this case to determine whether the mere pendency of a divorce action renders compliance with article 6640 unnecessary.

We overrule petitioners’ motion for rehearing on our order refusing the application for writ of error, no reversible error.


author: GREENHILL, Justice.

text:
    Emmit E. FISHER, Petitioner, v. CARROUSEL MOTOR HOTEL, INC., et al., Respondents.
    No. B-342.
    Supreme Court of Texas.
    Dec. 27, 1967.

      Ben G. Levy, Houston, for petitioner.
    Vinson, Elkins, Weems & Searls, Ray-Wuhte-Phaffipson, Jr. and B. Jeff Crane, Jr., Houston, for respondents.
   GREENHILL, Justice.

This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate- defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.

The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.

The jury found that Flynn “forceably dispossessed plaintiff of his dinner plate” and “shouted in a loud and offensive manner” that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.

The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956) ; Restatement of Torts 2d, §§ 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:

“The interest in freedom from intentional and unpermitted contacts witlrthe plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”

Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. “To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking dr snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.” Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941).

Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed “an assault or trespass upon the person” by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant “dispossessed plaintiff of the book” and caused her to suffer “humiliation and indignity.”

The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d § 18 (Comment p. 31) as follows:

“Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.”

We hold,. therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

In Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81 (1953), this Court refused to adopt the “new tort” of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d § 46(1). However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts “which are recognized as torts and actionable independently and separately from mental suffering or other injury.” 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d § 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.

We now turn to the question of the liability of the corporations for exemplary damages. In this regard, the jury found that Flynn was acting within the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question. There is no attack upon these jury findings. The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. It is argued that there is no evidence to support this finding. The jury verdict concluded with a finding that $500 would “reasonably compensate plaintiff for the malicious act and wanton disregard of plaintiff’s feelings and rights. * * * ”

The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the employer or a manager of the employer ratified or approved the act.

The above test is set out in the Restatement of Torts § 909 and was adopted in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950). At the trial of this case, the following stipulation was made in open, court:

“It is further stipulated and agreed to by all parties that as an employee of the Carrousel Motor Hotel the said Robert W. Flynn was manager of the Brass Ring Club.”

We think this stipulation brings the case squarely within part (c) of the rule announced in the King case as to Flynn’s managerial capacity. It is undisputed that Flynn was acting in the scope of employment at the time of the incident; he was attempting to enforce the Club rules by depriving Fisher of service.

The rule of the Restatement of Torts adopted in the King case set out above has four separate and disjunctive categories as a basis of liability. They are separated by the word “or.” As applicable here, there is liability if (a) the act is authorized, or (d) the act is ratified or approved, or (c) the agent was employed in a managerial capacity and was acting in the scope of his employment. Since it was established that the agent was employed in a managerial capacity and was in the scope of his employment, the finding of the jury that the Carrousel did not authorize or approve Flynn’s conduct became immaterial.

The King case also cited and relied upon Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). In that case, it was held not to be material that the employer did not authorize or ratify the particular conduct of the employee; and the right to exemplary damages was supported under what is section (b) of the Restatement or King rule: The agent was unfit, and the principal was reckless in employing [or retaining] him.

After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight [no authorization or approval of Flynn’s conduct on the occasion in question] and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.

The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.


author: ONION, Judge.

text:
    Fred FENNELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40830.
    Court of Criminal Appeals of Texas.
    March 6, 1968.

      Ray Epps, John Cutler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joe S. Moss, James C. Brough, Wells Stewart and J. Robert Musslewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

ONION, Judge.

Our original opinion is withdrawn and the following is substituted in lieu thereof.

The offense is Murder without Malice; the punishment, assessed by the trial court after a verdict of guilty, five (S) years confinement in the Texas Department of Corrections.

On original submission this cause was reversed and remanded on the grounds (1) that the facts were insufficient to show an unlawful killing and that the uncontro-verted evidence established self-defense as a matter of law, and (2) that the appellant was deprived of a fair and impartial trial by reason of fundamental error which occurred despite the lack of objection when, under the circumstances, the trial court charged only abstractly on the law of self-defense and failed to apply the law to the fact?;

On rehearing, upon further consideration, we have concluded that we were in error in holding that self-defense was established by the facts as a matter of law.

