author: CRITZ, Justice.

text:
    PENA et al. v. SLING et al.
    No. 7666.
    Supreme Court of Texas.
    May 29, 1940.

      William R. Quilliam, of Hebhronville, and Lester Whipple and Tabor Stone, both of San Antonio, for appellants.
    Andrew Dilworth, W. H. Shireman, John J. Cox, and Dilworth, Shireman & Huth, all of San Antonio, for appellees.
   CRITZ, Justice.

This cause is before this Court on certified questions from the Court of Civil Appeals at San Antonio. It involves an appeal from an interlocutory order of the District Court of Bexar County sustaining a plea of privilege, or venue. The order appealed from changes the venue of this cause from Bexar County to Duval County.

This suit was filed in the District Court of Bexar County in the form of a statutory action under Article 6082 et seq., R.C.S. 1925, to partition a tract of land in Duval County. The plaintiffs in the district court are Hattie Morgan Pena et ali All of the plaintiffs reside in Duval County, where the land is situated. The defendants in the district court are W. H. Sling, James C. Nelson, F. M. Frasher, R. F. School-field, and Argo Royalty Company, a foreign corporation. Sling resides in McMullen County; Nelson, Frasher, and Schoolfield all reside in Bexar County. It is alleged that the Argo Royalty Company is operating in this state. Tire petition makes no express mention of any. dispute of title as between the plaintiffs and the defendants, or any of them. The petition, omitting formal parts, is as follows:

“First
“For cause of action plaintiffs 'would allege and represent to the court that the plaintiffs and the defendants are the joint owners in fee simple of the following described land and premises situated in the County of Duval and State of Texas, to-wit: (Here follows description of 200 acres of land in Duval County.)
“Second
“That the plaintiffs own a one-half undivided interest in and to all of the above described land; that the defendant, W. H. Sling, owns a one-half undivided interest in and to the above described land, less however, and deducting an undivided 5/224ths interest ' in the mineral estate, which is owned by the defendant James C. Nelson, of San Antonio, Texas, and undivided 30/224ths interest in the mineral estate which is owned by the defendant F. M. Frasher, who resides in San Antonio, Texas, and an undivided 30/224ths interest in the mineral estate which is owned by the defendant R. F. Schoolfield, who resides in San Antonio, Texas, and an undivided 15/224ths interest in the mineral estate which is owned by the defendant Argo Royalty Company, of Denver, Colorado.
“Third
“That the plaintiffs and the defendants are the sole owners of said lands and premises, so far as is known to plaintiffs, and the estimated value thereof is $50,000.-00
“Wherefore, plaintiffs pray the court that the defendants he cited to appear and answer this petition, and that plaintiffs have judgment for the partition and division of said lands and premises; that commissioners be appointed, and that writ of partition issue, and for possession of that portion as by judgment of the court may be ascertained and declared to he the property of plaintiffs; and for costs of suit, and for such other and further relief, decrees and orders, general and special, in law and in equity, as the nature of this cause may demand or merit.”

In due time Sling filed plea of venue to he sued in Duval County, where this land is situated. This plea meets every requirement of Article 2007, R.C.S.1925, prescribing the statutory form of a plea of privilege, or venue. In addition to the requirements of a plea of privilege, or venue, as provided by Article 2007, supra, the plea filed by Sling contains the following allegation: “4. That the nature of the principal relief sought by plaintiffs in their original petition is for the recovery of lands and to quiet the title thereto, which lands are located wholly within the boundaries of Duval County, Texas, wherefore, under and by virtue of Article 1995, subdivision 14, Revised Civil Statutes of Texas of 1925, the exclusive venue for suits of that nature is in Duval County, Texas.”

Nelson, Frasher, and Schoolfield filed a plea designated by them as “Plea in Abatement.” We quote such plea as follows:

“That although the Plaintiff’s petition in this case is in form a pleading for a partition of real estate, in fact the Plaintiff seeks principally the recovery of an undivided interest in lands and to quiet the title to such undivided interest in lands. That such lands are not located in Bexar County, Texas, the county in which this suit is instituted, but said lands are located wholly within the boundaries of Duval County, Texas, and that under Subdivision 14, of Article 1995, suits for the recovery of lands or to quiet the title to lands, must be brought in the county in which the land lies, and these Defendants respectfully show that although they are residents of Bexar County, Texas, the county in which this suit was instituted, the exclusive venue of a suit of the kind.and character filed by Plaintiff is fixed in Duval County, where the land lies.
“Wherefore, premises considered, these Defendants respectfully pray that this cause be abated and that the venue of same be transferred to Duval County, Texas, and for such other and further relief, general and special, in connection therewith to which they may show themselves entitled.”

