author: HAWKINS, Presiding Judge.

text:
    GRIFFITH v. STATE.
    No. 21463.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    For former opinion, see 148 S.W.2d 429.
    J. E. Faulkner, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant insists that Bills of Exception Nos. 1 and 2 complaining of the introduction in evidence of the two letters which the District Attorney had written to appellant manifest reversible error even in the absence of a statement of facts.

The trial court qualified the bills to show that when the letters were admitted in evidence, he instructed the jury that the letters could not be considered as any evidence as to the truth of the matters therein stated but could only be considered on the issue of appellant’s knowledge of his wife’s condition, if that condition had been shown to be true.

In the absence of the facts proven, we are still unable to say that the receipt of the letters in evidence should bring about a reversal. Every matter mentioned in the letters may have been proven to be true beyond question. The case of Peterson v. State, Tex.Cr.App., 70 S.W. 978, relied on by appellant, seems to be an aggravated case where the bills of exception, even in the absence of a statement of facts, showed proof of things with which the accused was entirely disconnected.

Believing the case to have been properly decided, the motion for rehearing is overruled.


source: Caselaw Access Project

license: Public Domain

text:
    HORNER et al. v. STATE.
    No. 21600.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    Duhig & Romberg, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Bethel Horner, C. R. Graham, and Adeline Graham were- jointly charged and prosecuted for the theft of an automobile of the value of less than fifty dollars. Upon conviction, Adeline Graham’s punishment was assessed at sixty days’ confinement in the county jail, and the punishment of Bethel Horner and C. R. Graham was fixed for each at one year’s confinement in the county jail. Only the two last named appealed.

Each of them has now filed his affidavit advising this court that he does not desire to further prosecute said appeal, and upon their request the appeal is dismissed.


author: CHRISTIAN, Judge.

text:
    HENNINGTON v. STATE.
    No. 21544.
    Court of Criminal Appeals of Texas.
    April 2, 1941.
    Otis Rogers and Nelson Scurlock, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, confinement in jail for two years.

The count of the information under which appellant was convicted, omitting the formal parts, read as follows : “Sherman Hen-nington * * * did unlawfully commit an aggravated assault and battery in and upon Mrs. B. S. Singleton, by means which inflict, and did inflict, disgrace upon the said Mrs. B. S. Singleton, to-wit, by grabbing hold of her person and exposing in her presence, his, the said defendant’s, private parts, all against her will and without her consent, the said defendant being then and there a male person and the injured party being then and there a female.”

Appellant is a negro boy. Mrs. Singleton testified that on the 23rd of July, 1940, between 11 and 12 o’clock.in the morning, as she was returning to her home from a beauty shop, appellant stepped out of some grass and weeds and grabbed her by the arm. She struck appellant with her umbrella, started screaming, and ran away from him. While she was running, a delivery truck driven by an employee of a drygoods company came up to her. She entered the truck and was driven to her home. Appellant did not testify but introduced witnesses whose testimony raised the issue of alibi. Several witnesses for appellant testified that his general reputation as a peaceable and law-abiding citizen was good.

There was no proof that appellant exposed his private parts, as charged in the information, and there was no proof that he said anything to Mrs. Singleton at the time he grabbed her by the arm. Under the circumstances, we gravely doubt whether the evidence is sufficient to support a conviction for aggravated assault. At all events, the issue of simple assault should have been submitted to the jury. In Davis v. State, 96 Tex.Cr.R. 235, 257 S.W. 254, 255, it appears that a minor took hold of a girl’s arm with both hands. When she remonstrated he put his arm around her and tried to put his hand over her mouth, this occurring while the girl was going home from school along a path through pasture lands. In that case Davis requested the following special charge:

“You are instructed that, even though you may believe from the evidence beyond a reasonable doubt that the defendant placed his hands upon or his' arm about the prosecuting witness, Alice Green, yet unless you believe from the evidence beyond a reasonable doubt that in so doing the defendant did so through lust or with intent to fondle her person, you cannot convict defendant of an aggravated assault. In other words, if you believe or have a reasonable doubt from the evidence that in so doing, if he did, the defendant intended merely to detain the said Alice Green for some innocent purpose, then and in that event you will acquit the defendant of the offense of aggravated assault.”

In holding that the charge should have been submitted to the jury, Judge Latti-more, speaking for the court, used language as follows:

I “Bearing in mind that appellant was a minor and that the taking hold of another person against his will or consent would be but a simple assault, except it came under •one of the subdivisions of article 1022 of the Penal Code [Vernon’s Ann. P.C. art. 1147], the question arises as to whether we would be justified in holding as a matter of law that a male person could not touch or grasp the arm of a female against her consent for any innocent purpose or without same being indecent familiarity. If not so justified, then it was error for the learned trial judge to withhold from the jury such issue of fact. There seems no dispute of the proposition that this boy caught this girl by the arm, and thus detained her; nor of the fact that he put his arm around her when she tried to escape. This was unquestionably wrong, and should subject him to punishment — greater or less — according to his purpose. What was his purpose? If to violate this girl, or fondle her person, it would be an offense greater than if to detain her for a purpose -not disgraceful. Who was to decide what his purpose was? There can be but one answer: The jury under appropriate instructions. How could the jury der cide such issue when the court refused to submit same to them? -In our opinion this charge, or one embodying' this principle, should also have been given. While it is the law that a man who in any way makes an assault upon a female is guilty of aggravated assault, this is not true of a minor, and, unless there be ground of aggravation other than the mere fact that the minor charged took hold of the female, he would not necessarily be guilty of an aggravated assault. If what we have said be correct, it would follow that the issue of simple assault would be involved where the question of the indecent character of the assault was left in doubt upon the facts.”

In the present case the court fell into error in declining to submit a requested instruction of the appellant which was couched in substantially the same language as that dealt with in the Davis case.

