author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    JARRELL v. STATE.
    No. 20938.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied May 15, 1940.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in Bosque County upon a change of venue from Johnson County for the murder of W. R. (Bill) Robertson, and his punishment was assessed at ten years in the penitentiary.

This is a companion case to that of Sam Jarrell v. State, 137 S.W.2d 774, decided by this court on February 7, 1940, and the facts in the two cases are, as to all important issues,' the same. Reference is here made to the opinion in that case for a full and complete statement of the facts as well as a discussion of the questions of law, which are the same, except as hereinafter noted.

By Bill of Exception No. 1 complaint is made that while the witness, Sam Griffin, was being examined, the attorney for the defendant objected to his testimony, and the private prosecutor in the case replied to the attorney: “He has answered the question; that is a shorthand rendition of the facts. He is an honest witness. You just want the facts and the truth, don’t you?”

The defense attorney answered, “Yes”, to which the private prosecutor replied, “I don’t think you do.” This was an improper indulgence of personalities. Exception was taken, but it does not appear whether the exception was to the first statement of the attorney, which was with reference to the witness, or to his remark to the attorney, “I don’t think you do.” At any rate, the court instructed the jury not to consider the statement of the attorney. The bill does not disclose what harm appellant suffered from this tilt between the attorneys, and we are unable to see any error, which the instruction of the court did not properly cure. The bill of exception is not sustained.

We find no other matter in the case requiring consideration, and following the case of Sam Jarrell hereinabove referred to, this case is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for rehearing, takes the position that the evidence is insufficient to show murder with malice; that at most, it only shows a murder without malice. We are unable to agree with his contention. Appellant went to Venus with his brother Sam. While there, they drove to a gin where the deceased, Bill Robertson, was working at a corn sheller. When Robertson saw the appellant and his brother approaching he immediately caught a co-worker, pulled him up in front of himself as a shield against what appeared to him to be a serious danger. The co-worker also sensed the danger and made strenuous efforts to free himself and get away from what appeared to him a perilous position, in which he was successful. Robertson then looked for protection elsewhere, and when he was leaving, or about to leave, the corn sheller, Sam Jarrell, the brother of the appellant, fired at Robertson with a shotgun but missed him. He then fired the second shot as Robertson was going to an automobile but missed‘him again. Then Sam Jarrell went back to their car where the appellant was, procured a pistol and killed Robertson, who was stooping behind an automobile. The appellant and his brother then left the scene of the killing.

We think the brief summary of the facts above stated was sufficient upon which the jury could reasonably base their conclusion of the appellant’s guilt of murder with malice. We would not be authorized to hold as a matter of law, under the evidence, that the homicide was murder without malice.

Appellant next complains because we declined to sustain - his Bills of Exception Nos. 1, 2, 3, 4 and 5. We have again examined the bills.

Bill No. 1 shows that while Sam Griffin was testifying for the State he was asked by the District Attorney: “Q. Then, where did Bill Robertson go after he was fired at the second time ? A. Came around the north end of the corn sheller and around these trucks and ran in behind my car and just stooped over like a scared man.”

Appellant merely objected to the entire answer without stating any ground of objection. The State’s counsel replied: “He has answered the question; that is a shorthand rendition of the facts.”

Thereupon, a controversy ensued between counsel for the State and the appellant, as stated in our original opinion, to which appellant excepted. The court instructed the jury not to consider the remark of State’s counsel. This bill, in our opinion, is deficient. Moreover, it fails to reflect reversible error.

Bills of Exception Nos. 2, 3 and 4 have been carefully reviewed by us, and we see no error reflected, therein.

Bill No. 5 is qualified by the court who states in his qualification that the issue of self-defense was not raised; neither was the issue as to who started the difficulty, etc. The bill, as thus qualified, fails to reflect reversible error.

From what we have said it follows that the appellant’s motion for a rehearing should be overruled, which is accordingly done.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge. GRAVES, Judge.

license: Public Domain

text:
    Ex parte WHATLEY.
    No. 21072.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 15, 1940.

      B. F. Whitworth, of Linden, T. D. Ro-well, Sr., of Jefferson, and Carney & Carney, of Atlanta, for appellant.
    Lloy.d W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was charged by complaint in Justice Court, Precinct No. 3 of Marion County, with the murder of E. R. Todd who was the constable of said precinct. Upon an examining trial the Justice of the Peace remanded appellant without bail. A writ of habeas corpus was then issued by the District Judge of the 76th Judicial District,- arid' after a hearing thereunder appellant was remanded without' bail, -from which order this appeal is prosecuted.

On the day preceding the killing appellant took Mrs.' Haywood Fason in his car to visit one of her sick relatives. Deceased advised against Mrs. Fason making the trip ■ with appellant. When Mr. Fason learned that his wife had gone with appellant he (Fason) became very angry, and after the parties returned appellant stayed away where Fason could not find him. The,-next morning appellant — armed with a pistol — when to the neighborhood store where he found Fason, spoke to him in a friendly manner, and asked him to..go out and talk over the matter. Appellant assured Fason that he meant no harm in taking his wife to see her relative, and was told by Fason they would forget it, but not to let it happen again. While appellant and Fason were talking deceased walked up to where they were and the killing occurred a very few minutes later. The evidence does not indicate that appellant was expecting danger from deceased, but had reason to apprehend trouble with Fason based on the latter’s conduct the night before.

This case as it now appears from the record on this appeal turns on the sharp issue as to what occurred when deceased walked rip to appellant and Fason, and as to whether appellant or deceased made the first hostile gesture -towards the other. Deceased had his pistol in a loose scabbard under his shirt. After the shooting the pistol, still in the scabbard, was lying near deceased’s hand.

We think it not advisable to undertake any detailed statement of the evidence pro and con on the pivotal issue suggested, but from a careful review of all the testimony brought forward it occurs to us that appellant should be granted bail under the previous holdings of this court. See Branch’s Ann.Tex.P.C., Sec. 224; 5 Tex. Jur., page 817. The principles controlling are so well known no necessity arises for again re-stating them.

The judgment denying bail is reversed and bail is hereby granted in the sum of $10,000. '

On Motion for Rehearing.

GRAVES, Judge.

The county attorney of Marion County has filed a motion herein on behalf of the State containing some matters outside the record which we can not consider.

We do, however, assert that the Ross and Good cases, Ex parte Ross, Ex parte Good, 94 Tex.Cr.R. 313, 326, 328, 443, 251 S.W. 233, 234 and 235, lay down correct propositions of- law in matters relative to bail in capital cases. In those cases we held: “We call attention only to the proposition that, rherely because there may be some conflict in the evidence, or because of the presence of some testimony raising a defensive issue does not- necessarily entitle an accused to bail. Ex parte Smith, 23 Tex.App. 100, 5 S.W. 99; Ex parte Jones, 31 Texas Cr.R. 422, 20 S.W. 983.”

We do not think that this statement necessarily means that because there is a question raised only by the testimony of the person requesting bail, and the remaining testimony being void of any defensive matter, that the interested person’s testimony should be disregarded. Instead we think that all the testimony should be taken and digested for what it might seem to be worth. Thus believing, and after again reviewing the testimony in its entirety, we are impressed with the correctness of the original opinion herein,- and the motion is overruled.


author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    ODLE v. STATE.
    Na. 20955.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    Rehearing Denied May 15, 1940.
    Smith & Dowdy, of McKinney, for appellant.
    Roland Boyd, Co. Atty., and Dwight Whitwell, Asst. Co. Atty., both of McKinney, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction in Collin County assessing a fine of $100 and ten days in jail, upon an indictment alleging that on the 7th day of July, 1939, Johnnie Odie unlawfully took and .offered to take and accept and place for A. G. Sparlin a bet and wager of money in the amount- of twenty-five cents “on a baseball game, athletic contest and sports event.”

The prosecution is under Art. 652a, Sec. 1, of Vernon’s Annotated Penal Code.

Several questions are raised and those not here discussed are overruled. Bill of exception No. 1, which . complains, of the failure ,of ..the court t.o. sustain the appellant’s motion to quash the indictment, will, be first considered.. Several questions of law áre presented in. connection with this motion, but we will discuss it mofe as a general proposition.

If the offense alleged and , proven is in , violation of the bqokmaking statute above referred to, the case must, be affirmed. The facts are very complicated, made so for the evident purpose of evading the statute, but when analyzed, we find. no material difference between the case here presented and others which have been passed upon by this court, particularly Simmons v. State, 135 Tex.Cr.R. 425, 120 S.W.2d 1061.

Among othei; contentions - made is that .the purchaser of the ticket in question did not know which ball game he was betting on and consequently could not come within the statute. On the following facts^ we conclude that instead of exercising his judgment as t'o the two teams whose consolidated scores he championed, he merely took the chance on drawing. for them. After he did so, the procedure is simple and parallel to the ordinary and ,wdl-understood method of bookmaking.' ■ ■

The appellant was engaged in business in the city . of McKinney. He kept in his .piace a= ticker from which he received the reports .daily of the various ball games of both ’ the American and National Leagues as they progressed. He operated a device' or scheme consisting of’ 120 sealed combinations of two teams’ initials on a card. The customer paid ’ twenty-five cents fór. this number, removed it from the card, opened it, and kept this as his receipt'and claim check. He could purchase as many as he desired. Of the thirty dollars received from the sale of the tickets, on each card the appellant would keep five^dollars- and place the other in a fund so that the winner, at the close of the games, ■ would draw down twenty-five dollars. -Apparently appellant was doing a thriving business and proceeded upon the theory that he was not violating the law. To settle the matter, he invited the patronage of the sheriff’s department with a test case to determine the status of his operation. The purchaser of the ticket was a deputy sheriff, in company with' two others. He did not win. Each ticket had a different combination. If the combined scores of the two teams drawn exceeded that of any other two teams, either the American or National' League, the holder is the winner. It is possible, but not likely, that there 'should be two or more winners, in which event the twenty-five dollars is divided equally among them.