We remain convinced, however, that this cause must be reversed on the error in the court’s charge. The testimony of the State and appellant clearly and strongly raised the issue of self-defense both against an unlawful attack giving rise to apprehension or fear of death or serious bodily injury (Articles 1221, 1226, V.A.P.C.) and against a milder attack (Article 1224 P.C.).

In our original opinion we said:

“It is further observed, since self-defense was the crucial question in the case at bar, that the court charged the jury only abstractly on the law of self-defense in a single paragraph and did not apply the law to the facts. For some unexplained reason there was no objection to such charge, nor was this fact assigned as ground of error or mentioned in oral argument or otherwise. The fact remains, however, that the jury was never told that if they found from the evidence that the appellant had acted in self-defense, or if they had a reasonable doubt thereof, to acquit this appellant.
“It has been the consistent holding of this Court under the provisions of Article 36.19, V.A.C.C.P. (former Article 666) that a case will not be reversed on appeal because of an error in the charge of the court to which no objection was made, unless the error was calculated to injure the rights of the defendant or unless it appears that he has not had a fair and impartial trial. Aston v. State, [Tex.Cr.App.], 48 S.W.2d 292; Barfield v. State, [118 Tex.Cr.R. 394], 43 S.W.2d 106; McCue v. State, [75 Tex.Cr.R. 137], 170 S.W. 280; Bonds v. State, [71 Tex.Cr.R. 408], 160 S.W. 100; Coleman v. State, [68 Tex.Cr.R. 182], 150 S.W. 1177.
“It would be difficult to conclude from the circumstances already discussed and the failure of the charge to apply the law of self-defense to the facts that this appellant has had a fair and impartial trial.”

We are reinforced in our opinion by virtue of the trial court’s refusal to respond to appellant’s timely presented special requested charge to the effect that the intoxication or drinking of the deceased would not excuse his attack upon appellant or take from the appellant his right of self-defense. This was appellant’s second ground of error but was not discussed in our original opinion.

It may not have been reversible error to have refused such a charge had the appellant been given an adequate, comprehensive, complete and unrestricted instruction on self-defense, but that, of course, was not done as observed earlier. Cf. Kilgore v. State, 151 Tex.Cr.R. 123, 205 S.W.2d 779. The court’s charge as a whole did not fairly and adequately protect the rights of the appellant.

For the reasons stated, the State’s motion for rehearing is granted in part and overruled in part. The judgment is reversed and remanded.


author: MORRISON, Judge.

text:
    James HUDDLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 41095.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Roddy L. Harrison, Pecos (on appeal only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with two prior non-capital convictions alleged for enhancement; the punishment, life.

Appellant’s first and second grounds of error relate to the sufficiency of the evidence.

The accomplice witness Christopher testified that while driving around after bar-closing hours on the night in question, he and appellant picked up one Copeland, and that Copeland and appellant began to talk' about breaking into a certain bar which Copeland had been frequenting and in which Copeland had observed where the money was kept., He stated that he let Copeland have a tire tool and a screw driver and dropped him off near the bar, which was later shown to have been burglarized. He stated further that after several trips in Tiis automobile as they again passed the “bar, appellant, who was then driving, heard :a whistle and stopped to pick up Copeland in accordance with their previous agreement. He stated that the three went to his house and split the proceeds of the burglary. He and appellant got $64.00 and Copeland got $64.00 and all of the loose change. Soon .after this, he and appellant dropped off 'Copeland and were arrested by Officer Plores. According to his version of the transaction, when the officer turned on "his light, appellant sped up the automobile •saying that he was not going to stop because of the money which he had and at the same time appellant threw some rolls of coins •onto the floorboard of his automobile. "When they were finally brought to a halt, Officer Flores asked to whom the money rolling around on the floorboard belonged, and appellant answered that it belonged to the witness and refused to pick up the same.

It was shown by Officer Flores that he arrested appellant and Christopher on the night in question and recovered the rolls of coins, and that as he was booking appellant, lie (appellant) placed a gold colored Zippo •type cigarette lighter on the booking desk.

The operator of the burglarized bar testified that she lost several rolls of coins in •the burglary, and that the cigarette lighter identified as State’s Exhibit # 1 had been left in her bar by a patron and was later returned to her by an investigating officer.