The court should have defined the term “indecent familiarity” as that term is defined in Davis v. State, supra. Also the jury should have been instructed to acquit appellant unless they believed beyond a reasonable doubt that the assault upon the prosecutrix, if any, was indecent. Requested instructions touching the matter were timely presented to the court.

The trial court declined to permit, after proper predicate had been laid, testimony by a witness to the effect that appellant’s general reputation as a peaceable and law-abiding citizen was good. The objection of counsel for the state was to the effect that no proper predicate had been laid and that appellant had not taken the witness stand. Appellant was not required to take the witness stand before he could introduce proof touching his general good reputation in the respect mentioned. The court was in error in his ruling.

Over proper objection by appellant, a witness who had testified that his general reputation as a peaceable and law-abiding citizen was good was permitted to testify upon cross-examination by the state that she had seen a statement in the paper to the effect that appellant had indecently exposed his person in a public place. The offense inquired about occurred at a date later than the offense for which the appellant was on trial. Appellant’s objection should have been sustained. We quote from Kitchens v. State, 111 Tex.Cr.R. 45, 10 S.W.2d 999, 1001, as follows:

“It is the rule that a witness to the good character of the accused may be asked upon cross-examination whether he had heard rumors of particular charges or acts of the accused inconsistent with the character the witness is called to prove, not to establish the truth of such charges, but to test the credibility of the witness and enable the jury to weigh his evidence. Townsley v. State, 103 Tex.Cr.R. 508, 281 S.W. 1054.
“An exception to the rule stated is that the inquiry touching the past conduct of the accused, of which the witness has heard, must be confined to happenings antecedent to the commission of the offense for which the accused is on trial.”

The judgment is reversed and the cause remanded.

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: BEAUCHAMP, Judge.

text:
    MILTON v. STATE.
    No. 21539.
    Court of Criminal Appeals of Texas.
    April 2, 1941.
    John M. Mathis, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted on a charge of cattle theft and sentenced to two years in the penitentiary.

The procedure appears to be regular. No statement of facts or bills of exception are presented, and there is nothing for this court to review.

The judgment of the trial court is affirmed.


author: KRUEGER, Judge.

text:
    MILTON v. STATE.
    No. 21540.
    Court of Criminal Appeals of Texas.
    April 2, 1941.
    John M. Mathis, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for theft of cattle. The punishment assessed is confinement in the state penitentiary for a term of five years.

The record is before us without any bills of exception or statement of facts. The indictment appears to be regular and in due form.

We note, however, that in' sentencing appellant, the trial court failed to make application of the Indeterminate Sentence Law. The judgment and ' sentence ' will therefore be reformed so as to condemn appellant to confinement in the state penitentiary for a term of not less than two nor more than five years; and, as reformed, the judgment is affirmed.

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: . BEAUCHAMP, Judge.

text:
    ANDERSON v. STATE.
    No. 21534.
    Court of Criminal Appeals of Texas.
    April 2, 1941.
    E. T. Brooks, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . BEAUCHAMP, Judge.

This prosecution originated in the justice court where a fine of $5 was assessed against appellant for malicious mischief. Upon appeal to the county court the jury assessed a penalty of $50, from which appellant attempts to bring the case to this court on appeal.

This court has no jurisdiction under the record as presented, and the appeal is accordingly dismissed.


text:
    PARKS v. STATE.
    No. 21536.
    Court of Criminal Appeals of Texas.
    April 2, 1941.
    Willis & Via, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of. Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted for the murder with malice of Boyd Wilkinson, and his punishment assessed at confinement in the penitentiary for ninety-nine years.

No statement of facts has been-brought forward. The only exceptions we find relate to the refusal of quite a number of special charges which were requested. We observe that most of them appear to have been covered in the main charge-given by the court, and such as were not so included cannot be appraised in the absence of a statement of facts.

The judgment is affirmed.


text:
    BIANCHI v. STATE.
    No. 21538.
    Court of Criminal Appeals of Texas.
    April 2, 1941.

      O. Shelley Evans, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, a fine of one hundred dollars.

The term of court at which appellant was convicted adjourned February 3, 1940. On the 19th of January, 1940, appellant executed an appeal bond which was approved by the sheriff on the same day and by the county judge on the 23rd of January, 1940. Stated in another way, appellant was released under an appeal bond during the term' of court at which he was convicted. He should have entered into a proper recognizance. Under the circumstances, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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


author: NORVELL, Justice.

text:
    MEADOWS v. FIRST NAT. BANK OF HARLINGEN.
    No. 10928.
    Court of Civil Appeals of Texas. San Antonio.
    March 19, 1941.
    Brown & Criss, of Harlingen, for appellant.
    Carter & Stiernberg and Osee Fristoe, all of Harlingen, for appellee.
   NORVELL, Justice.

This is an appeal from an order of dismissal entered after the sustaining of a general demurrer to appellant’s petition and his refusal to amend. Appellant, D. B. Meadows, here contends that the stricken petition asserted three causes of action or theories of recovery against appellee, First National Bank of Harlingen, based upon (1) the malicious prosecution' of a civil suit, (2) the malicious breach of contract on the part of the bank in refusing to pay checks drawn by appellant upon funds held by the bank subject to appellant’s check, and (3) an unreasonable, unwarranted and oppressive method used by the bank for the collection of a debt known to have been paid and not then owing, which directly resulted in the violation of Meadows’ “right of privacy.”

Actual damages prayed for were as follows :

1. Attorney’s fees expended in defending the lawsuit alleged to have been instituted maliciously and without probable cause —$50.

2. Time expended by appellant in preparing his defense to said suit — $175.

3. Mental anguish, nervousness and worry, humiliation and embarrassment suffered by appellant and his wife — approximately $4,800.

Appellant also prayed for the recovery of exemplary damages in the sum of $5,000.