The material part of the indictment is as follows: “Johnnie Odie did then and there unlawfully take and offer to take and accept and place for A. G. Sparlin a bet and wager of money, to-wit: twenty-five cents of the value of $0.25, on a baseball game, athletic contest and. sports event.”

This form of the indictment is approved in .the case of Simmons v. State, supra.

It is contended that the indictment is duplicitous. This is not sustained. We quote from Branch’s Ann.Tex.P.C. p. 259, sec. 506:

“Duplicity is the joinder in the same count of two or more separate offenses, or the joinder in the same count of two or mpre phases of .the same offense, where the punishment’ is different. To be bad for .duplicity, more than one such offense' or phase must be completely alleged or the incomplete allegations may be rejected as surplusage. Henderson v. State, 2 Tex.App. 88; Hickman v. State, 22 Tex.App. 441, 2 S.W. 640; Hammons v. State, 29 Tex.App. [445] 448, 16 S.W. 99; Johnson v. State [77 Tex.Cr.R. 25], 177 S.W. 490. * * * To be bad for duplicity, it must- appear from the face of the indictment that .two or more separate offenses are charged in the same count. Rumage v. State [Tex.Cr.App.] 55 S.W. 64.”
“If the indictment does not in the- same count contain a complete 'description of two offenses, the words applicable to that in- respect to which the charge is incomplete may be rejected as surplusage. Ham-mons v. State, 29 Tex.App. 448, 16 S.W. 99.”
“When the punishment is the same, an indictment is not bad for duplicity because it charges in the same count several means of accomplishing the same result. Coney v. State, 2 Tex.App. 62; Moore v. State, 37 Tex.Cr.R. 552, 40 S.W. 287; Burt v. State, 38 Tex.Cr.R. [397] 440, 40 S.W. 1000 [39 L.R.A. 305, 330]; Medina v. State [Tex.Cr.App.] 49 S.W. 380; Reum v. State, 49 Tex.Cr.R. [125] 128, 90 S.W. 1109.”
“Where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, and are not repugnant to each other, they are not distinct offenses but different phases of the same offense, and may be charged conjunctively in the same count. Copping v. State, 7 Tex.App. 61; Gage v. State, 9 Tex.App. 259; Day v. State, 14 Tex.App. [26] 30; Nicholas v. State, 23 Tex.App. [317] 326, 5 S.W. 239; Comer v. State, 26 Tex.App. [509] 512, 10 S.W. 106; Howell v. State, 29 Tex.App. 592, 16 S.W. 533; Laroe v. State, 30 Tex.App. 374, 17 S.W. 934; Willis v. State, 34 Tex.Cr.R. [148] 149, 29 S.W. 787; Tellison v. State, 35 Tex.Cr.R. 388, 33 S.W. 1062; Moore v. State, 37 Tex.Cr.R. 552, 40 S.W. 287; Brown v. State, 38 Tex.Cr.R. 597, 44 S.W. 176; Schirmacker v. State [Tex.Cr.App.] 45 S.W. 802; Prendergast v. State, 41 Tex.Cr.R. 358, 57 S.W. 850; Holman v. State [Tex.Cr.App.] 90 S.W. 174; Reum v. State, 49 Tex.Cr.R. [125] 128, 90 S.W. 1109; Morris v. State, 57 Tex.Cr.R. 163, 121 S.W. 1112; Cabiness v. State [66 Tex.Cr.R. 409] 146 S.W. 934; Stevens v. State [68 Tex.Cr.R. 282] 150 S.W. 944; Walker v. State, [68 Tex. Cr.R. 315] 151 S.W. 318; Goodwin v. State [70-Tex.Cr.R. 600] 158 S.W. 274; Stevens v. State [70 Tex.Cr.R. 565] 159 S.W. 505; Johnson v. State [75 Tex.Cr.R. 177] 171 S.W. [211] 212.”

It is further contended that the indictment should have been quashed because it fails to allege the name of the baseball team. The contrary was held in the Simmons case, supra.

Again, it is. contended that the indictment contains repugnant provisions because it uses' the words, “a baseball game, athletic contest and sports event”. This contention is not sustained under the authorities cited in Branch’s Ann.Tex.P.C., p. 259, sec. 505, reading as follows: “If any count in an indictment contains inconsistent allegations, both of which cannot be true, and there is no means of ascertaining from the face of the indictment which is meant, the indictment is bad for repugnancy. Cain v. State, 18 Tex. [391] 392; Hardeman v. State, 16 Tex.App. 1 [49 Am.Rep. 821]; Scott v. State, 40 Tex.Cr.R. 105, 48 S.W. 523; Munoz v. State, 40 Tex.Cr.R. 457, 50 S.W. 949; Edgerton v. State [Tex.Cr.App.] 70 S.W. 90; Hickman v. State, 44 Tex.Cr.R. 533, 72 S.W. 587; Davis v. State, 60 Tex.Cr.R. 108, 131 S.W. 315; Hubbert v. State [66 Tex.Cr.R. 370] 147 S. W. 267.”

Probably the most difficult question raised in connection with this bill of exception is that the court should have defined “bookmaking”. The definition of this word seems to be immaterial. The offense with which he is charged is properly alleged in the indictment and properly described in the court’s charge. The conclusion, that it is bookmaking is derived from our own statute regardless of the definitions which may be accepted generally. Taking this view, the court has properly submitted the question.

In defining the word “bet” the court used the following language: “The legal meaning of the term ‘bet’ is the mutual agreement and tender of a gift of something valuable, which is to belong to one of the contending parties, according to the result of a trial of chance, or skill, or both combined.”

Based on Mayo v. State, Tex.Cr.App., 82 S.W. 515, and Melton v. State, 58 Tex.Cr.R. 86, 124 S.W. 910, Words and Phrases, Second Series, Vol. 1, p. 433, defines “bet” as follows: “The legal meaning of the term ‘bet’ is the mutual agreement and tender of a gift of something valuable, which- is to belong to one of the contending parties, according to the 'result of the trial of chance or skill, or both combined.”

. The definition approved by this court, as stated in Words and Phrases, is practically identical with .that given by the court in the case at bar.

The definition of “wager”, as given in the court’s charge, is as follows : “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.”

From Words and Phrases, Second Series, Vol. 4, p. 1217, we copy the following definition: “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.”

It is our conclusion that the in-, dictment properly alleges the offense as defined under Art. 652a, sec. 1, and that the evidence amply sustains the verdict of the jury.

The judgment of. the trial court is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Our conclusion, after re-examining the record in the light of appellant’s motion for rehearing, is that we were correct in holding originally that the evidence warrants the conclusion that appellant was guilty of bookmaking.

We are also of opinion that the charge of the court adequately presented the case to the jury.

The motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by- the Court.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    WILSON v. STATE.
    No. 21025.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied May 15, 1940.
    McCoy, Ilill & Brady, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

It was alleged in the indictment herein that appellant had committed the crime of burglary, and further that in cause No. 41105 in the District Court of Harris County, on September 20, 1935, the appellant had theretofore been convicted of robbery by assault; and that in cause'No. 35302, in the same .court, on May 27, 1931, appellant was convicted of the offense of burglary. Upon conviction in the instant case, alleged and proven to have been committed on June 22, 1939, for a felony, and proof of the conviction of the other two felonies charged, the court sentenced appellant to the penitentiary for life.

Under Article 63, P.C., this was the proper procedure. The testimony is sufficient on all matters, the identity of appellant being established in each felony.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

Appellant has filed a general motion for rehearing. He fails to specify any grounds of error.

We have carefully re-examined the record in the light of the original opinion, herein. Such examination leads us' to the-conclusion that the record fails to reflect, error, and, further, . that the evidence is. sufficient to support the judgment of conviction.

The motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has heen examined by the-Judges of the Court of Criminal Appeals.. and approved by the Court.


author: BEAÜCHÁMP, Judge. KRUEGER, Judge.

text:
    BAILEY v. STATE.
    No. 21003.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    Rehearing Denied May 15, 1940.
    B. P. Matocha and J. Fielding Jones, both of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAÜCHÁMP, Judge.

The offense is robbery from the person and the punishment .is twelve years. .

A proper analysis of the evidence in this case shows that appellant was a prisoner in the- Travis County jail. He assaulted the jailer, following a long and desperate struggle, took from him a bunch of six large jail door keys on two rings fastened together. The keys were used as a weapon of defense by the jailer and subsequently for offensive attack by appellant. At the end of the struggle appellant found himself still in jail but with the keys in his cell.

The indictment .is-under Article 1408, Penal Code, and it is of the essence of the crime that he take the article involved; that the property, belonged to some other person (Smedley v. State, 30 Tex. 215; Barnes v. State, 9 Tex.App.128); and that he intends to appropriate’ it to his own use. It appears he did not succeed in his purpose to escape jail and that he never in fact gained control of the keys. The officers had him in custody and the keys were in the jail with him. The evidence is silent as to who is the owner of the keys. It was his testimony and all the circumstances indicate that he merely meant to use them to lock the jailer in the cell while he made his escape. Under this staté of facts he cannot be held for robbery by violence.

It is alleged he took six keys and the State, claims only four in its evidence. This is presented as a fatal variance. We do not sustain the contention. Harris v. State, 34 Tex.Cr.R. 497, 498, 31 S.W. 382; Jones v. State, 64 Tex.Cr.R. 510, 143 S.W. 621; Bracher v. State, 72 Tex.Cr.R. 198, 161 S.W. 124.