Appellant did not testify in his own behalf, but recalled Christopher, who admitted that he had not seen State’s Exhibit I# 1, “a gold colored cigarette lighter with Hi-Way Welding, Box 386, Wickett, Texas, Pho WI 3-2063” on it in appellant’s possession on the night in question.

No objections were made to any of the evidence hereinbefore set out.

We have concluded that the evidence including the cigarette lighter being in appellant’s possession is sufficient to sustain this verdict. See Alexander v. State, 170 Tex.Cr.R. 282, 340 S.W.2d 493.

Appellant’s third ground of error is that “fundamental error was committed when the officer arrested Defendant failed to charge or explain to Defendant his Constitutional Rights at the time * * * ”

Reliance is had upon the holding of the Supreme Court of the United States in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Since no confession of appellant was offered in evidence, other than the statements shown above which were admitted without objection, the holding in Miranda, supra, has no bearing on the case at bar.

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


author: WOODLEY, Presiding Judge.

text:
    Jimmie Lee HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40474.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.

      Cayton & Gresham by Willis E. Gresham, Jr., Lamesa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The record on appeal was approved by the trial judge by order dated October 9, 1967, and filed January 12, 1968. The record as approved reflects that sentence was pronounced on March 21, 1967.

The only notice of appeal shown by the record was given on May 10, 1966. Such notice is included in the order overruling the motion of the defendant to set aside the verdict and judgment and grant him a new trial, entered and rendered May 25, 1966.

Art. 44.08(a) Vernon’s Ann.C.C.P. provides :

“It shall be necessary for the defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal.”

Art. 44.08(c) provides that in cases such as this notice shall be given or filed within ten days after sentence is pronounced. See Rosenbaum v. State, Tex.Cr.App., 409 S.W.2d 406; Herbort v. State, Tex.Cr.App., 422 S.W.2d 456; and Pointer v. State, Tex.Cr.App., 422 S.W.2d 439.

The appeal is dismissed.


author: DICE, Judge.

text:
    Bobby HOLCOMBE, Appellant, v. The STATE of Texas, Appellee.
    No. 40940.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.
    Rehearing Denied March 20, 1968.

      Ronnie Gaines, Perryton, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for burglary; the punishment, enhanced under Article 63, P. C., by virtue of two prior convictions for felonies less than capital, life imprisonment.

Trial was on August 20, 1963, and judgment was rendered by the court on such •date.

An appeal to this court was dismissed •on March 4, 1964, because of the absence of a sentence in the record. Holcombe v. State, Tex.Cr.App., 375 S.W.2d 914.

On January 30, 1967, an order was entered in Civil Action No. 65-H-543 by Judge Joe Ingraham in the United States District Court for the Southern District of Texas, Houston Division, directing that appellant be returned to the District Court of Ochiltree County for re-imposition of sentence or for such other steps necessary •to afford him an adequate review of his •conviction.

Pursuant to such order, appellant was returned to the District Court of Ochiltree County and, after an attorney was appointed to represent him, was sentenced on April 28, 1967, to life imprisonment in the Texas Department of Corrections under the original judgment of conviction.

From such sentence appellant duly excepted and gave notice of appeal to this court.

The indictment, after charging the primary offense of burglary, alleged four prior felony convictions for enhancement of the punishment.

In paragraphs two, four, and five, the indictment alleged convictions in the State of Oklahoma and in each instance alleged that the conviction was upon information. In paragraph three, the indictment charged a conviction in the State of Texas upon an indictment legally pending in the District Court of Dallam County.

At the trial, proof was made by the state of the four prior convictions alleged, and appellant admitted while testifying as a witness that he was the same person convicted in the four prior cases.

The court, in his charge, instructed the jury that appellant had been legally convicted in the District Court of Cleveland County, Oklahoma, in Cause No. 4238, of the offense of burglary in the second degree, as alleged in the second paragraph of the indictment, and also had been duly and legally convicted in the District Court of Dallam County, Texas, in Cause No. 1779, of forgery, as charged in the third paragraph of the indictment, and that if the jury found appellant guilty of the offense of burglary as charged in the first paragraph of the indictment then they would find that each and all the allegations set out in the second and third paragraphs of the indictment were true.

In their verdict, the jury so found and, based upon such verdict, judgment was rendered by the court and appellant was sentenced to life imprisonment, pursuant to the provisions of Art. 63, supra.