The order or judgment appealed from contains the following recitals and holdings : “Counsel for plaintiff (appellant) stated in open court that plaintiff (appellant) was not suing defendant (appellee) for any money detained on deposit or for interest on any money detained, and the court was of the opinion that plaintiff (appellant), under the allegations of his petition, is not entitled to the several items of damage therein sought to be recovered, but that said petition only stated a cause of action for nominal damages below the jurisdiction of this court, and that the defendant’s (appellee’s) general demurrer to said petition should be sustained.”

“The rule in Texas is that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury. There can be no recovery of exemplary damages in the absence of a recovery of actual damages. A verdict of nominal actual damages is not sufficient.” Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409.

If, therefore, the particular items of actual damages prayed for in the petition, at- • torney’s fees, time expended, mental anguish or disturbance suffered, can not be recovered as such, the order of dismissal was the only order which could have properly been entered by the trial court, as a district court has no jurisdiction over an action of this character when only nominal actual damages can be recovered under the pleadings.

Although appellant’s petition is very lengthy and detailed, especially the part thereof, relating to the charge of malice and the resultant mental disturbances suffered by appellant, the controlling allegations, stripped of their descriptive adjectives, may be briefly stated as follows:

On April 11, 1935, appellant owed the bank $1,941.93 upon a note. He gave the bank some security for this note, under an agreement that if the note was not paid upon maturity, the bank should take the security in satisfaction of the note.

Appellant complied with this agreement, conveyed the security to the bank in full payment and satisfaction thereof, but failed to secure the return of the note.

About September, 1939, the bank, then having possession of the note, demanded payment thereof and threatened suit thereon. On October 19, 1939, the bank informed appellant that it would refuse to honor the checks of appellant and his wife, drawn against various accounts in the bank, until appellant made a settlement of the note in question. The bank also brought suit upon the note the same day.

On November 3, 1939, this suit was dismissed at the cost of the bank.

While the suit was pending, the bank refused to honor certain checks, drawn by appellant and his wife. It seems that one of these checks, in the amount of $3, was taken up by appellant. Payment upon a part of the remaining checks issued during this period was delayed but ultimately made by the bank. The bank made no further attempts to impound appellant’s funds or to dishonor his or his wife’s checks after November 3, 1939.

Appellant filed suit for cancellation of the note involved and upon the bank’s disclaimer, a judgment in his favor was entered on January 29, 1940'.

The bank knew that the note involved had been paid, and yet instituted suit thereon maliciously and without probable cause. All of the acts complained of were done by the bank in an effort to take an unconscionable advantage of appellant and force him to pay a debt he did not legally owe. These acts caused appellant and his wife extreme 'mental anguish and emotional disturbance. In this connection, appellant pleaded various circumstances surrounding his family, such as the fact that he had children in college dependent upon him for financial support, and that because of the bank’s actions he was unable to send money to his children.

We now examine the first theory of recovery advanced by appellant, i. e., the malicious prosecution of a civil suit. We are of the opinion that the petition fails to state a cause o,f action in this particular, for the reason that it does not appear from the petition that an interference with, or seizure of, appellant’s property resulted from or was incident to the filing of the suit on the note. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153. Appellant argued that the action of the bank, in arbitrarily withholding appellant’s funds subject to check, constituted an interference with or seizure of property. The action of the bank in dishonoring appellant’s checks did not result from the invocation of judicial authority or any legal process incident thereto, and for this reason the contention of appellant must be overruled.

The above holding disposes of the first theory of recovery (malicious prosecution) and the first two items of alleged actual damages, attorney’s fees, and loss of time, etc., which were incident to the defense of the unfounded action brought by the bank against appellant. Clearly, these items could not be recovered as actual damages incident to the second and third theories of recovery advanced by appellant. It is not necessary for us to decide whether or not such items are recoverable as actual damages in a suit for malicious prosecution, as we have held that the petition here fails to assert a cause of action in that respect.

The only remaining element of actual damages prayed for by appellant is that of mental anguish or emotional disturbance. In State National Bank of Iowa Park v. Rogers, Tex.Civ.App., 89 S.W.2d 825, it was held that damages for mental suffering occasioned by the bank’s dishonoring a check drawn by plaintiff could not be recovered as actual damages. This holding disposes of appellant’s second theory of recovery, and leaves for consideration the theory of recovery based upon what appellant terms an invasion of his “right of privacy.”

Under this theory, appellant asserts that the petition discloses one of those causes of action wherein a pecuniary recovery is allowed for mental and emotional disturbance, even thpugh no other grounds are pleaded as a basis for an award of actual damages. In this connection, we have read, with a great deal of interest, the authorities cited by appellant, particularly the article entitled “Mental and Emotional Disturbance in the Law of Torts” by Calvert Magruder, in 49 Harvard Law Review, 1033, and the cases therein discussed.

We are, however, of the opinion that, as above pointed out, mental and emotional disturbance is not an element of actual damages recoverable because of the wrongful action of a bank in dishonoring a check.' We further conclude that the case presented by appellant’s petition is not one of those in which actual damages for mental distress are recoverable upon the theory that appellant’s “right of privacy” has been violated.

The order of dismissal entered by the trial court was correct, and is accordingly affirmed.


author: SPEER, Justice.

text:
    TRADERS & GENERAL INS. CO. v. W. L. TURNER.
    No. 14180.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1941.
    Rehearing Denied April 11, 1941.

      John D. McComb, of Jacksboro, and Lightfoot, Robertson & Gano, of Fort Worth (E.- B. Robertson, of Fort Worth, of counsel), for appellant.
    Lowell Crosier and Gean B. Turner, both of Cleburne, and Allen Crowley,’ of Fort Worth, for appellee.
   SPEER, Justice.