For the failure of the State to prove the elements of the crime as defined by statute, the case is reversed and remanded.

On State’s Motion for Rehearing.

KRUEGER, Judge.

The State, by its District Attorney, has filed an able and plausible motion for rehearing in which it is seriously contended that we erred in holding the evidence insufficient to show that appellant took the keys by force from the possession of the jailer with the intent to permanently appropriate the same to his own use and benefit and to deprive the owner of the value thereof.

The intent of the accused must be ascertained and determined from his words, acts and conduct. Now, let us examine his acts, words and conduct under the circumstances reflected by this record in an endeavor to arrive at his intent. The accused' was confined in jail. He, by force, took the keys to the jail cell from the jailer and nothing else. After he obtained the keys, the jailer went down to the sheriff’s office presumably for help. Appellant went back into his cell and placed the keys under the mattress of his cot.

Robbery is but an aggravated species of theft. If property is taken for a mere temporary use, then it is not theft. There must be an intent to permanently appropriate the property and to deprive the owner thereof of its value.

What was the object of appellant in forcibly taking the keys from the jailer? Was it to permanently appropriate the same? . If so, of what use could they be to him except to liberate himself and make his escape? Did he desire to release himself from confinement or was it his purpose to permanently appropriate the keys? They were of no value to any one except to the jailer who could use them for the purpose and only the purpose for which they were made., Which is the most natural and logical conclusion to be drawn from the facts and circumstances disclosed by this record? A person’s desire to enjoy liberty is certainly much greater than his desire to permanently appropriate the keys which he could not put to any other use except to liberate himself from confinement. What could be the object of-a sane man stealing something that had no pecuniary or monetary value and especially is this true if he were going to remain in jail? We do not regard the opinion in this case as being in conflict with that in the case of Barfield v. State, 137 Tex. Cr. R. 256, 129 S.W.2d 310. While it is true that ordinarily the question of intent is usually one to be determined by the jury from all the facts and circumstances, still, if the facts and circumstances are such as will not justify or authorize the jury’s conclusion, then it is the solemn duty of this court, under the law and on its oath, to set it aside.

Believing that the case was properly disposed of upon the original submission, the motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: HAWKINS, Presiding Judge. CHRISTIAN, Judge.

text:
    HARRELL v. STATE.
    No. 20828.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    On the Merits March 27, 1940.
    Rehearing Denied May 15, 1940.

      M E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for burglary, punishment assessed being three years in the penitentiary.

No notice of appeal appears in the 'record, which is necessary under Art. 827, C.C.P., to give this court jurisdiction. See Branch’s Ann.Tex.P.C., Sec. 588, and cases there cited; also cases cited under Art. 827, C.C.P., in Vernon’s Tex.C.C.P., Vol. 3.

The appeal is dismissed.

On the Merits.

At a former day of the term the -appeal was dismissed for failure of the record to show notice of appeal. The record has been corrected in that respect and the appeal is reinstated and will now be considered on its merits.

On the night of June 23d, 1939, some one burglarized a house controlled by A. A. Hardee and stole therefrom articles described as lead covered T irons of the value of $216. Tracks at the place showed two parties were engaged in the burglary. The wire fence around the house had been prized up and the T irons had been slid under the fence. The irons weighed 53 pounds each. The tracks led back and forth from the fence to the house. The ground was quite muddy. Some of the irons recovered had mud on them corresponding to the mud at the fence. About 4:30 o’clock on June 24th an officer discovered appellant and one Phelan in a red pick-up truck loaded with more than 3,-000 pounds of said T irons. The truck belonged to Phelan and he was driving it when he and appellant were arrested. The clothes and shoes of both parties were muddy, and they had in the truck dry shoes and clothing. The T irons were identified by circumstances proven as those stolen from the burglarized house. Appellant did not testify but introduced witnesses whose testimony, if believed, would ac-count for appellant’s presence at places other than the burglarized house up until three o’clock on the morning of June 24, and with parties other than Phelan. The State, however, introduced a witness who testified that on the night of June 23d about ten o’clock appellant and Phelan came to her place in a red pick-up truck and asked for some water and she gave them water in a quart fruit jar. When the parties were arrested a quart jar with' some water in it was in the truck containing the stolen property. The condensed statement of the facts is sufficient to reflect that the evidence amply supports the verdict.

The court properly submitted the issue of alibi which the jury resolved in favor of. the State.

A number of exceptions were presented to the court’s charge. We discover no merit in any of said objections.

Appellant made application for continuance and brings forward Gomplaint of its refusal. The application sets out what evidence is expected from the absent witness, but there is a total failure to state facts in the application which upon its face shows the materiality of the testimony. Branch’s Ann.Tex.P.C., Sec. 312, sub. 3. In view of Sec. 6, Art. 543, C.C.P., and application thereof as shown in cases cited in Sec. 319, Branch’s Ann.Tex.P.C., the trial court was fully justified in reaching the conclusion under all the testimony in the case that if the absent testimony had been before the jury a verdict more favorable to appellant would not have resulted.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

We think proper disposition of the appeal was made upon the original submission. Our re-examination of the record in the light of the motion for rehearing leaves us of opinion that the charge of the court adequately submitted the case to the jury.

The motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author:
GRISSOM, Justice.
      FUNDERBURK, Justice

text:
    MARYLAND CASUALTY CO. v. FOOTE.
    No. 2008.
    Court of Civil Appeals of Texas. Eastland.
    April 5, 1940.
    Rehearing Denied April 26, 1940.
    Smith & Eplen, of Abilene, for appellant. .
    Stinson, Hair, Brooks & Duke, of Abilene, and Smith & Smith, of Anson, for ap-pellee.
   GRISSOM, Justice.

In a workman’s compensation case plaintiff, Elvis Foote, recovered judgment against the defendant, insurer, for 50 weeks’ total incapacity and 100 weeks’ partial incapacity. From the judgment defendant, Maryland Casualty Company, has appealed.

Plaintiff’s petition contained the usual preliminary allegations in a workman’s compensation case. He further alleged that on August 15, 1938 while plaintiff was employed by and working for H. L. Rice, the insured, and while engaged in his regular course of employment and in furtherance of the business of his employer in Taylor County he was injured; he alleged the injury and the manner of its occurrence in detail,.and that as a result of said injury plaintiff was totally disabled for performing labor for a period of 100 weeks, with a subsequent partial disability of 75 per cent and that said partial incapacity was permanent. Section 3 of plaintiff’s petition was as follows:

“That plaintiff was employed at the time of said accidental injury as a laboring hand and performing the usual tasks of a laborer for his employer and plaintiff was being paid a wage of $2.40 per day, working 6 days a week, that the class of work that plaintiff was doing he had been so engaged in the same or similar kind of work, wheth-" er for the same employer or other employers, for the whole or substantially the whole of the year next preceding the date of said accidental injury on the 15th day of August, 1938, and had drawn an average daily wage of $2.40 per day for the whole or substantially the whole of the year next preceding the date of said accidental injury and his annual income had been $720 covering the whole of said year next preceding the date of said injury, that plaintiff’s compensation rate should be calculated under Subdivision 1, Section 1 of Article 8309 on the basis of plaintiff’s annual earnings for the year next preceding the date of said accidental injury.
“Plaintiff pleads in the alternative and says that if it should be determined upon the trial of this cause that he had not been continuously employed for the whole nor substantially the whole of the year next preceding the date of said accidental injury and that Subdivision 1, Section 1 of Article 8309 could not be applied, then plaintiff says there were other employees doing the same or similar kind of work in the same neighborhood as that of plaintiff at the date of such injury who had been so employed for the whole or substantially the whole of the year next preceding the date of the 15th day of August, 1938 and whose average daily wage had been $2.40 per day, or $720.00 annual earnings- and that plaintiff’s compensation should be calculated in that event under Subdivision 2, Section 1 of Article 8309 on the basis of such other employees wage rate.
“But, plaintiff further pleads in the alternative and says if it should be determined upon the trial of this cause that Subdivisions 1 nor 2 of Section 1 of Article 8309 could not be applied, then plaintiff says that on account of the shortness of the length of time that he had been so employed by his employer which was less than substantially the whole of the year next preceding the date of said accidental injury, then and in that event plaintiff’s compensation should be calculated under Subdivision 3, Section 1 of Article 8309 in such way and manner as would be just and fair to all parties concerned; but plaintiff would show that on account of the nature of his injury that he is entitled to 100 weeks total compensation at the rate of $8.31 per week, with a 75% partial disability for a period of 300 weeks beginning at the expiration of said 100 weeks and that plaintiff is entitled to $6.24 per week for a continuous period of 300 weeks.”

To said section 3 of plaintiff’s petition, the defendant excepted as follows:

“Defendant specially excepts to said plaintiff’s first amended original petition on the ground that Section ‘3’ thereof, which is composed of three paragraphs, alleges conflicting grounds for recovery in attempted alternative counts, and fails to expressly or by reference group into separate counts the particular and consistent facts warranting any certain or definite relief sought and such paragraphs so grouped present alleged rights of the plaintiff to a judgment on conflicting theories which should be in separate counts.
“Wherefore, defendant prays that such portion of plaintiff’s said amended petition be stricken and dismissed, and that said petition as a whole be dismissed.”

,Said special exception, or demurrer, was overruled. Said action of the court is made the basis of appellant’s first proposition. In support of said proposition and as authority upon which defendant relies for the reversal of the judgment, for said reason, defendant cites Moore v. Rice, Tex.Civ.App., 80 S.W.2d 451; Jennings v. Texas Farm Mort. Co., 124 Tex. 593, 80 S.W.2d 931; Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.