In his brief, appellant challenges the sufficiency of the evidence to authorize enhancement of his punishment under Art. 63, supra, because the prior felony conviction in the State of Oklahoma used for enhancement was upon information and no proof was offered by the state showing that such prosecution was authorized by the laws of Oklahoma.

In support of his contention, appellant relies upon Art. 1, Sec. 10, of the Constitution of this State, Vernon’s Ann.St., which provides that no conviction for a felony may be had in this state unless upon an indictment. He further relies upon the rule that in the absence of a showing to the contrary it will be presumed that the laws of a sister state are the same as those of this state. Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; Green v. State, 165 Tex.Cr.R. 46, 303 S.W.2d 392; Melancon v. State, Tex.Cr.App., 367 S.W.2d 690.

Recently, in Melancon v. State, supra evidence was held insufficient to sustain enhancement of punishment under Art. 63, supra, for reasons similar to those urged by appellant.

Under the record, appellant’s conviction with punishment enhanced under Art. 63, supra, cannot stand.

We do not agree with the state’s contention that under the case of Sistrunk v. State, 169 Tex.Cr.R. 74, 331 S.W.2d 323, appellant’s admission of his two prior convictions constituted sufficient proof thereof. His mere admission that he had been convicted in Oklahoma in the case alleged and used for enhancement did not constitute proof that the laws of Oklahoma authorized prosecution for a felony upon information.

We observe that upon another trial, under the provisions of Art. 36.01, C. C.P., that portion of the indictment alleging prior convictions for enhancement should not be read to the jury until the hearing on punishment provided in Art. 37.07, C.C.P. Further, at the hearing on punishment, in the event appellant elects to have the jury assess punishment such portions of the indictment should not be read or proof offered in support thereof unless and until it is first determined by the court that the prior convictions are valid and admissible in evidence. See: Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

The judgment is reversed and the cause is remanded.


text:
    M. B. CROWDER, Appellant, v. The STATE of Texas, Appellee.
    No. 41112.
    Court of Criminal Appeals of Texas.
    March 6, 1968.

      Donald D. Koons, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Charles L. Caperton, Arch Pardue and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Appellant’s attorney on appeal asserts as his ground of error # 1 that the court erred in his charge to the jury. No objections were presented to the trial court, and nothing is presented for review. Barfield v. State, 118 Tex.Cr.R. 394, 43 S.W.2d 106; McCue v. State, 75 Tex.Cr.R. 137, 170 S.W. 280; Bonds v. State, 71 Tex.Cr.R. 408, 160 S.W. 100; and Coleman v. State, 68 Tex.Cr.R. 182, 150 S.W. 1177. See also Robles v. State, Tex.Cr.App., 411 S.W.2d 729.

He next contends that it was error for the trial court to accept his assurances that he was the same person who had been convicted in the two prior convictions alleged for enchancement without giving the accused the warning as provided by Art. 26.13, Vernon’s Ann.C.C.P. Such Article does not apply to the punishment portion of the trial. In this case the appellant chose the court to set his punishment, and after the prison records showing such convictions were introduced, appellant’s counsel stated, “We are pleading guilty on the second and third paragraphs”, and appellant spoke up and said, “Those are my two cases.” No error is shown.

Our holding that Art. 26.13, supra, does not apply to the hearing on punishment disposes of appellant’s last contention as to the manner of proving the prior convictions.

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Judge. DICE, Judge. ONION, Judge.

text:
    Lusclous Calvin MAXEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40845.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    As Amended Feb. 7, 1968.
    Rehearing Denied Feb. 7, 1968.
    Second Rehearing Denied March 20, 1968.
    Jan E. Hemphill, Dallas, for appellant.
    Henry Wade, Dist. Atty., Cecil Emmer-son, Joe K. Hendley and Kerry P. FitzGer-ald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary with two prior non-capital felonies alleged for enhancement; the punishment, life.

The sole ground urged for reversal is that the evidence is insufficient to support the conviction for the primary offense of burglary.

Mrs. Vernon King testified that while she was the assistant caretaker of a convalescent hospital, located about one mile north of Highway 75, about 8:45 a. m., March 31, 1966, she saw from a window, the appellant walk up the steps of the building and return down them and then go around the corner of the building; that she notified the police who came in a brief time; that on inspecting the building she found a broken window; and that the windows in the building were inspected daily.