After the filing by the defendants of the above-described pleas, Pena et al. filed controverting pleas as required by Article 2007. These controverting pleas reiterate the allegations of the original petition and make same a part thereof. The controverting pleas allege that the suit in Bexar County is a statutory action to partition land. Venue is claimed in Bexar County under exception 13 of Article 1995, Revised Civil Statutes of 1925, on the ground that three of the defendants reside in Bexar County. In this regard, the controverting plea expressly alleges: “Plaintiffs further deny that part of defendants’ allegations which read ‘that under Subdivision 14, of Article . 1995, suits for the recovery of lands or to quiet title to lands must be brought in the county in which the land lies’ because this is not a suit to recover lands or to quiet title, but is a suit solely for the partition of the lands owned by these plaintiffs and defendants, and for that reason Subdivision 14, under Article 1995 Vernon’s Revised Civil Statutes of Texas, 1925, does not apply, but Subdivision 13, of Article 1995, Vernon’s Revised Civil Statutes of Texas, 1925, applies.”

In addition to the above and other allegations, one of the controverting pleas contains the allegation that “one of the defendants, W. H. Sling, has filed a plea of privilege to have said cause transferred to Duval County, Texas, and the defendants F. M. Frasher, R. F. Schoolfield and James C. Nelson, who reside in San Antonio, Bexar County, Texas, who are proper and necessary parties defendant to this suit for partition, and each of said defendants assert an adverse claim or interest in and to the property above described * *

No pleadings have been filed in this cause for any defendants, except as bearing on the issue of venue.

The case was finally tried in the District Court of Bexar County on the issue of venue only. The district court entered its interlocutory judgment changing the venue of this cause from Bexar County to Duval County, where this land is situated. Pena et al. appealed to the Court of Civil Appeals at San Antonio, and that court has certified certain questions of law to this Court. The certificate, omitting- formal parts, is as follows:

“Certificate
“To the Honorable Supreme Court of T exas:
“The above cause is now pending in this Court on motion for rehearing. The facts are stated in the accompanying tentative opinion on rehearing, which is in consonance with the original opinion of this Court. Our holding upon one of the material questions is in conflict with a decision, upon the same point, of the Court of Civil Appeals of the Sixth District, in Thompson et al., v. Pure Oil Co., 113 S.W.2d 662, and is alleged by appellees to he in conflict upon another point with a holding of our Supreme Court in Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113. Because of the conflict upon the first point; because the members of this Court are not in agreement upon all the holdings announced in the original or accompanying tentative opinion; and because of the importance of the questions involved, as well, we deem it advisable to certify, as appel-lees have requested. Accordingly, this Court, acting through its Chief Justice, does hereby respectfully submit for your decision the following questions, to-wit:
“First: In this suit brought in Bexar County for partition of land situated in Duval County, did the plaintiffs fully meet the burden resting upon them to sustain venue, by (1) introducing their original petition in evidence showing the nature of their suit to be, strictly and exclusively, a statutory action for partition of real estate, and (2) by showing that three of the defendants were residents of the county in which the suit was pending? Or, on the contrary
“Second: Was it necessary for plaintiffs to go further and affirmatively show by evidence that they owned title to a joint interest in the land to be partitioned ? And,
“Third: Was it necessary for plaintiffs to go still further and show that the defendants’ claim or interest in said land was adverse to that of plaintiffs ?
“In compliance with Rule IS of the Supreme Court this certificate will be accompanied by the transcripts of the record and of the evidence and the briefs of the respective parties, together with certified copy of the tentative opinion of this Court.”

The above certificate is accompanied by the record and the tentative opinion, as required by the rules of this Court.