We are of the opinion that the court did not err in overruling the exception. It will be observed from reading the petition that plaintiff alleged the injury and the facts common or necessary to a recovery under any of the three subdivisions of Art. 8309, relative to the -manner of fixing the compensation rate. Thereafter, in section 3 of his petition, in separate alternative counts, plaintiff alleged facts bringing him within each of the three subdivisions of Art. 8309, fixing his wage rate. The proposition is overruled. See Pryor & Wilson v. Moody, Tex.Civ.App., 49 S.W.2d 506; Davies v. Texas Emp. Ins. Ass’n., Tex.Com.App., 16 S.W.2d 524, 525; Texas Emp. Ins. Ass’n. v. White, Tex.Civ.App., 32 S.W.2d 955, 958; Traders’ & Gen. Ins. Co. v. Williams, Tex.Civ.App., 66 S.W.2d 780, 784; International & G. N. Ry. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, 517; Traders & Gen. Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, 433; Hartford Acc. & Ind. Co. v. Leigh, Tex.Civ.App., 57 S.W.2d 605, 606; Indemnity Ins. Co. of North America v. Bailey, Tex.Civ.App., 50 S.W.2d 484, 489; Traders & Gen. Ins. Co. v. Rouse, Tex.Civ.App., 39 S.W.2d 80, 81; Morris v. Sanders, Tex.Civ.App., 55 S.W.2d 594.

Defendant’s second proposition is as follows : “The evidence in this case being' insufficient to prove that appellee suffered any total incapacity for work, but showing on the contrary that appellee did not suffer total incapacity, the District Court should have sustained appellant’s exceptions to the court’s charge referable to the issues touching upon total incapacity and should have refused to enter judgment for appellee for any compensation based on total disability.”

An examination of the evidence convinces us that there is testimony raising the question of plaintiff’s total incapacity. There is evidence that during the time plaintiff was found to be totally incapacitated he did some work. Plaintiff testified, in substance, that he did some wo'rk during the period of total incapacity found by the.jury when it was very painful for him to do so, for the reason that he felt compelled to do the work in order to maintain and support his family.

We think the evidence raised the issue and brings it within the discussion of the subject in the following authorities: 45 Tex.Jur. 589; Davies v. Texas Emp. Ins. Co., Tex.Com.App., 29 S.W.2d 987. Defendant’s second proposition is overruled.

The defendant contends that the answers of the jury are in irreconcilable conflict and cannot support the judgment rendered. In view of the fact that the judgment must be, for the reason hereafter stated, reversed, it is unnecessary for us to determine this question, as it will probably not arise upon another trial. However, we will briefly call attention to the situation disclosed by the record.

In answer to issue No. 5 the jury found that Foote became totally incapacitated on or about August 15, 1938. In answer to issue 7 that Foote’s total incapacity began August 15, 1938; in answer to issue 8 that plaintiff’s total incapacity had not ceased at the time of the verdict, to-wit, April 5, 1939; (9) that Foote would be totally incapacitated for 50 weeks. (According to our calculations, 50 weeks of total incapacity from August 15, 1938, would result in total incapacity to July 24, 1939.)

With reference to partial incapacity the court submitted issue 10 as follows: “From a preponderance of the evidence do you find that Elvis Foote’s incapacity for work, if any, since August 15, 1938 has not been partial incapacity, as that term is defined to you in subdivision (d) of this charge? Answer: ‘His incapacity has not been partial’, or ‘His incapacity has been partial.’ ” The jury answered “His incapacity has been partial.” Issue 11 was “From a preponderance of the evidence give the date that Elvis Foote’s partial incapacity begun, if any.” (Italics ours) The jury answered “August 1, 1939.” In answer to issue. 12 the jury fixed the number of weeks of Foote’s partial incapacity at 100 weeks. Issue 13 was “From a preponderance of the evidence do you find that Elvis Foote’s partial incapacity, if any he has, will be permanent?” The jury answered “Yes.” Issue 14 was “From a preponderance of the evidence what percent of partial incapacity to work has or will Elvis Foote suffer, if.any?” The jury answered “50 percent.”

Construing the verdict of the jury as a whole and in connection with the pleadings, it is perhaps susceptible to the construction that the jury intended to find that Foote became totally incapacitated on August 15, 1938, and that his total incapacity would continue from that date for a period of 50 weeks, and (in connection with issue 11, wherein the jury found, on April 5, 1939, that Foote’s partial incapacity “begun” August 1, 1939) that Foote’s partial incapacity would begin thereafter on August 1, 1939. This, according to our calculations, would have the period of total incapacity ending on July 24, 1939, and the period of partial incapacity beginning about one week thereafter, on August 1, 1939. This was probably the result of a miscalculation of the number of weeks in the period mentioned. Another problem is presented by the answer to issue 12, that the number of weeks of Foote’s partial incapacity is 100 and the answer to issue 13, that Foote’s partial incapacity will be permanent. It is apparent that the findings that Foote will be partially incapacitated for 100 weeks and that his partial incapacity is permanent are in conflict to the extent of the finding of partial incapacity after the end of the 100 weeks’ period. However, no judgment was rendered as to said period, and, as to partial, or 50 per cent incapacity, the judgment was only for 100 weeks. The judgment apparently is in accord with the decision of our Supreme Court in Fidelity & Cas. Co. v. McLaughlin, Tex.Sup., 135 S.W.2d 955, 958.

Issue No. 14 was “From a preponderance of the evidence what percent of partial incapacity to work has or will Elvis Foote suffer, if any? Answer in percent, letting 100 represent total.” The jury answered said issue “50 per cent.”

It is contended that the issue is duplicitous, having reference particularly to the words “has or will.” The only authority cited by defendant is Traders & Gen Ins. Co. v. Shelton, Tex.Civ.App., 130 S.W.2d 903. In the Shelton Case, in connection with a similar issue, the jury was instructed as follows: “If you find from a preponderance of the evidence that he has not or will not suffer any partial incapacity, let your answer be ‘No,’ otherwise you will answer ‘Yes.’ ” As we understand the opinion in the Shelton Case the submission of the issue was held to be reversible error because of the instruction accompanying the issue. In said opinion it is pointed out that such submission of the issue, in the absence of such explanation or instruction, had been many times held nof to be the submission of a duplicitous issue. Such cases so holding are: Traders & Gen. Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, par. 11; Fidelity & Cas. Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780, par. 13; Maryland Cas. Co. v. Brown, Tex.Civ.App., 110 S.W.2d 130; Traders’ & Gen. Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837.

The proposition is overruled.

In issue 5 the court inquired whether Foote became totally incapacitated on August 15, 1938. The jury answered “Yes.” Following issue 5 the jury was instructed that it was to answer issues 6 to 9, both inclusive, only in the event it answered issue 5 “yes.” Said issues; so conditionally submitted, inquired: (6) Whether Foote’s totai incapacity was the result of the accidental injury of August 15, 1938 (answered, yes); (7) when Foote’s incapacity for work began (answer: “Aug. 15, 1938”); (8) the date total incapacity ceased (answer: “Has not ceased”); and (9) asked the jury to fix the number of weeks of total incapacity. The answer to issue 9 was “Fifty Weeks,”

In issue 10 the jury was asked whether Foote’s incapacity for work “since August 15, 1938 has not been partial.” The jury answered: “His incapacity has been partial.” Following issue 10 the court instructed the jury to answer issues 11 to 14, inclusive, only in the event it found Foote’s incapacity “has been partial.” Said issues, so conditionally submitted, inquired: (11) The date partial incapacity began (answer: “Aug. 1st, 1939”); (12) asked the jury to fix the number of weeks of partial incapacity (answer: “100 weeks”); (13) whether Foote’s partial incapacity would be permanent (answer: “yes”); (14) what percent of partial incapacity did Foote suffer (answer: “50%”).'

The defendant objected to the conditional submission of said issues 6 to 9, inclusive, and 11 to 14, inclusive, and further objected to them upon the ground that said issues were upon the .weight of the evidence. We .call attention particularly to issue No. 10 in which the question was asked whether Foote’s incapacity since August 15, 1938, “has not been ’partial”, and the answer of the jury thereto that his incapacity “has been partial”, and the conditional submission thereafter, in issue 13, of the question whether Foote’s partial incapacity was permanent. The jury found plaintiff’s partial incapacity was permanent and, in answer to issue 14, that plaintiff’s partial incapacity was 50 per cent.

In Southern Underwriters v. Wheeler, Tex.Civ.App., 108 S.W.2d 846, 851, by its special issue No. 5, the court submitted the question whether Wheeler was partially disabled after the period of total disability ceased. The jury answered that issue “yes.” In answer to special issue No. 6 the jury found that Wheeler’s said partial disability amounted to 50 per cent. Special issue No. 7 inquired whether Wheeler’s said partial disability was permanent. This issue was submitted conditionally, that is, to be answered only in the event that in answer to issue 6 the jury had found Wheeler was partially disabled after the period of his total disability ceased. Issue 7 was answered, the jury finding Wheeler’s partial disability was permanent. The conditional submission of said issues was objected to by defendant. The court of civil appeals held that such conditional submission did not constitute reversible error. The Supreme Court held that it was reversible error.

We think there is no ground for distinction between the situation in the Wheeler Case and that heretofore pointed out in detail in the instant case. We are, therefore, constrained to hold that such conditional submission constituted reversible error. Also, see Traders & Gen. Ins. Co. V. Wright, Tex.Civ.App., 95 S.W.2d 753, affirmed 132 Tex. 172, 123 S.W.2d 314, 315, wherein the Supreme Court said: “Plaintiff Wright pleaded both total and partial disability, the latter alternately. Defendant pleaded only a general denial on the merits of the case. There was evidence to support both issues as well as the related issues of temporary total and temporary partial disability. The related issues need not be noticed further since the manner of their submission will be controlled by the principles applicable in submitting partial disability presently to be discussed (Italics ours).