This suit arose under the Workmen’s Compensation Act, Vernon’s Ann.Civ.St. art. 8306 et seq. W. L. Turner was the employee, and will be referred tó in this opinion as appellee; R. H. Dearing & Sons were the employers and will be referred to as such; and Traders & General Insurance Company was the insurance carrier; an adverse judgment to it having been entered, that company has perfected an appeal and we shall refer to it as appellant.

. In so far as is necessary to state, from the record appellee received two accidental injuries in the course of his employment; one on March 8th and another on March 29, 1939. He became totally and permanently incapacitated to labor on about August 15, 1939, as a result of both said injuries. His allegations were sufficient to entitle him to have his average wage rate fixed under either of Subsections 1, 2 and 3 of first Section 1, Article 8309, R.C.S.

Appellant’s defense rested upon its general denial. There were special denials under oath of competent notice of the accident and injury, claim for compensation and notice of appeal from the award of the Industrial Accident Board, but in so far as this appeal is concerned all but the general issue have gone out of the case.

The case was tried to a jury on special issues. The verdict was favorable to appel-lee. There were findings that appellee had not been engaged in that labor for substantially a year next ^preceding the date of .the accidents, and that no other person engaged in similar employment at that time and .place or in that vicinity had worked for substantially the whole year next preceding the date of the first accident. Under a special issue based on 3rd subsection of Section 1, of the statute above referred to, the jury found that a just and fair average daily wage rate was $4.25. It was found that ap-pellee was totally and permanently incapacitated to labor and facts were found justifying a lump sum settlement. Judgment was entered for a recovery of the total sum of $5,010.60, the then value of compensation at $14.70 per week for 401 weeks, beginning with August 15, 1939.

Appellant’s first three propositions complain of the submission of Special Issue 27. This question, inquired what would be an average daily wage rate for appellee, fair and just to both parties to the suit. It is argued that it was error because: (a) The wage rate should have been fixed under first Subsection 5 of Section 1, Article 8309, R.C.S.; (b) .$4.25 per day found by the jury was not a just and fair average wage rate as between the parties, and (c) if based upon Subsection 3 as was attempted, the just and fair weekly wage rate and not the average daily wage rate should have been found.

.The first three propositions are properly briefed together. There is some testimony in the record to the effect that ap-pellee was in the employ of his employer at all times during the year preceding the dates of his injuries; but it is indisputably true that the work was intermittent, not continuous ; that he worked by the hour when there was work to be done; that the timekeeper kept appellee’s time along with all other employees and when he had worked enough hours to make a day or even a half day he was paid on a basis of $4.25 per day. The uncontroverted testimony of the timekeeper, introduced by appellant, shows that appellee worked only 252. days during the year. In appellant’s proposition it states: “The undisputed evidence shows that the character of work plaintiff was engaged in at the time of.his injury or injuries, and for the whole of the immediately preceding year was irregular and intermittent, and that neither he nor any other employee of his class could work the whole of any year.” Similar statements are found throughout appellant’s briefs. We may assume from these things that no contention is made that appellee’s wage rate could he fixed under either Subsections 1 or 2 of Section 1, Article 8309; however, special issues were submitted on each of said subsections and the answers, supported by competent evidence, confirm that as a fact. Appellant contends that the wage rate should have been fixed under Subsection 5 of Section 1, Article 8309, which reads: “The average weekly wages of an employé shall be one-fifty-second part of the average annual wages.” In this case appel-lee had no annual, or even monthly or weekly, wage, hut worked by the hour. Clearly Subsection S could not be applied, but resort must be had to Subsection 3 which provides in effect, when the wage rate cannot be fixed under either Subsections 1 or 2, or for other good and sufficient reasons it is impracticable to compute the average weekly wages, it shall be computed by the Board (or court) in any manner which may seem just and fair to both parties. All these conditions appear to have existed and the rate complained of was found under said Subsection 3.

If we properly understand appellant’s contention presented under this group of propositions, it is to the effect that it is unjust and unfair to it to have the rate based upon the average daily wage rate of the injured employee as of the time of the accident, but that the weekly rate should be computed by dividing the total amount received in wages during the preceding year by 52 and award him compensation on a basis of 60% of the result so obtained. We do not so understand the many holdings of the courts. We have been cited to no case of such import. It has many times been held that our Workmen’s Compensation Act is not intended to compensate an injured employee merely for the loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full time basis. Texas Employers Insurance Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399; Maryland Casualty Co. v. Drummond, Tex.Civ.App., 114 S.W. 2d 356, writ refused; Traders & General Ins. Co. v. O’Quinn, Tex.Civ.App., 111 S.W.2d 859, writ refused.

The complaint leveled in the briefs by appellant to special issue 27, upon the ground that it asked for a just and fair average daily wage rate when the law provides that the just and fair weekly wage rate may be fixed by what is just and fair to both parties to the suit, finds no support in the objections presented to the trial court before the submission of his charge, as provided by Article 2185, R.C.S., and it cannot be urged for the first time on appeal. “It is fundamental that the appealing party, who presents error in the giving of an issue, must be relegated to and bound by the objections made by him to such issue. He cannot enlarge his objections either by his assignment of error, or by any supporting proposition.” Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308, 311, writ dismissed,, correct judgment. Even if the point could be considered by us, we think no reversible error is presented, since by Subsection 3 of Section 1, Article 8309, much latitude is given to the Board, Court and jury in arriving at a just and fair average wage rate when it cannot be computed under Subsections 1 or 2. When a just and fair- average daily wage rate has been found, under the liberal rule invoked it is only a matter of calculation to ascertain the weekly rate. See Lumbermen’s Reciprocal Ass’n v. Warner, Tex.Civ.App., 234 S.W. 545, affirmed by Commission of Appeals 245 S.W. 664; Texas Employers’ Insurance Ass’n v. Russell, Tex.Civ.App., 16 S.W.2d 321, writ dismissed; and United States Fidelity & Guaranty Co. v. Morgan, Tex.Civ.App., 18 S.W.2d 810, writ dismissed. We see no worthwhile merit in the contentions raised by these three propositions.