In order to decide the law questions involved in answering the above certified questions, it becomes necessary for us to construe or interpret certain of our civil' statutes which are involved. We here quote the following Articles of our Revised Civil Statutes, 1925:

“Art. 6082. Any joint owner or claimant of any real estate or of any interest therein or of any mineral, coal, petroleum, or gas lands, whether held in fee or by lease or otherwise, may compel a partition thereof between the other joint owners or claimants thereof in the manner provided in this chapter.”
“Art. 6083. Such joint owner or claimant may file his petition in the district court of the county in which the real estate, or any part thereof, sought to be partitioned, ⅛-situated, which petition shall state:
“1. The names and residence, if known, of each of the other joint owners, or joint-claimants, of such property.
“2. The share or interest which the plaintiff and the other joint owners, or joint claimants, of same own or claim so far as-known to the plaintiff.
“3. The land sought to be partitioned shall be so described as that the same may be distinguished from any other and the-estimated value thereof stated.”
“Art. 6086. Upon the hearing of the-cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be-divided, and all questions of law or equity affecting the title to such land which may-arise.”
“Art. 1995. No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases :
* * * * *
“13. Partition. — Suits for the partition: of land or other property may be brought, in the county where such land or other-property, or a part thereof, may be, or in. the county in which one or more of the defendants reside, or in the county of the residence of any defendant who may assert an adverse claim to or interest in. such. property, or seeks to recover the title to the same. Nothing herein shall he construed to fix venue of a suit t'o recover the title to land. * * *
“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Article 2007, as it existed when this suit was filed, read as follows:

“Art. 2007. A plea of privilege to be sued in the county of one’s residence shall be sufficient if it be in writing and sworn to, and shall' state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that ‘no exception to exclusive venue in the county of one’s residence provided by law exists in said cause’; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue. If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.”

A reading of Article 6082, supra, shows that, so far as applicable here, it provides that joint owners or claimants of any real estate, or of any interest therein, etc., may compel partition in the manner provided by the chapter of which it is a part.

Article 6083 provides for the filing of a petition by any joint owner or claimant in the district court of the county where the land, or any part thereof, is situated. If this Article stood alone as regards the county in which partition suits to partition land should be filed, venue in such suits will lie alone in the county in which the land, or a part thereof, is situated. It is evident, however, that we must construe Article 6083 in that regard in connection with, and as modified by, exception 13 of Article 1995, supra. Also, we must construe exception 13 with exception 14, supra, of the same Article.

A reading of exception 13, supra, shows that it applies not alone to suits to partition land, but suits to partition other property as well. Stated in another way, this exception applies to both real and personal property. Under exception 13, ignoring the last clause thereof, partition suits may be brought in the following counties :

1. In the county where such land or other property, or a part thereof, may be.

2. In the county in which one or more of the defendants reside.

3. In the county of the residence of any defendant who may assert an adverse claim or interest in such property, or seeks to recover the title to the same.

If exception 13 ended with the provisions just above indicated, we would have little difficulty in determining its meaning, but it does not so end. It contains a general and very significant and all-inclusive provision at the end thereof. This provision is that, “Nothing herein shall he construed to fix venue of a suit to recover the title to land.” Under this provision the legislative intent not to alter or change the provisions of exception 14, supra, regarding the venue of land title suits, is plainly indicated.

Under exception 14 it is provided that suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie. It will be noted that this exception uses the mandatory word, “must.” Under this exception it is therefore mandatory that a suit to litigate the title to or to recover land must be brought in the county where the land, or a part thereof, is situated. It is held that an action to recover land has a well-known and definite meaning, and means an action in ejectment, trespass to try title, or suit to recover the land itself. Hearst’s Heirs v. Kuykendall’s Heirs, 16 Tex. 327; Thomson v. Locke, 66 Tex. 383, 1 S.W. 312. It follows that any suit to try title, or to try title and recover possession of land, must be brought in the county in which the land, or a part thereof, is situated.