In the Wheeler Case “the primary issue inquiring whether partial disability resulted after total disability had ceased, was correctly submitted unconditionally” by issue 5, 132 Tex. 350, 123 S.W.2d 340. In the instant case, by issue 10, the issue of partial incapacity was submitted unconditionally. In the Wheeler case the question of whether Wheeler’s partial disability was permanent was conditionally submitted by issue 7. The jury answered the issue “yes.” In the -instant case, by issue 13, the question whether Foote’s partial incapacity would be permanent was submitted conditionally. The jury answered the issue “yes.”

Relative to this situation in the Wheeler Case the court of civil appeals said [108 S.W.2d 851]: “It is the preamble to No. 7 that is complained of. We repeat: ‘If you have answered special issue No. 5 in the affirmative, then you will answer this issue, but if you have answered special issue No. 5 in the negative, then you need not answer this issue.’ That is to say, if the jury should find there was a partial disability after the total disability ceased, then they should determine by answer to issue No. 7 whether or not that partial disability would be permanent. This preamble also meant that, if the jury should find under special issue No. 5 there was no partial disability after the expiration of the plaintiff’s total disability, then they need not answer No. 7. We fail to see how defendant could possibly be harmed by this preamble. It was only in the event there was a partial disability period to follow the total disability that No. 7 should be answered at all. If such a period did not exist, defendant would not be liable for compensation, and, if such a period did come, as was found by the jury, then and only then, would defendant be interested in whether or not the disability was permanent or temporary. No. 5 was answered in the affirmative, and the jury therefore answered No. 7 and gave defendant everything it could have gotten had the preamble not preceded the issue.”

Relative thereto the Supreme Court said 132 Tex. 350, 123 S.W.2d 340, 341:

“In the present case the primary issue inquiring whether partial disability resulted after total disability had ceased, was correctly submitted unconditionally; but the secondary issues inquiring respectively whether the partial disability, if any, resulting after total disability had ceased, was permanent, or was temporary, were submitted conditionally, the jury being directed in the respective preambles to the special issues to answer same conditioned on how it had answered some previous issue.
“The decision in the Wright Case is controlling here. The secondary issues referred to are the converse one of the other, not opposite one to the other, and both should have been unconditionally submitted. The fact that the primary issue was submitted unconditionally did not obviate the necessity of submitting unconditionally the secondary issues. The restriction imposed by the condition stated in the preambles should have been eliminated upon objection urged in the trial court, and affirmance of the judgment predicated upon conditional submission of the issues constitutes reversible error.”

The case of Traders & Gen. Ins. Co. v. Stakes, Tex.Civ.App., 131 S.W.2d 270, writ ref., relied upon by the plaintiff, is distinguishable from the Wheeler and the instant case as suggested by Judge Taylor in the Wheeler Case, by the fact that the issue of partial incapacity in the Stakes Case, unconditionally submitted, was answered in the negative. The opinion of Justice Higgins in the Stakes Case recognizes the decision in the Wheeler Case, as heretofore interpreted by us, and plainly rests its decision upon such distinction.

The other cases cited by the plaintiff are thought not to be directly in point, but whether they are or not, we are bound by the decision of the Supreme Court in the Wheeler Case.

The judgment is reversed and the cause remanded.

Rehearing denied.

FUNDERBURK, Justice

(dissenting).

The writer concurs in the view that this case upon the point which has been deemed controlling is not distinguishable from the Wheeler Case, Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340. Ordinarily, of course, the determination of that question ought to end the inquiry and leave remaining only the simple duty to reverse and remand the case as we have done. There may be those who question whether under any circumstances any other course can be justified. If accepting the higher court’s interpretation of the law, a lower court is clearly of opinion that the former has in a particular case made a mistake in ‘ the application of the law, the question is posed: Should the law, or the application, • be given controlling effect? Should the interpretation of the law with its general effect control, or should a particular application of the law, believed to be the result of mistake and unwarranted by the higher court’s interpretation of the law, control? Fully recognizing that the question is a delicate one, the writer believes that it will better serve the jurisprudence of the State, under such circumstances, for the inferior court to apply the law as interpreted by the superior court, to the particular case before it, the parties having their remedy in a case of error and at the same time the higher court being afforded the opportunity to remedy its previous inadvertent misapplication of the law, provided, of course, upon the further consideration of the question it be recognized that there was such mistake.

The writer must admit an inability to understand all that is said and possibly implied in the Wright Case, Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314, but it is believed the uncertainties are not such as to enter into or materially affect the controlling question here presented.

The questions for decision in the Wright Case related to four special issues submitted to the jury which, stated briefly and informally with reference to the findings elicited thereby, were: (1) Was disability, if any, total? (2) Was disability, if any, partial? (3) Was total disability, if any, permanent? (4) Was partial disability, if any, permanent?

For clarity and brevity, said issues, as above designated by the numbers 1 to 4, inclusive, may hereinafter be referred to thus: (1) Total disability, (2) partial disability, (3) permanent total disability, and (4) permanent partial disability. The action of the trial court, held to be error, was in submitting' each of the issues, partial disability and permanent partial disability, upon condition that the issue of total disability was answered to the effect that the disability was not total. The issues of permanent total disability and permanent partial disability were referred to in the majority opinion of this court as “temporary total and temporary partial disability”, the opinion stating that “The issues with reference to the temporary total and temporary partial incapacity were likewise conditionally submitted and were not answered. That which has been said with reference to the conditional submission of the issue of partial incapacity is applicable to them.” There were no issues of “temporary total and temporary partial incapacity” as distinct from said issues of permanent total disability and permanent partial disability, respectively, as aforesaid. In the Supreme Court the same issues were referred to as “related issues” in language as follows: “There was evidence to support both issues, [total disability and partial disability] as well as the related issues of temporary total and temporary partial disability. The related issues need not be noticed further since the manner of their submission will be controlled by the principle applicable in submitting partial disability presently to be discussed.” (Italics ours)

It thus appears certain that the decision of the question relating to the issues of total disability and partial disability, that is, whether the latter was properly submitted, conditioned upon the answer to the former, was thought to be applicable and intended to apply to the issues of permanent total disability (referred to by the court as “temporary total disability”) and permanent partial disability (referred to by the court as temporary partial disability”).

With reference to the question concerning the propriety of submitting conditionally the issue of partial disability in its relation to the issue of total disability, the court classified issues as “opposite issues” and “converse issues.” It was held that the law does not require that both of two “opposite issues”- be submitted, giving as an example of opposite issues “ Was such negligence the proximate cause of the injury?’ Was such negligence not the proximate cause of the injury?’” But it was held that “converse issues” must be submitted unconditionally. The meaning of “converse issues” was explained thus: “The issues submitting the two inquiries as to the result of the injuries — one whether total and the other whether partial — are converse but not opposite.”. Much of the Opinion is devoted to a re-affirmance of the doctrine of the Rowe Case, criticized in the minority opinion of the Court of Civil Appeals. The most important new pronouncement (stated in our own language, rather than that of the court) was to the effect that where an issue is a plaintiff’s issue in the sense that it constitutes an element of an alternative ground of recovery, but the subject matter of such issue is also a defendant’s issue in the sense that a finding thereof in favor of the defendant would rebut the'existence of plaintiff’s other ground of recovery, in such case the court may submit plaintiff’s issue and the defendant’s issue as a single issue and if, as a defendant’s issue, it is a converse issue it will be error to submit conditionally the dual issue. To state the point differently, it was held, in effect, that the issue of partial disability was a plaintiff’s issue and also defendant’s issue, being the converse of the plaintiff’s issue of total disability; that it was required (under the doctrine of the Rowe Case) to be submitted and under other decisions required to be submitted unconditionally; that it was not necessary, however, to submit two issues, nor by the form of the single issue to place upon the plaintiff the burden of establishing by a preponderance of the evidence that the disability was not .temporary. This last question was not really involved in the Wheeler case.

In the Wheeler case, the issues corresponding to those referred to in the Wright case as “related issues” were called “secondary issues.” The issue of partial disability (following a period of total disability) was called the “primary issue.” Of this issue it was said: “In the present case, the primary issue inquiring whether Partial Disability resulted after Total Disability had ceased was correctly submitted unconditionally.” Of the “secondary issues” it was said. that “the secondary issues inquiring,- respectively, whether the partial disability, if any, resulting after total disability had ceased was permanent, or was temporary, were submitted conditionally, the jury being directed in the respective preambles to the special issues to ynswer same conditioned on how it had answered some previous issue.” (Italics ours).

As said before, there was no issue of partial temporary disability, as distinct from the issue of partial permanent disability, submitted. The issue referred to as the “primary issue”, the unconditional submission of which was approved, was special issue No. S as follows: “Do you find from a preponderance of the evidence that the plaintiff was partially disabled as the result of such injury after the period of total disability, if any, ceased?” The “secondary issue”, the conditional submission of which was condemned, was special issue No. 7, “Do you find from a preponderance of the evidence that such partial disability of the plaintiff, if any, as referred to in special issue No. 5 is permanent?” To repeat: There -was no issue submitted,, the purpose of which was to elicit a finding of whether or not partial disability, if aity, was temporary. This emphatic statement is made upon the assumption that the court did not mean that said special issue No. 7 above quoted was such issue. .That would destroy the foundation of the doctrine of the Rowe Case at one, stroke. It would, in effect, be an admission that an issue of whether a disability is permanent and an issue of whether a disability is temporary are one and the same thing. It would mean, in a negligence case, that the court could not submit - an issue of proximate cause conditioned upon a finding of negligence, since thereby the court would be conditionally submitting, without mention, the defendant's issue of unavoidable accident, or of new and independent cause, etc. It is of the very essence of the doctrine of the Rowe Case, that issues denominated “converse issues” are distinct issues.