Deputy Sheriff Chennault testified that while driving along Highway 75 about 8:58 a. m., March 31, 1966, he received a suspicious person call at a convalescent home om Highway 75; that he went to the convalescent home, talked with Mrs. King, and them he found the top pane broken on the northeast corner of the building; that at this time he heard a loud noise which sounded like someone hammering on something inside the building; that on looking into the basement he saw the appellant with an object in his; hand hitting on the refrigerator unit; that the appellant in response to his direction: came out of the building carrying a tire tool, a hammer, and wearing a pair of gloves r that the broken window had pry marks om the bottom.

Jake L. Ballard testified that on March 31, 1966, he was the Dallas County Building Superintendent in charge of all county-owned buildings and had the possession of the house used as a convalescent home on Highway 75; that he did not give the appellant his consent to break and enter said house, and never gave the appellant his consent to take any property from the house.

Proof of two prior convictions for felonies less than capital which were alleged for enhancement was introduced, and the appellant was identified as the person so convicted.

It is concluded that the evidence is sufficient to support the conviction.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant insists that we were in error in holding the evidence sufficient to sustain the conviction, because the state failed to prove that the house broken into and entered was occupied and controlled by J. L. Ballard, as alleged in the indictment. Specifically stated, it is appellant’s contention that the proof fails to show ownership of the house burglarized, as alleged.

The proof as reflected by the testimony shows that appellant broke into and entered a house on Highway 75 in Dallas County which was being used as a convalescent home.

Jake L. Ballard, the alleged owner of the house, testified that he was the Dallas County building superintendent in charge of all county-owned buildings and that he had the care, custody, and control of '“the” convalescent home on Highway 75 in Dallas County.

There is an entire absence of any inference in the record that there was more than one convalescent home on Highway 75 in Dallas County. While, as pointed out by appellant, the witness Ballard did not specifically testify that he had possession of the house burglarized, we remain convinced that the record as a whole is sufficient to sustain the allegation of the indictment that he did occupy and control the house burglarized and authorized the jury to so find.

In Gilbreath v. State, 158 Tex.Cr.R. 616, 259 S.W.2d 223, cited by appellant, the alleged owner of the house did not testify that he was in control and management of the building burglarized — which distinguishes it from the present case.

The motion for rehearing is overruled.

DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Judge.

I feel that in all good conscience I must dissent to the overruling of appellant’s'motion for rehearing. Appellant’s contention that the proof fails to show ownership of the house burglarized as alleged is, in my opinion, well taken.

It is the burden of the state to prove the allegation of ownership as laid in the indictment. This burden is not discharged by the likely possibility that the witnesses were all referring to the same house or building.

Mrs. King, who gave her address simply as Box 436, testified that she was the assistant caretaker of a convalescent hospital located about one mile north of Highway 75. She did not testify that such location was in Dallas County, nor did she testify that she or her husband (the caretaker) were county employees or that the building or buildings at the location were county-owned. In fact, she offered no testimony as to ownership at all.

Luther Chennault, Deputy Sheriff, testified that he received a “call of a suspicious person at the convalescent home on Highway 75.” He related that he contacted a Mrs. King upon his arrival and subsequently arrested the appellant. Other than stating that the convalescent home was in Dallas County, he did not testify as to its exact location or address or indicate that the address given in the “call” was correct. He offered no testimony as to ownership at all.

Jake L. Ballard, the alleged owner of the house, testified that as county building superintendent in charge of all county-owned buildings, he had care, custody and control of the convalescent home on Highway 75 in Lancaster. He did not indicate any personal knowledge of the burglary nor did he testify that he knew or was acquainted with the Kings or that they were county employees or were caretakers at the location to which he referred at the time in question. In fact, in his testimony he did not mention nor refer to the Kings at all.

It is true he was permitted to testify that he did not give appellant consent to break into the convalescent home under his control. There is no proof, however, that a building of which Ballard had care, custody and control was in fact burglarized. See Gilbreath v. State, 158 Tex.Cr.R. 616, 259 S.W.2d 223.

There was no evidence offered as to the number of convalescent homes or hospitals on Highway 75, one mile north thereof, or in Lancaster, or in the general vicinity; but the absence thereof does not, in my opinion, raise a presumption that there was only one such place, casting the burden upon the accused to show, at least by inference, the contrary.