For reasons which will later appear in this discussion, we pass the fourth proposition and take up numbers five, six and seven. These propositions relate to the definition given by the court of the expression “producing cause” used in connection with Special Issue 13, as well also to the issue as propounded. Special Issue 13 was in this language: “Do you find from a preponderance of the evidence that the personal injury, if any inquired about in issues 1 to 5 inclusive, and the personal injury, if any, inquired about in issues 6 to 10 inclusive, were a producing cause, as that term is herein defined, of the total incapacity, if any, inquired about in Issue No. 11?” The issue was answered in the affirmative. In the early part of the court’s charge a definition was given of the term “personal injury”; it was in the form approved by the courts many times. Preparatory to the submission of Special Issue 13, quoted above, the court, among other definitions, also gave this one: “By the term ‘producing cause’ is meant such a cause as naturally results in the incapacity to perform the usual tasks of a workman, and such cause as is at all times continuing and unbroken cause of such incapacity and without which such incapacity would not have occurred.”

Complaint is made of the definition of “producing cause,” given by the court, upon the ground that it is confusing to the jury, in that it embraces certain elements of the term proximate cause, which has no place in a compensation case; that it is and was calculated to and did lead the jury to believe that if a disability to appel-lee resulted from an injury, he should receive compensation even if the injury was not damage or harm to the physical structure of the body and such diseases or infections naturally • resulting therefrom. We think the better practice in such cases as this would be for the court to submit the issues in language which, when answered, will conform as nearly as possible to the language of the statute. It is only such injuries to the physical structure of the body and the diseases and infections resulting therefrom, causing disability, that are compensable. It must be made to appear that the disability resulted from the injury and the disease or infection which naturally followed. This same idea, however, has been conveyed by our courts in such language as, that the injury must be shown to have been the producing cause of the disability. There must be established a causal connection between the injury and the disability before recovery can be had, but if the injury is shown to have been the producing cause and all other necessary requisites are established a recovery will be sustained. Travelers’ Insurance Co. v. Peters, Tex.Com.App., 14 S.W.2d 1007. An element of whether or not an injury is a producing cause of disability, is the continuity of the chain of causation between the alleged injury and the disability for which compensation is sought. Texas Employers’ Insurance Ass’n v. Burnett, Tex.Civ.App., 77 S.W.2d 742. The Burnett case was reversed by the Supreme Court in 129 Tex. 407, 105 S.W.2d 200, for insufficient evidence to support the facts above related, but the principle announced was not criti-cised, and we think it a correct one. Our courts have had occasion many times to discuss cases submitted to the jury upon the theory of a “producing cause” to which divers and sundry objections have been presented. None, so far as we are able to find, have been reversed because they were thus submitted. Some of those in which the question has arisen are Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354, writ dismissed; Safety Casualty Co. v. Walls, Tex.Civ.App., 117 S.W.2d 879, writ dismissed; Texas Employers Insurance Ass’n v. Hitt, Tex.Civ.App., 125 S.W.2d 323; Traders & General Ins. Co. v. Ray, Tex.Civ.App., 128 S.W.2d 80, writ dismissed, correct judgment; Southern Underwriters v. Dumas, Tex.Civ.App., 130 S.W.2d 938, writ refused. In the last cited case the definition given of “producing cause” was substantially the same as that given in the case at bar. In Texas & Pacific Railway Co. v. Short, Tex.Civ.App., 62 S.W.2d 995, writ refused, it was held that the term “producing cause” is not such a term as requires a definition by the trial court. However, if a definition is given, it should be a correct one. Under authority of the Dumas case supra, the definition given in this case was correct, and presents nothing at which appellant can complain.

The submission of Special Issue 13 and its answer are challenged by appellant in this group of assignments because, it is claimed, that the finding of the jury to the effect that the injuries sustained by appellee were the producing cause of his disability was without support in the evidence ’and was based upon surmise and speculation and, further because there was no finding by the jury that appellee’s disability was the direct result of some damage or harm done to the physical structure of the body and such diseases and infections as naturally resulted therefrom, the verdict was insufficient to support the judgment.

We do not think the testimony in this case is of such a nature as to be classed as “speculation, surmise or guess.” Whether or not the disability of appellee was the natural result of some damage or harm to the physical structure of the body and disease and infection resulting therefrom depends upon the expert testimony of physicians, who were witnesses at the trial.

The uncontradicted evidence shows that appellee received two accidental injuries while in the course of his employment, one on March 8, and another on March 29, 1939, On the first occasion he, with others, .was carrying a joint of heavy gas pipe; a man in the center released his hold forcing the weight upon appellee from which circumstance he Sustained a strain to his back, nerves, muscles of the abdomen and to his right testicle. The testicle became swollen and gave him much pain; he remained away from work about two weeks and returned, resuming his labors; on March 29, 1939, he was engaged in carrying a pipe when the employee at the end opposite to appellee-dropped the pipe causing it to fall from ap-pellee’s shoulder, passing down the front part of his body and striking the previously injured testicle. The organ became inflamed, hardened and badly swollen. He consulted a physician and at the end of about seven days it became necessary to remove the testicle. The surgeon who performed the operation testified that it was ascertained that the cord to which the testicle was attached was enlarged to the size of one’s thumb whereas .its normal size was about as large as a lead pencil; a small section of the tissue was quickly removed and a microscopic examination made to ascertain if there was any malignant trouble there; the examination revealed a type of tumor known to medical science as seminotíia, a type of cancer; then the whole testicle and cord were removed; that it is not considered among the medical profession that a traumatic injury to the testicle will necessarily produce seminoma; cancer cells are believed to grow in different parts of the body; some grow awhile and stop, some continue to grow and in that case we have cancer; we usually consider that irritation, trauma and the like can f)e a contributing cause to start those cells to growing when they have been somewhat dormant in the past; the witness said he did not think anyone could say that those cells would not have given any trouble without trauma, "We don’t"know,” he said. Other physicians testified as experts in respect to those things above stated except as to the actual operation and the microscopic examinations of the tissues removed.