The conditionally submitted issue of partial disability involved in the Wright Case was considered as one issue, not two. It was, in effect, held that just because if it was the plaintiff’s issue, alone, it should be stated: “Do you find from a preponderance of the evidence that the injuries, if any, sustained by the plaintiff * * * resulted in the partial incapacity of plaintiff” and if a defendant’s issue alone, it should have been stated “Do you find from a preponderance of the evidence that the injury, if any, sustained by the plaintiff did not result in the partial incapacity of plaintiff”, it was not necessary to submit the one issue as two issues on account of the question of the burden of proof, but that it was within the court’s discretion to submit it in the form properly as plaintiff’s issue, a verdict for plaintiff upon the other form, if found, being insufficient to support a judgment for the plaintiff.

Surely, the court did not consider that two issues were actually submitted as one. That would have been a direct violation of the statute requiring that special issues be submitted “distinctly and separately” and answered by the jury “separately”. R.S.1925, Art. 2190. It is the more reasonable conclusion, I think, that the court regarded the mere difference between an affirmative and a negative statement of one issue as not involving two distinct issues, but the mere form of the single issue. If so, the Wright Case, which was the sole authority for the decisioij in the Wheeler Case, would he no authority to support the proposition that a plaintiff’s issue of partial permanent disability is at the same time the defendant’s converse issue of partial temporary disability.

Under the decision in the Wright Case and the classification of issues there made as “opposite issues” and “converse issues” an issue of partial temporary disability would be the converse of the issue of partial permanent disability. While the latter issue was submitted the former was not submitted, conditionally or unconditionally. Had it been submitted it would have been error to condition its submission upon a finding of the issue of partial permanent disability to the effect that partial disability was not permanent. That question was not in the case and under the record could not be in the case, since no issue of partial temporary disability was submitted, or requested to be submitted. The issue submitted conditionally, namely, partial permanent disability, was, in relation to the issue of partial disability (after total disability ceased), neither an opposite, nor a converse, issue as the meaning of those terms is explained in the Wright and Wheeler Cases. Even if the issue of partial permanent disability, conditionally submitted, included the unmentioned issue of partial temporary disability» yet, nevertheless, the latter in relation to the unconditionally submitted issue of partial disability (following total disability) was itself neither an opposite nor a converse issue. Under the doctrine of, the Rowe Case, as amplified in the Wright Case, it is believed to be an uncontroverti-ble proposition that a finding in favor of the defendant upon a defendant’s issue which is the converse of a plaintiff’s issue found in favor of the plaintiff will defeat any judgment for the plaintiff based upon' plaintiff’s said issue. For example, a finding in favor of the defendant of an issue of unavoidable accident and a finding in favor of the plaintiff upon the issue of proximate cause (defendant’s negligence as cause of the injury) will result as a matter of law in defeating judgment for the plaintiff. The reason is, of course, that if one be true, then, as a matter of law, the other cannot be true. But upon the issues involved in the Wheeler case, and in the instant case, no possible answer to either issue can be inconsistent with the answer to the other. Let us say the jury answers the unconditionally submitted issue to the effect that there was no partial disability after total disability ceased. Result: no judgment for the plaintiff awarding recovery of compensation for any partial disability; full acquittance of defendant from any such liability. But say the jury answers the issue to the effect that there was partial disability after total disability ceased? Result: standing alone, the answer is wholly immaterial. It will support no judgment for the plaintiff; the defendant will be acquitted of liability just as certainly as if the issue were found to the contrary. This results, of course, from the burden being upon the plaintiff to establish the duration, if any, of such partial disability. To establish the duration, if any, of partial disability was the purpose, and the only purpose, of submitting the issue of partial permanent disability. It was a plaintiff’s issue. It was not a defendants issue. If answered to the effect that partial disability was not permanent, no judgment could be given for the plaintiff, or against the defendant, awarding compensation for any partial disability after total disability had ceased. Such finding of the issue would require judgment, so far as based upon that issue, in favor of the defendant.

If, however, the issue was answered to the effect that the partial disability was permanent, then, of course, the plaintiff would be given judgment (all other essential issues being established) for compensation for all the partial disability existing after total disability ceased. But, how could the defendant counter against the establishment of that issue? He could do so, of course, by offering rebuttal evidence to persuade the jury that partial disability was not permanent. Under the doctrine of the Rowe Case he could do more than that. He could have an issue submitted designed to elicit a finding whether the “converse” of the issue of partial permanent disability was true. He was entitled to have the jury find whether, by a preponderance of the evidence, the partial disability was not temporary. Regardless of the fact that such issue has generally been supposed to impose the burden of proof upon the plaintiff to establish that disability, if any, was not temporary, the issue itself is nonetheless a defendant’s issue. If the court omits to submit it the defendant must request its submission, or else the right to have it submitted will'be waived. That issue was not submitted, conditionally or unconditionally, and, therefore, of course, there could be no question of any error in submitting it conditionally.

The mistake implicit in the opinion in the Wheeler case was the supposition that the trial court had submitted an issue of partial temporary disability and had submitted it upon condition that it was not to be answered unless the issue of partial permanent disability was answered to the effect that partial disability was not permanent. As already pointed out, neither the issue of partial permanent disability, nor the converse issue of partial temporary disability, had the latter been submitted, but was not, was either the opposite or converse of the issue of partial disability (following total disability). It is respectfully submitted that if the Supreme Court in the Wheeler case intended anything more than to declare that the question at issue was ruled by the principle upon which it had been declared in the Wright case that an issue of partial disability as the converse of the issue of total disability may not be submitted conditionally, then the opinion imports no such other intention, but just the contrary. If that was really the controlling principle, then it appears certain there was some mistake in its application. Hence, it is believed, the Wheeler case should not be regarded as controlling the decision of this case.

Independently of everything else that has been said all the conditionally submitted issues were answered. The conditional submission, did not, therefore, result in depriving appellant of a verdict upon said issues. If the conditionally submitted issues had been “converse issues” (which, as shown, they were not), the reason why appellant would have had the right to object to their conditional submission was because of the hazard of being deprived of a verdict upon such issues. But what harm can possibly have resulted when the unconditional issue is answered in such way as to require answers to the conditionally submitted issues and the latter are in fact answered? It seems to me it would be hard to imagine a better example of an error affirmatively shown by the record to have been harmless. I Should regard this conclusive, except for the fact that the same thing could have been said of the Wheeler Case.


author: O’QUINN, Justice.

text:
    STRIPLING, County Judge, v. LAKEY et al.
    No. 3652.
    Court of Civil Appeals of Texas. Beaumont.
    March 28, 1940.
    Charles McMillan and Ben Ramsey, both of San Augustine, for appellant.
    Minton & Minton, of Hemphill, and John F. McLaurin, of San Augustine, for appel-lees.
   O’QUINN, Justice.

This case is before us without brief for either party. The appeal is dismissed for want of prosecution.


author: BROWN, Justice.

text:
    WILSON v. J. I. CASE CO.
    No. 14058.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1940.
    Rehearing Denied May 3, 1940.
    Geo. M. Hopkins, of Denton, for appellant.
    Smithdeal, Shook & Lefkowitz, of Dallas, for appellee.
   BROWN, Justice.

. Appellant Herbert B. Wilson sued ap-pellee J. I. Case Company, a private corporation, in the Justice of the Peace Court in Denton County, the suit being filed October 14, 1938, and on October 25, 1938, the defendant filed its plea of privilege to be sued in Dallas County, where it has its domicile.

On November 1, 1938, the plaintiff filed a controverting affidavit, but no ■ notation was made on such controverting plea (or on the docket of the Justice of the Peace) stating a time for a hearing on the plea of privilege, and no notice of such controverting plea and of a hearing thereon was ever given the defendant — all of which is expressly required by Article 2008, Rev. Civ.Statutes, unless the parties to the cause agree upon a date for such .hearing.

We find in the record that on November 26, 1938, the Justice of the Peace undertook to continue the hearing on the plea and controverting affidavit until December 27, 1938, “without prejudice”. No reason is given for entering such order and it does not appear that any party made application for such an order.

The Justice of the Peace, on December 27, 1938, overruled the defendant’s plea of privilege and put the parties- to trial on the merits, and entered judgment for the plaintiff.

The defendant appealed to the County-Court of Denton County, and, when the cause was heard, the trial court sustained the defendant’s plea of privilege and ordered the cause transferred to Dallas County.

From such judgment the plaintiff below has appealed.

The plaintiff, by not complying with the express provisions of Article 2008, Rev. Civ.Statutes, has waived his right to contest the defendant’s plea of privilege. Hall v. Butereg Co., Tex.Civ.App., 114 S.W.2d 403; Pyle-Williams & Co. v. De Bord, Tex.Civ.App., 287 S.W. 143; Cochran v. Crow, Tex.Civ.App., 4 S.W.2d 1038; Scruggs v. Gribble, Tex.Civ.App., 41 S.W.2d 643; Commercial Standard Insurance Co. v. Lowrie, Tex.Civ.App., 49 S.W.2d 933; Alpha Petroleum Co. v. Gray, Tex.Civ.App., 103 S.W.2d 1047; Panther Oil & Grease Mfg. Co. v. Crews, Tex.Civ.App., 124 S.W.2d 436.