If Ballard was in custody and control of the house actually burglarized, it would not have been difficult for the state to have clearly established that fact. Inadvertence or want of proper care should not be condoned under the facts presented. We should not be asked to affirm this enhanced penalty of life under these circumstances.

Being convinced that the evidence fails to sustain the ownership of the burglarized premises as alleged, I dissent to the overruling of appellant’s motion for rehearing.

Morrison J., joins me in this dissent.


text:
    Kelly SCOTT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 41113.
    Court of Criminal Appeals of Texas.
    March 6, 1968.
    Donald D. Koons, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Arch Pardue and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Appellant’s attorney on appeal asserts as ground of error # 1 that the trial court erred in admitting fingerprint comparison testimony. No objection was interposed at the time the identification officer testified, so nothing is presented for review. Barfield v. State, 43 S.W.2d 106; McCue v. State, 75 Tex.Cr.R. 137, 170 S.W. 280; Bonds v. State, 71 Tex.Cr.R. 408, 160 S.W. 100; and Coleman v. State, 68 Tex.Cr.R. 182, 150 S.W. 1177. See also Robles v. State, Tex.Cr.App., 411 S.W.2d 729.

He next contends that the court erred in his charge. No objections were presented to the trial court, and therefore, likewise, nothing is presented for review.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Isidro Sanchez OCHOA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 41096.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Pena & McDonald by L. Aron Pena, Edinburg, for appellant.
    Oscar B. McInnis, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary; the punishment was assessed at two years.

The appellant did not comply with Sec. 9 of Art. 40.09, Vernon’s Ann.C.C.P., in that he did not file a brief in the trial court setting forth the grounds of error of which he desires to complain on appeal. Hill v. State, Tex.Cr.App., 403 S.W.2d 797; Johnson v. State, Tex.Cr.App., 420 S.W.2d 728.

The grounds attempted to be presented in appellant’s brief filed in this court do not raise any constitutional questions.

Nothing appears in the record which we should consider as unassigned error under Section 13 of Article 40.09, supra.

No question of indigency is raised.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    AGRICULTURAL WORKERS MUTUAL AUTO INSURANCE COMPANY, Appellant, v. D. E. DAWSON, Appellee.
    No. 319.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 8, 1968.
    Jackson, Walker, Winstead, Cantwell & Miller, Ralph E. Hartman and Jack Pew, Jr., Dallas, for appellant.
    No brief filed for appellee.
   DUNAGAN, Chief Justice.

As the appellee has filed no brief in this case, we accept as correct the statements contained in appellant’s brief relating to the facts and the record. Rule 419, Texas Rules of Civil Procedure; Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App., 1949, San Antonio, writ ref.).

It appears from appellant’s brief that plaintiff-appellee (the insured) claiming under the “Physical Damage” coverage of an automobile insurance policy, sought indemnity from defendant-appellant (the insurer) for damage caused to his car by a collision. The case was tried before a jury which, in answers to Special Issues Nos. 1 and 2, the only issues submitted, found: (1) that the market value of appellee’s car was $3,000.00 before the collision, and (2) $900.00 after the collision, a difference of $2,100.00. There being a $100.00 deductible in the policy, the court rendered judgment on the jury’s findings for appellee and against appellant in the amount of $2,000.00 as “damages to the market value of” appellant’s car.

The controversy was and is over the amount of recovery to which appellee was entitled under the policy. The policy provided that appellant’s liability “shall not exceed” the “cost to repair” the automobile. Appellant pleaded and produced evidence that the car could be repaired and two witnesses estimated, respectively, that the cost of such repairs would be $822.56 and $1,100.00. The trial court, however, over appellant’s objections, only submitted the two Special Issues above summarized, which inquired as to the difference in market value of the car immediately before and immediately after the collision. These issues reflect the measure of liability which, under the policy involved in this case, is appropriate only “if a total loss resulted,” Riley v. National Auto Insurance Company, 162 Neb. 658, 77 N.W.2d 241, 57 A.L.R.2d 1219 (1956) — i. e., when the car cannot be restored by repairs, to substantially the condition and value it had prior to the collision. The court did not submit any issue as to whether the car was a “total loss,” nor did the court submit a Special Issue to ascertain the cost of repairing the car. In failing to submit such issues, the trial court in effect found that appellee had proved by undisputed evidence that the car was a “total loss.”