Other testimony by physicians and surgeons was more specific relating to injuries which would excite and start active growth of cancer cells in the body. In response to hypothetical questions asked, Dr. Pickens said in substance, that in such cases as the one inquired about there is nearly always the history of an injury that aggravates "and excites the cells to growing; that he believed if cancer cells were present, such a bruise to the testicle as described by counsel under the conditions mentioned would be sufficient to start the cells to growing and produce cancer; he said he didn’t know of anything else than the circumstances related by counsel, that could have caused the cancer cells to become active. Dr. Cook said he had treated appellee since the dates he claimed to have been injured and that appellee was suffering from a malignant trouble in the right testicle; it was known as carcinoma; this, he said, is a tumor springing from tissues of a small tube or cord lying on top of the testicle; a heavy strain or blow on the testicle might produce what is known as carcinoma. Dr. O’Bannon said it was recognized among the medical profession that there are cancer cells in the bodies of some persons which lie dormant perhaps for years and if such person receives a traumatic injury to that part of the body it may cause those cells to become active and develop into a cancerous growth. We think the testimony referred to presents much more than a scintilla of evidence and removes the case from the realm of pure speculation and surmise as contended for by appellant.

We have not attempted to .relate all of the testimony offered by either side on the point, but only sufficient, as we view it, to show that a jury question was raised and that it was proper to submit the question for determination. Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581. Ap-pellee’s testimony disclosed that he was in, sound health and had never had any trouble with his testicle prior to the time of the two-accidents. The jury’s answer -to the issue was favorable to appellee; it had support in. the evidence and is binding upon this court. What we have said in this connection is. sufficient to show that we hold there was support in the verdict for the judgment entered.

By its eighth proposition appellant contends that Special Issue 13, quoted above, is multifarious, in that it inquires if the injuries received on March 8, and on March 29, 1939, were the producing cause-of appellee’s incapacity. In the interest of brevity we are here referring to the-dates of the injuries rather than the special issues 1 to 10 inclusive, as was done in the-Special Issue. The record discloses that this case was tried upon the theory that the two injuries resulted in appellee’s disability. The testimony of some of.the doctors reveals that the strain on the first occasion,, produced the enlarged, inflamed and hardened condition of the fight testicle and that the second injury to the same organ which-, bruised it, contributed to producing the - carcinoma which caused appellee’s disability. In other words, the two injuries and the results arising therefrom constituted the basis and determining factor in appel-. lee’s right of recovery. The two injuries, taken together, constituted the final ultimate issue. It was therefore proper to group the fact issues necessary to make up the ultimate issue. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. In cases like this, where a group of facts are relied upon to make up the ultimate issue, it is not only permissible but often becomes indispensable to group them and present them in a single inquiry, to enable the court to ascertain if the ultimate end sought has been established. Speer’s Special Issues, Sect. 187; 41 Tex. Jur., p. 1107, Sect. 276. For its contention that the issue is multifarious, appellant relies largely upon Traders & General Ins. Co. v. Shelton, Tex.Civ.App., 130 S.W.2d 903. In the Shelton case the inquiry was whether the plaintiff “has or will” suffer disability from the injury sustained. It was held that the obj ection was well taken; but the court' based the holding mainly upon an explanatory charge given in connection with the issue, distinguishing that case from several others there cited, which hold to the contrary. In the absence of the type of definition given in connection with the inquiry in the Shelton case, supra, it has many times been held that an inquiry of whether or not a party “has or will” suffer disability is not open to the objection of duplicity. See Traders & General Ins. Co. v. Patterson, Tex.Civ.App., 123 S.W.2d 766, writ dismissed; Fidelity & Casualty Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780, writ dismissed; Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837, writ dismissed; Maryland Casualty Co. v. Foote, Tex.Civ.App., 139 S.W.2d 602, writ refused; United Employers Casualty Co. v. Knight, Tex.Civ.App., 139 S.W.2d 613, writ dismissed, correct judgment.

We overrule the ninth proposition, which complains of Special Issue 15a. That issue reads: “Do you find from a preponderance of the evidence that the total incapacity sustained by plaintiff, if you have found he sustained such total incapacity, was temporary only?” The objections to the issue were, substantially, that the issue as framed was misleading to the jury and because the word “temporary” was not defined. A previous issue in the charge inquired if appellee’s disability was total, and it is obvious that disability could be total at a given time but that the total disability could be only temporary. It was necessary in this case to have that question determined by a jury finding. The inquiry of the extent of the disability was limited by the word “only” to distinguish it from a previous inquiry as to' whether or not the. disability was total and its duration. The question is not open to the objection that it was confusing to the jury. In compensation cases when disability is shpwn, it is of vital importance to ascertain whether or not the degree of disability is permanent or temporary ; these are words of common meaning and so far as we are able to find there is no case in which a definition of either has been required. It has been held that a failure to define “permanent”, when used in connection with the charge, presented no error. Bankers Lloyds v. Pollard, Tex.Civ.App., 40 S.W.2d 859, writ refused; Traders & General Ins. Co. v. Boyd, Tex.Civ.App., 121 S.W.2d 463, writ dismissed; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ refused. In the last cited case the rule there announced is distinguished from the holding in Employers’ Casualty Co. v. Scheffler, Tex.Civ. App., 20 S.W.2d 833, in which case an improper definition was given when taken in connection with the nature of inquiry made.