An examination of the authorities cited will show that it has been uniformly held that the court before which the cause is to be tried must, when a controverting affidavit is filed in contest of a plea of privilege, make a notation thereon, setting a time for a hearing on such contest, within the term of court at which the plea is filed, and that notice must be served upon the defendant or his attorney, unless such notice be expressly waived, and that the contest must be heard at the term of court to which the defendant was cited to appear, unless the business of the court will not permit of such hearing, or unless the parties litigant.agree upon a time for hearing the contest, with consent of the trial court.

None of these requirements were met by the plaintiff, and the record discloses that the defendant did not waive them or any of its . rights under said Article 2008.

The judgment must be affirmed.


author: COMBS, Justice.

text:
    BRYAN v. CLEVELAND SAND & GRAVEL CO.
    No. 3645.
    Court of Civil Appeals of Texas. Beaumont.
    April 20, 1940.
    Rehearing Denied May 1, 1940.
    R. J. Dillard, of Cleveland, for appellant.
    R. E. Biggs, of Liberty, for appellee.
   COMBS, Justice.

Appellant Bryan brought this suit against appellee, Cleveland Sand & Gravel Company, a private corporation incorporated under the laws of Texas. Briefly stated, plaintiff alleged that he was one of the incorporators and stockholders of the defendant company; that for a time he acted as its manager and general superintendent, and he resigned because of difficulties with the directors. He alleged that he was entitled to 20 shares of the capital stock with par value of $500 each, and that the board of directors had refused to issue such stock to him. He sought judgment for $675 for services rendered and for the value of 20 shares of the corporate stock owned by him, with a par value of $500 each, which he alleged the directors had converted, or in the alternative judgment compelling the directors to issue certificate for the 20 shares of capital stock. After the defendant filed its answer, appellant, as plaintiff, filed a plea in abatement seeking to have the answer stricken on the ground that the Secretary of State had forfeited the right of the defendant to do business in Texas for failure to pay its franchise tax. He attached to the motion certified copies of the order of forfeiture.

On a trial to the court without a jury, the trial judge denied plaintiff’s prayer for a money judgment, but ordered the directors of the defendant company to issue certificates for 10 shares of the capital stock of the defendant company to the plaintiff. From that judgment the plaintiff has appealed.

Opinion.

We think the judgment of the trial court should be affirmed. The trial judge heard all of the evidence, and his judgment denying appellant recovery of a money judgment, but ordering certificates for 10 shares of the capital stock to be issued to’ him, instead of the 20 shares he sought, has ample support in the evidence.

We overrule appellant’s contention that the defendant company was denied the right to make any defense to his suit by reason of the fact that its right to do business had been forfeited for failure to pay the franchise tax. Vernon’s Ann.Civ.St. art. 7091 denies to a corporation, whose right to . do business has been forfeited by the Secretary of State for failure to pay franchise tax, the right to any affirmative relief in the courts of Texas, either as a party plaintiff or by way of a cross-action in a suit wherein it has been made a defendant. We do not understand our courts to hold that such a corporation cannot interpose a defense purely negative in character against a suit brought against it, grounded upon matters which arose during the time it was lawfully engaged in business. That is to say, the plaintiff in such case is still under the duty of establishing his cause of action, and the corporate defendant may, as in the instant case, offer proof which negatives the plaintiff’s case. Real Estate-Land Title & Trust Company v. Dildy, Tex.Civ.App., 92 S.W.2d 318. Writ refused.

The judgment of the lower court is affirmed.

Affirmed.


text:
    UNITED EMPLOYERS CASUALTY CO. v. KNIGHT.
    No. 3617.
    Court of Civil Appeals of Texas. Beaumont.
    March 7, 1940.
    Rehearing Denied April 3, 1940.

      Henry D. Akin and Will R. Saunders, both of Dallas, for plaintiff in error.
    Collins, Pate, Hatchell & Garrison, of Lufkin, for defendant in error.
   O’QUINN, Justice.

We shall refer to the parties as appellant and appellee.

This is a workmen’s compensation case. A. R. Starling, as next friend of Robert L. Knight, filed this suit in the district court of Angelina County, Texas, against appellant to set aside an award of the Industrial Accident Board of the State of Texas, and to recover compensation. Pending the trial of the case, appellee became of age, and was granted permission to prosecute the suit in his own name. Appellant answered by general demurrer and general denial.

The case was tried to a jury upon special issues upon their answers to which judgment was rendered in favor of appellee setting aside the award of the Board, and granting compensation for 100 weeks at the rate of $12 per week. Motion for a new trial setting up 61 assignments of error was overruled, and the case is before us on writ of error.

Appellant’s brief contains 25 assignments of error upon which are presented 14 propositions.

The first proposition complains of the improper submission of special issue 12. It reads: “Do you find from a preponderance of the evidence that plaintiff’s partial loss of the sight of his right eye, if any, has not been and will not be only temporary”? Appellant objected to this issue that it was multifarious and duplicitous in that it first inquired “concerning temporary partial loss in the past and then in the same issue makes inquiry of temporary partial loss in the future and requests the jury to answer” yes or no to two different questions which should have been submitted separately. As supporting its assignment it cites Traders & General Ins. Co. v. Shelton, Tex.Civ.App., 130 S.W.2d 903, as being directly in point. In the cited case, the issue read:

“Has or will plaintiff, A. B. Shelton, suffer any partial incapacity to labor as a result of the injuries, if any sustained on November 17, 1936? Answer ‘Yes’ or ‘No.’
“If you find from a preponderance of the evidence that he has not or will not suffer any partial incapacity, let your answer be ‘No,’ otherwise you will answer ‘Yes.’”

This issue was objected to on the grounds that it was “misleading and duplicitous”. The appellate court held that the issue was subject to the objection, but as we read the decision it was because of the instruction how to answer following the issue. The instant issue is not framed as in the Shelton case; the word “and” being used instead of “or” in the issue, and the instant issue is not followed by the instruction how to answer as in the cited case. We do not believe the issue is subject to the objection that it is multifarious. The material inquiry was whether the partial loss of vision was temporary. Our holding is supported by Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, par. 11, writ dismissed; Fidelity & Casualty Co. v. Branton, Tex.Civ.App., 70 S.W.2d 780, par. 13, writ dismissed; Missouri Pac. R. Co. v. Guillory, Tex.Civ.App., 28 S.W.2d 282, writ refused, certiorari denied, 283 U.S. 849, 51 S.Ct. 495, 75 L.Ed. 1457; Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837, 841, writ dismissed. The use of the word “only” in the issue did not make the submission conditional.

What we have said disposes of the second and third propositions.

The court submitted special issue No. 9, which reads: “Do you find from a preponderance of the evidence that Robert L. Knight has sustained a partial loss of the sight of his right eye as a direct and natural result of said injury, if any”? This was answered “Yes”. The court then further charged:

“If you have answered special issue No. 9 ‘Yes’ but in such event only you will answer:
“Special Issue No. 14: What percentage of loss of the sight of his right eye, if any, do you find from a preponderance of the evidence Robert L. Knight has sustained”?

The jury answered “80%”. To this issue appellant objected (a) that the issue was “too restrictive and does not comprehensively and adequately present the defendant’s theory of the case to the effect that if the plaintiff sustained any partial loss of sight at all he has sustained such loss in a varying degree, that is, that there has been a series of percentages which have decreased from the date of December, 1938, until the present time, and said issue permits the jury to answer a certain percentage of loss on any arbitrary date the jury may see fit”; (b) that the issue was improper and prejudiced the rights of the defendant in that, as worded, it permitted the jury to answer a percentage of loss on any arbitrary date, and which under the charge would be constant and not varying, whereas under the evidence plaintiff may have been suffering a certain percentage one day, and less on another, and so not proper, and the issue was also objectionable because it did not permit the jury to take into consideration any improvement of plaintiff’s condition in the future, and so imposed upon the defendant a greater burden than the law required. The contention is not sound. The issue was not subject to the objections urged against it. There was no suggestion as to the form the inquiry should take to meet the suggestion of sliding incapacity. We fail to find anything helpful in the criticism offered. Ohio Casualty Ins. Co. v. Stewart, Tex.Civ.App., 76 S.W.2d 873; Wichita Valley Ry. Co. v. Minor, Tex.Civ.App., 100 S.W.2d 1071; Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153. Also, in appellant’s objection to said issue, it complained that the court had not submitted' to the jury its theory of the case and moved the court to prepare and submit to the jury an issue “concerning the different degree of percentage of partial incapacity from time to time in the past, future,” etc., but did not prepare an issue submitting this question and request its submission. Where the court fails to charge upon any particular phase of the case deemed necessary, in order to complain of this omission the party complaining must prepare an issue covering the matter and submit it to the court with a request for its submission. Gulf, C. & S. F. Railway v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. Railway v. Crow, 132 Tex. 465, 123 S.W.2d 649.

What we have said disposes of appellant’s Fifth proposition. Furthermore, the matter complained by the fifth proposition was not raised by the evidence.