We now refer again to our partition statutes. An examination of Articles 6086, supra, shows that, by express statutory authority, the district court, in a statutory partition action, may not only determine the share of each of the joint owners or claimants in the real estate or land sought to be partitioned, but such court may go further, and determine all questions of law or equity affecting the title to such land, or any part thereof, which may arise in the trial. Stated in another way, in a statutory partition suit, the district court is expressly given power to determine all questions of law or equity affecting the title to the property involved in the suit. “The fact that plaintiff is not in possession of the land, but that the defendants are in' possession, and deny that plaintiff is a co-tenant, and claim the whole of the land for themselves, does not defeat plaintiff’s right to maintain his suit for partition, brought in the form prescribed by the statute.” Banks v. Blake, Tex.Civ.App., 143 S.W. 1183, 1185; Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136; De La Vega v. League, 64 Tex. 205.

When it is considered that the court, in a partition suit to partition land, may determine “all questions of law or equity affecting the title to such land” that may arise between the parties to the suit, the closing provision of exception 13 of Article 1995, supra, becomes very significant. It is evident that the provision, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” is intended to preserve the venue of land suits as fixed by exception 14, supra, of the same Article, and not allow the venue as fixed by that exception to be defeated by filing a statutory partition suit, when the partition suit itself is a suit to recover land, as well as for partition thereof. Further, it is evident that the provision, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” dominates and qualifies every part of exception 13 which precedes it, and prevents such exception from ever being relied on “to fix venue of a suit to recover the title to land.”

In Shell Petroleum Corp. v. Grays, Com. of App. opinion adopted, 122 Tex. 491, 62 S.W.2d 113, 120, this Court had before it a case in which it was attempted to maintain a suit in McLennan County as a statutory partition action to partition land situated in Gregg County. All of the defendants, except two, lived outside McLennan County. One of these defendants was asserting an identical interest with the plaintiff in the land involved, and the other had no interest at all. All of the other defendants were in possession of the land, and were disputing that the plaintiff and the defendant who was asserting the same title as the plaintiff had any title at all. The record shows that the plaintiff and the Mc-Lennan. County defendant who was asserting the same rights and title as the plaintiff, were attempting in a partition suit not only to partition the land, but to litigate the title to an undivided interest therein. Also, they were seeking an accounting and recovery for large quantities of oil which had been removed from the land in dispute.

In determining that the venue of the above suit was in Gregg County, as defined by exception 14 of Article 1995, supra, this Court said: “Under the above record we think that this is a suit to recover land, and for damages to land within the meaning of subdivision 14 of article 1995, supra, and within the meaning of the last clause of subdivision 13 of article 1995, supra, viz.: Nothing herein shall be construed to fix venue of a suit to recover the title to land.’ We think further that neither the residence of Alice Hays Jefferson, nor the residence of Arma Lee Greer in McLennan county can aid plaintiffs in this suit as to venue in McLennan county. In this connection it is evident that Arma Lee Greer has no interest whatever and is asserting none. As to Alice Hays Jefferson her interests are identical with the plaintiffs, and not adverse, and the express language of present subdivision 13 only operates to fix venue in partition suit where the suit is filed in a county in which a defendant lives who has a claim adverse to the plaintiffs. We have no such defendant in McLennan county in the present suit.”

Plainly, the above-quoted holding is to the effect that, under, the terms of the last provision of exception 13 of Article 1995, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” a partition suit to partition land must be brought in the county where the land is located, if in such suit jurisdiction of the trial court will be invoked by any party to recover land, or to try the title thereto. If this is not the correct construction to be given exception 13, the provision therein, “Nothing herein -shall be construed to. fix venue of a suit to recover the title to land,” becomes utterly meaningless, and the venue of land title, or land recovery, suits, in the county where the land, or á part thereof, is located, as fixed by exception 14, can be defeated in any case where the title to an undivided part of the land only is involved, by simply filing a statutory partition action in a county where a defendant resides who may assert an adverse claim or interest, or who may seek to recover the title.

It seems to be contended by Pena et al. that the above quotation from the opinion in the Shell case, supra, is authority to hold that venue in a statutory partition action to partition land can be obtained under the provisions of exception 13 in the county where the defendant resides, and outside the county where the land, or a part thereof, is situated, even though the suit involves the litigation of the title to the land sought to be partitioned, or an effort to recover the same. This contention is based upon a part of the above-quoted holding in the Shell case, as follows: “* * As to Alice Hays Jefferson her interests are identical with the plaintiffs, and not adverse, and the express language of present subdivision 13 only operates to fix venue in partition suit where the suit is filed in a county in which a defendant lives who has a claim adverse to the plaintiffs. * *” We think that when the holding in the Shell case with reference to venue under exception 13 is considered as a whole, it is plain that this Court intended to there decide that the venue of suits to partition land would lie in the county where the land, or a part thereof, is situated, as provided by exception 14, if such suit involves an effort to try the title to land, or to recover the same. We simply intended the statement last quoted to call attention to the fact that exception 13 could not aid the plaintiff in the Shell case even if the closing provision of such exception, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” should be ignored.