Reverting to appellant’s fourth ■proposition, mentioned in the early part of this opinion, we find that complaint is made because a lump sum judgment was entered for $5,010.60, it being the discounted value of 401 weeks compensation at the rate found, commencing with August 15, 1939, the date on which the jury found to be the beginning of appellee’s disability. The calculation was erroneous; upon a finding of total permanent disability, as was done here, the compensable period starts with the date of the injury and not with the date of disability. Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900. Ap-pellee has confessed this error and entered a remittitur of $483.41 as against the total judgment rendered. The total judgment is given credit in the application, by the document filed in this court, covering compensation for 23 weeks intervening between March 8, 1939, and August 15, 1939, properly discounted as provided in cases of .lump sum settlements. The remittitur by appellee in this court removes the necessity of reversing the judgment of the trial court upon the proposition presented, but enables us to reform the judgment and enter one that should have been entered by the trial court. Articles 1861 and 1862, R.C.S.

All propositions and their relating assignments of error are therefore overruled and the remittitur of $483.41 is entered and allowed and judgment is here rendered for appellee against appellant for the sum of $4527.19 with interest thereon at six per cent, per annum from March 29, 1940, the date of the judgment below.

As reformed, the judgment of the trial court is affirmed. The costs of this appeal are taxed against the appellee.


author: SMITH, Chief Justice.

text:
    JOHNSON v. WERBNER.
    No. 10955.
    Court of Civil Appeals of Texas. San Antonio.
    March 26, 1941.
    Hoyo, Sharpe & Williams and E. C. Overall, all of San Antonio, for appellant.
    Bennett & Klein and Moursund, Ball, Moursund & Bergstron, all of San Antonio, for appellee.
   SMITH, Chief Justice.

Appellant has filed a motion in this court for leave to file a supplemental transcript from the court below, embracing appellant’s “objections to statement of facts prepared by the trial court” and “additional statement of facts prepared by the plaintiff,” together with “Bill of Costs” incurred in filing and incorporating said papers into the supplemental transcript. Both those papers are ex parte, being signed by counsel for’ plaintiff alone. Neither of them shows approval by counsel for appellee or by the trial judge, who expressly disapproved both of them.

This court has no power to amend or supplement or change the statement of facts approved, signed and ordered filed,, as a part of the record below, by the trial court. Nor has it the power to consider any other purported statement of facts not approved nor ordered filed by the trial judge, as a part of the record below. Wherefore, the two papers included in the statement of facts now tendered here by appellant are not properly a part of the record and the motion for leave to file supplemental transcript thereof will be denied. 3 Tex.Jur. §§ 542, 546, 551; Alexander v. Fullwood, Tex.Civ.App., 143 S.W.2d 646; Cox v. Thompson, Tex.Civ.App., 82 S.W. 672.

Motion denied, and costs thereof in this and the trial court will be assessed against appellant.


author: SUTTON, Justice.

text:
    MATTHEWS et ux. v. WHITTLE.
    No. 4044.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1941.
    Polk Hornaday, of Harlingen, for appellants.
    Brown & Criss, of Harlingen (Paul Brown, of Harlingen, of counsel), for ap-pellee.
   SUTTON, Justice.

This is an appeal from the 103rd District Court of Cameron County.

The parties will here be designated as in the trial court.

The appellants here, T. M. Matthews and his wife, as plaintiffs below, brought this suit against the appellee, Alice Whittle, defendant below, for the custody of a minor male child, about six years of age, same being the natural child of the plaintiffs and an adopted child of the defendant. The trial was before the court without a jury on defendant’s plea in abatement and in bar, and the judgment was for the defendant and against the plaintiffs. From that judgment the plaintiffs have perfected this appeal.

The plaintiffs allege that the child was born July 14, 1934; that on January 21, 1936, and March 14, 1938, the court awarded the care and custody of the child to J. C. Whittle (whom the facts show to have been the husband of the defendant and now deceased). They also allege that within the past two years conditions have changed in the home of the plaintiffs and that of the defendant, setting out such claimed changes. They do not allege that the defendant is morally unfit, or that she has been guilty of ill treatment, neglect or’ abuse of the child. They allege they have been scornfully denied the right to visit the child, and pray for his custody, or, in the alternative, for the right of visitation.

The defendant answered with a pleading, designated a plea in abatement and in bar, that on January 21, 1936, the child involved in the suit was declared by a judgment of the District Court of Cameron County to be a dependent and neglected child and his care and custody committed to J. C. Whittle; that on March 14, 1938, in the same suit, under the same number, and in the same court, the plaintiffs sought to set aside the former order and judgment; and by the further order and judgment of the court the care and custody of the child was committed to the defendant; that in each of such proceedings the plaintiffs were present, and in the latter proceeding were represented by counsel, and the facts submitted to a jury, and on the jury’s findings judgment was rendered committing the care and custody of the child to defendant; that on May 23, 1938, said court permitted this defendant to adopt said child; defendant prayed that this suit be abated.

The defendant followed her plea in abatement and in bar ■ with an answer on the merits and cross-action, but as the case was tried and disposed of on the plea in abatement and in bar, it is unnecessary here to further refer to the answer.

The defendant assumed the burden in the trial on her plea and introduced all the testimony offered on that trial, which consisted for the most part of the records in the former proceedings; to-wit, the juvenile proceeding in which the care and custody of the child were awarded to the Whittles; the suit brought by the plaintiffs for the custody of the child and the result thereof by which he was again committed to the defendant here; and the adoption of the child by the defendant.

It was admitted, as a part of the record, that there was no notice or citation served on the parents of the child (plaintiffs here), and that they filed no waiver or consent to the adoption of'the child.

The record' discloses that the trial was had on the defendant’s plea in abatement and in bar to avoid a lengthy -and unnecessary trial and record on the main case pleaded by the plaintiffs. The disposition of this appeal depends, therefore, upon the construction of certain provisions of our adoption statutes, which will hereinafter be referred to, and whether or not, under the statutes, consent by the parents was. necessary.