Appellant’s sixth to thirteenth propositions, inclusive, presented grouped, complain that the court erred (a) in admitting evidence over its objection as to expected increases in the wages of appellee after September 29, 1938 (the date of his injury), for the reason that such evidence could not have any bearing on the issue of wage rate; (b) that the court erred in his charge immediately following special issue No. 19, which inquired what an average weekly wage rate just and fair to both parties would represent appellee’s weekly wage, and further instructed the jury that in arriving at their answer the jury could consider any increase in appellee’s wages which he might reasonably expect, if any, under normal conditions, because such instruction amounted to a general charge, and was prejudicial to appellant; (c) that issue 19 did not confine the jury to considering the wage appellee had received during the year immediately preceding the date of the injury; (d) that issue 19, and the instruction therewith that the jury in finding the average weekly wage of appel-lee could consider any increase, if any, in his wages he had reason to expect under normal circumstances, was error because it did not confine the jury to the period of time between the accident and appellee’s reaching his majority for in that expectation of increase of wages should not be considered for the time after appellee reached his majority; (e) that such charge was error and not applicable under the facts because appellee had received a specific injury and had continued to perform the same kind of work as before the injury without loss of time; (f) that in connection with issue 19 it was error to charge the jury in answering the question they could consider any expected wage increase for appellee by pleading and proof had brought himself under the provisions of subdivision I of the wage rate statute (Article 8309, § 1 — Average weekly wages), and so could not avail himself of the provisions of subdivision 3 of said statute; and (g) that the judgment of the court 'allowing appellee compensation at the rate of $12 per week was error (a) because in response to special issue 19, the jury found that an average wage for ap-pellee, taking into consideration any increase of wages which he might reasonably expect, would be just and fair to both parties; and (b) because the jury in answer to special issues 15 and 16, had found that appellee had worked for substantially the whole of the year immediately preceding the injury in the employment in which he was engaged at the time he received his injury, and that during that time he received the sum of $2 per day for his services, thereby finding and fixing his wage rate under subsection I of Article 8309, R. S.1925, the judgment not conforming to the verdict of the jury; and (c) because the judgment was excessive; and (d) because the injury received was a specific injury and hence no increase of wages were lost and could not be considered.

It is seen that these assignments relate to various different matters and under the rules are improperly grouped for consideration. However we have considered them. We do not believe the special issues submitted, arid here complained against, were subject to the objections urged. They were in accordance with the pleadings and were raised by the evidence. As the jury found that appellee had worked for the same employer for substantially the whole of the year immediately preceding his injury, during which time he received $2 per day for his services, we take it that the gist of appellant’s assignments is that, though appellee was a minor at the time he received his injury, still the jury should not have been authorized to consider any increase in his wages that he might have reasonably expected to receive in arriving at his average weekly wage. We think the contention is without merit. Article 8306, Section 12i, provides: “If it be established that the injured employe was a minor when injured and that under normal condition his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages and compensation may be fixed accordingly”.

The evidence disclosed that appellee was a minor at the time he received his injury, and at the time this suit was filed by next friend. He attained his majority while the suit was pending, and was permitted to prosecute the suit in his own name, but this did not affect his right to assert his expected increase in his wages. The evidence supported his expectation of an increase in his daily wage. Appellee has worked as an apprentice at the tinner’s and welder’s trade for nearly three years — he would have soon completed that work and would then have received a master’s pay which was between three and four times the amount he received at the time of his injury. He had received two increases in pay during prior work. Associated Indemnity Corp. v. Wilson, Tex.Civ.App., 21 S.W.2d 314, writ refused; Georgia Casualty Company v. Darnell, Tex.Civ.App., 243 S.W. 579. As was held in the Wilson case, supra, the fact that appellee was entitled to have the jury consider his reasonable expectancy of increased wages, furnished good and sufficient reason for it being impractical to find his average wage under sections 1 or 2 of the statute, thus rendering special issues 15, inquiring whether ap-pellee worked at the employment in which he was working at the time he received his injury for substantially the whole of the year immediately preceding such injury, and special issue 16, inquiring the daily wage appellee actually received during the year immediately preceding his injury and the answers to such issues, immaterial, as the average weekly wage should be determined, as it was, under subdivision 3 of the statute.

We overrule appellant’s fourteenth proposition asserting error in the judgment because it allowed compensation for one hundred weeks for partial loss of the sight of the right eye, beginning December 18, 1938, when the alleged injury occurred September 29, 1938, wherefore the weeks intervening the date of injury and the commencement of incapacity, the compensation should be deducted from the one hundred weeks. Texas Employers’ Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900; Jones v. Texas Employers’ Ins. Ass’n, 128 Tex. 437, 99 S.W.2d 903; Texas Employers’ Ins. Ass’n v. White, Tex.Com.App., 99 S.W.2d 904; and Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905, are cited as controlling the question. We do not believe these decisions have application to the instant case. There the actions were based upon Sec. 10 of Article 8306, R.S. 1925, which specifically provides that the weekly compensation shall not exceed the number of weeks allowed from the date of the injury. In other words the statute itself. provides when the time of compensation shall begin and that is the date of the injury. The claim for compensation in the instant case is for a specific injury, namely damage for loss of the sight of the right eye. This falls under Sec. 12 of Article 8306, which does not provide that the compensation allowed shall begin or date from the date of the injury. The compensation is granted for the period of one hundred weeks. The statute, Sec. 12, provides that the injured employee shall receive, in lieu of all other compensation, as elsewhere provided, a weekly compensation for the specific injuries enumerated, in this instance compensation for one hundred weeks. It is believed that this makes the compensation in the nature of a liquidated demand entitling the claimant to his full compensation.

No reversible error being shown, the judgment should be affirmed, and it is so ordered.

Affirmed.


text:
    MAZZOLA et al. v. LUCIA.
    No. 3601.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1940.
    Rehearing Denied April 10, 1940.
    K. W. Stephenson, of Orange, for appellants.
    Bruce & Bruce, of Orange, for appellee.
   O’QUINN, Justice.

June 13, 1938, Annie Mazzola, joined by her husband, Bennedetto Mazzola, filed this suit in the district court of Orange County, Texas, against Sam Lucia, in trespass to try title to recover the title and possession of lots 7 and 8 in block 52, and lot 12 in block 93 of the Amended Sheldon Survey of the City of Orange, Texas. Thereafter, on October 6, 1938, said plaintiffs filed their first amended original petition in trespass to try title to the property described in their original petition, and in the alternative to set aside a certain judgment theretofore rendered in cause 6754 in the district court of said Orange County, wherein Sam Lucia was plaintiff and Bennedetto Maz-zola, Independent Executor of the estate of Mike Lucia, was defendant, involving the same parties and the same property, as in the instant suit. As grounds for annulling and setting aside the said judgment, plaintiffs alleged that said judgment was procured by defendant Sam Lucia against the plaintiffs Annie Mazzola and Bennedetto Mazzola, individually, and Bennedetto Maz-zola as Independent Executor of the estate of Mike Lucia, deceased, by deception, misrepresentations and fraud, alleging the acts of fraud and misrepresentations in great detail.

On October 6, 1938, appellee, Sam Lucia, answered by general demurrer, general denial, plea of not guilty, and by plea of res adjudicata to the cause of action asserted to set aside the judgment mentioned in plaintiffs’ amended petition.

June 16, 1939, Harry D. Wheeler, and his wife, Alma Wheeler, applied for permission to intervene, alleging that they, as Undertakers, were interested in the estate of Mike Lucia, deceased, in that they had á claim for burial services and furnishings against the estate, and thus sought recognition to assert said claim, and prayed for judgment accordingly. Permission to intervene was refused. In this there was no error.

Hearing on the pleadings of plaintiffs was had on October 6, 1938, and defendant Sam Lucia’s general demurrer was sustained, and plaintiffs given permission to amend, and given until the January term of court, 1939, to make such amendment. At this term the cause was continued by consent of the parties. At the June term, 1939, plaintiffs amended their petition by inter-lineations, this by consent of the parties and the court. June 16, 1939, the cause was called and defendant’s general demurrer was again sustained against plaintiffs’ petition, and permission to further amend was refused, and the cause dismissed. From that order we have this appeal.

We have concluded that the judgment should be affirmed. As stated appellants’ petition.was in trespass to try title, and in the alternative to set aside the judgment theretofore rendered in cause No. 6754, Mazzola v. Lucia, Tex.Civ.App., 109 S.W.2d 273, the district court of Orange County, involving the same parties and the same property as here. In that suit Sam Lucia sued Annie Mazzola and her husband Bennedetto Mazzola individually,' and Bennedetto Mazzola in his capacity as independent executor of the estate of Mike Lucia, deceased, who was the father of Annie Mazzola and Sam Lucia, to obtain judgment on a note owed him by Mike Lucia, deceased, and to foreclose a mortgage on the property ’here involved given him by Mike Lucia at the time of the execution of the note, to secure the payment of the note. Annie Mazzola and her husband, on their exceptions, were dismissed from the suit, and the case was prosecuted to judgment against Bennedetto Mazzola as independent executor of the estate of Mike Lucia, deceased. Under this judgment foreclosing the mortgage the property was sold and bought in by Sam Lucia. The deed from the officer making the sale to Sam Lucia vested the title of Mike Lucia in Sam Lucia. The note was a debt against the Mike Lucia estate, and the Mazzolas had every opportunity to present every fraud fact plead by them in the present suit, but instead ’of presenting whatever defense they had, they refused to contest the matter in that suit and on their own motion were dismissed from the suit. Mazzola v. Lucia, Tex.Civ.App., 109 S.W.2d 273. Application for writ of error was refused. Appellants’ petition herein disclosed the facts of the-judgment, foreclosure and sale and deed to Sam Lucia, and it thus became necessary for them to remove the deed to Sam Lucia under the foreclosure sale, before they could proceed to try the suit in trespass. Herndon v. Hayter, Tex.Civ.App., 28 S.W.2d 885, writ refused; Brunson v. Yount Lee Oil Co., Tex.Civ.App., 32 S.W.2d 893, affirmed 122 Tex. 237, 56 S.W.2d 1073. Lynch v. First Nat. Bank, Tex.Civ.App., 50 S.W.2d 418. The only interest Annie Mazzola had in the property was as an heir of her father, Mike Lucia, and as his title was vested in Sam Lucia by virtue of the foreclosure sale under the mortgage, appellants’ petition on its face disclosed no title in them. Not being entitled to set aside the judgment in cause 6754; and the consequent sale and deed to Sam Lucia, they could not maintain their suit in trespass.

The judgment is affirmed.