The appellant complains of the court’s action (1) in submitting, over its timely objections, the two Special Issues which inquired only as to the difference in the market value of appellee’s automobile before and after the collision, unaccompanied by a Special Issue requiring appellee to prove that the automobile was a “total loss,” in the sense that it could not be restored by repairs to substantially its condition and value prior to the collision; and (2) in refusing, over appellant’s objections, to submit a Special Issue upon the reasonable cost of restoring appellee’s automobile, by repairs, to substantially its condition and value prior to the collision.

Appellee’s action is under “COVERAGE E — COLLISION” of “PART III — PHYSICAL DAMAGE” of a standard form family automobile policy, which coverage indemnifies appellee “for loss caused by collision to” appellee’s automobile. Said PART III contains the following provisions :

“LIMIT OF LIABILITY The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property * * *.
“PAYMENT OF LOSS The Company may pay for the loss in money; or may repair or replace the damaged or stolen property * *

Appellee’s own pleadings recognized that appellant could discharge its obligation under the policy by paying the cost of repairs, for he alleged in his first amended original petition:

“III.
“That on or about March 3, 1964, said defendant wrote a policy of insurance and contracted to insure a 1963 hardtop, 4-Dr., Air-Conditioned Oldsmobile Sedan belonging to D. E. Dawson; among other things said policy of insurance provided that if such vehicle is damaged in an automobile collision it will either pay for the loss to the insured in money or repair or replace the damaged property insured therein. Said policy of insurance was No. 1948-5. Said policy provided that the defendant will pay the loss incurred less $100.00 deductible.”

Appellant also specifically pleaded that its liability under the policy was limited to the cost of repairs. Its answer stated:

“V.
“Further, in the alternative, your Defendant says that the actual cash value of the automobile and property insured by the policy in question and what it would cost to repair or replace said property is an amount considerably lower than that for which suit is brought and that this amount has been offered to said Plaintiff and that said amount is hereby in these pleadings tendered to the Plaintiff less $100.00 deductible as provided by the policy in full discharge of all liability of this Defendant herein.”

At the trial, appellee’s witness stated that, although the car could be repaired, it could not have been restored to its value before the date of the collision.

Appellant, however, presented two witnesses who testified that the car could be restored to its pre-collision value and presented estimates of the cost of such repairs.

The provisions of the policy as above set out mean that if the car cannot be restored by repairs to the condition and value it had prior to the collision (and therefore is what is sometimes described as a “total loss”), the insured is entitled to the “actual cash value” of the car, measured by the difference in the car’s market value immediately before and immediately after the collision; but if, on the other hand, the car can be so repaired, the insured is entitled to no more than “what it would then cost to repair the property.” Automobile Underwriters of America v. Radford, 293 S.W. 869 (Tex.Civ.App., Dallas, 1927, affirmed, Tex.Com.App., 299 S.W. 852); Home Ins. Co. v. Ketchey, 45 S.W.2d 350 (Tex.Civ.App., Waco, 1931, n. w. h.); Riley v. National Auto Insurance Company, supra; Roberdeau v. Indemnity Ins. Co. of North America, 231 S.W.2d 948 (Tex.Civ.App., 1950, Austin, writ ref., n. r. e.).

The burden of establishing that the car is unrepairable is on the insured; he has the burden of proving his loss under the policy; 7 Am.Jur.2d, “Automobile Insurance,” Sec. 209, (1963) and if he claims his loss is total, he has the burden of proving a total loss. Alliance Mutual Casualty Company v. Atkins, 316 S.W.2d 783 (Tex.Civ.App., Fort Worth, 1958, n. w. h.).

It seems to be well settled that before the insured, under an insurance policy such as in this case, is entitled to have his damages measured by the difference in the car’s market value before and after the collision, he must establish that the car was a “total loss.”

Under the evidence in this case, it was error for the trial court to submit the case to the jury on the sole theory that the automobile was a total loss. The jury should have been afforded an opportunity to find whether the automobile could have been repaired and replaced in substantially the same condition as before, and, if it so found, to determine the damages on that basis. The trial court’s refusal to give the jury such an opportunity was error.

For the reasons above stated, the judgment of the trial court is reversed and this cause remanded.