The plaintiffs seek to have the judgment reversed because of the claimed wrongful’ admission in evidence of the judgments in the former proceedings, and especially the adoption judgment, because of its claimed invalidity, in that it was rendered and the-plaintiff permitted to adopt the child Charles without the consent of his parents- or anyone else, and because it violates the-provisions of Article 1, Secs. 15 and 19, of the Constitution of Texas, Vernon’s Ann.. St., and denied them their day in court.

Notice or citation to the natural' parents of a child in a proceeding to adopt the child is not necessary nor provided for by the statutes, because if they still retain-the parental rights in the child it is essential that they consent to the adoption, which is-sufficient notice of the proceeding. Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Pearce v. Harris, Tex.Civ.App., 134 S.W.2d 859.

Article 46a, Sec. 6, Vernon’s Ann. Civ.St., provides: “Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of a child.” The section makes two exceptions: (1) When such a parent has voluntarily abandoned and deserted a child for two years, and left the child to the care, custody, control and management of other persons, and shall not have contributed to the support of such child for two years, the consent shall not be necessary, and the adoption shall be permitted on the consent of the Judge of the Juvenile Court, and if there be no such court, on the consent of the County Judge of the county of the child’s residence; and (2) such consent shall not be necessary when the parental rights have been terminated by order of the Juvenile Court or other court of competent jurisdiction; provided the consent be given by the superintendent of the home or school, or of the individual to whom the care, custody, or guardianship of such child has been transferred by • such court.

The record in this case brings the parents of Charles within the first provision of Sec. 6 of Article 46a, and the District Court of Cameron County so found, and their consent was not, therefore, necessary. The ■conseijt of the judge of the proper court was not had, and the defendant is not entitled to the protection of this provision. It becomes necessary to determine whether the second exception is applicable. We think it is.

The juvenile statutes found in Title 43, •art. 2329 et seq., R.C.S.1925, provide for the disposition of a neglected and dependent ■child. Without quoting such statutes, they provide, in substance, that such a child may be turned over to any suitable person; that such person shall have the right to the custody of the child and shall be responsible for its education and maintenance, subject 'to the orders of the court (Art. 2335) ; that the child shall become a ward and subject to the guardianship of such person (Art. 2336). Art. 2337 provides that when a child is adjudged to be dependent or neglected, the parents shall thereafter have no right over or to the custody, services or earnings of said child, except upon such conditions in the interest of such child as the court may impose. The court in this instance imposed no conditions, hut vested all such rights, care, custody and control in the defendant. We think under the record and the several provisions of the statutes the parental rights had been transferred and these plaintiffs came clearly-within the second exception of Art. 46a, Sec. 6, and that their written consent was unnecessary. ■

We deem it unnecessary to comment on the necessity for the written consent of the defendant. No better consent could be had than her petition to adopt and her appear-anee m that proceeding.

So far as we have been able to find, the exact question here has never arisen and been determined by the courts of Texas, We desire to cite, however, for whatever light they njay throw on the situation, the cases of Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Pearce v. Harris, Tex.Civ.App., 134 S.W.2d 859; and Stone v. Dickerson, Tex.Civ.App., 138 S.W.2d 200.

In other jurisdictions, where the parental rights have been terminated, consent of the parents to adopt the child is not necessary, and we cite here the cases cited in appel-lee’s brief: Appeal of Goshkarian, 110 Conn. 463, 148 A. 379; In re Connolly, 154 Misc. 672, 278 N.Y.S. 32; Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802, 18 L.R.A.,N.S., 926; Egoff v. Madison County Children’s Guardians, 170 Ind. 238, 84 N.E. 151; State v. Wheeler, 43 Wash. 183, 86 P. 394; In re McKeag’s Estate, 141 Cal. 403, 75 P. 1039, 99 Am.St.Rep. 80; Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620, 11 Am.St.Rep. 808; People v. Callan, Sup., 124 N.Y.S. 1074; and Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St.Rep. 17.

There is nothing in this record that indicates the plaintiffs have been denied any rights guaranteed to them under Sec. 15, Art. 1, of the Constitution. The record discloses that on January 21, 1936, in the juvenile proceedings, the plaintiffs were present at that trial. They subsequently filed their petition in that cause and sought to have the custody of the child changed and the former order and judgment of the court set aside; they were given a trial by jury, and judgment, on the findings of the jury, was rendered against them on May 23, 1933. From that judgment they did not appeal. We think we have correctly construed the effect of that judgment as divesting them of their parental rights in the child. If we are correct in that conclusion, then they had and have no rights in the child, the subject matter of this cause. It cannot be said they have been deprived of their natural and legal parental rights without notice and consent, because that had been done in the proceeding initiated by themselves when they sought to have the judgment and order set aside in the juvenile proceeding and the custody of the child changed May 23, 1938.

We are not unmindful of the presumptions rightfully indulged in favor of tjje neural right of parents to the custody ancj controi 0f tlneii* child. It is ordinarily presumed that the best interests of the child w¡n be best subserved in the custody of its natural parents, and their right to its custody and control recognized; but that right ⅛ not absolute — it is made the subject of judicial control by the various provisions 0f our statutes, always looking to the best interest of the minor, which is paramount to all other considerations. When the interest of the child demands a different disposition, the right of the parent must yield to the opportunity of the child to reap the better • advantage. These principles have been repeated many times, and a much better statement of them may be found in such cases as Davis v. Sears, Tex.Com.App., 35 S.W.2d 99, and Legate v. Legate, 87 Tex. 248, 28 S.W. 281. Thes.e seem to have been the primary considerations, that ' influenced the court in the disposition of this child in the course of the several proceedings had.

The plaintiffs have not in their petition, as required by the statute, assailed the moral fitness of the defendant, nor charged her with any abuse, neglect or ill treatment of this child, all of which it is necessary to allege and support with proof before the adoption may be set aside.

We find no error, and the judgment of the trial court is affirmed.