We admit that we have encountered great difficulty in attempting to harmonize the part of exception 13 last above quoted with the part of the same exception which allows venue in partition suits outside the county where the property, or a part thereof, is located, if the suit is filed in a county where a defendant resides who asserts an adverse claim or interest to such property, or who may seek to recover the title thereto. We hold, however, that if there is any conflict, the provision, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” is the dominant provision, and should be given controlling effect. Furthermore, even if it should be admitted that the portion of exception 13 last quoted does not dominate, then if applied to land partition suits exception 13 could not confer venue where the title to land must be litigated, because the statute would be so contradictory as to be meaningless.

It appears to us that all parts of exception 13, supra, can be harmonized and given effect by interpreting the word “property,” as used in that part of such statute which says “or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to retover the title to the same,” as referring to the “other property” referred to in the preceding portion of the exception. In other words, the “property” referred to in the portion of the exception just quoted, refers to “property” other than land. When the exception is thus construed, all parts are harmonized, and the provision, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” conflicts with no other provision.

From what we have said in regard to the correct construction to be given exception 13, supra, it must be held that it cannot confer venue in a land partition suit in a county where the land, or a part thereof, is not located, if the suit involves a question of title or an effort to recover the land. This must be true, whether we hold that the statute is conflicting, or whether we hold that the part of same which provides that “or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover the title to the same,” refers to personal property, or whether we hold that the provision at the end of the exception, “Nothing herein shall be construed to fix venue of a suit to recover the title to land,” dominates and qualifies all that precedes it.

With the statutes above quoted construed as above indicated, we come to directly consider the law questions certified by the Court of Civil Appeals.

As already shown, Pena et al., plaintiffs in the district court, filed a suit in Bexar County to partition land in Duval County. Under the express provisions of Article 6086, supra, such a suit, filed as a statutory partition action, can involve the trial and determination of disputed issues of title. As provided by the statute, the district court, in such a suit, is clothed with power to “determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.” It follows that this very suit, filed as a statutory partition action, may involve the trial of a suit to recover land, or to try the title thereto. If such is the case, under the express provisions of exception 13, that, “Nothing' herein shall be construed to fix venue of a suit to recover the title to land,” and under the express provision of exception 14, supra, venue lies in the county where the land is situated, — Duval.

It is settled that our statutes relating' to pleas of privilege cover all pleas of venue, and are not confined to mere pleas of personal privilege to be sued in the county of one’s residence. Shell Petroleum Corp. v. Grays, supra.

A trial upon a plea of privilege or venue, and answer controverting same, is for the purpose of determining whether or not the defendant who filed the plea of privilege or venue is lawfully sued on the subject matter of the suit in the county where the plaintiff has filed his suit. In this connection, it is held that a trial of plea of privilege or venue is not for the purpose of finally determining the rights of the parties in the subject matter of the main suit. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675.

Under the express provisions of Article 2007, R.C.S.1925, supra, a statutory plea of privilege or venue, duly filed, is “prima facie proof of the defendant’s right to change of venue.” It follows that such a plea is sufficient, in law, to require the plaintiff to assume the burden of pleading and proving that he has a statutory right to maintain his suit in the county where he has filed the same. The burden on the plaintiff to prove his right to such venue is as complete and absolute as is his burden to plead the same. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550. It must follow, in the instant suit, that when Sling filed his plea of privilege or venue to be sued in Duval County, the county where this land is situated, and Pena et al. filed controverting affidavits and pleas in answer thereto, claiming venue in this case in Bexar County by authority of exception 13, supra, the burden rested on them to prove, as well as plead, facts which brought the venue in this case under such exception. As already shown, by the express terms of such exception venue of a partition action cannot be governed by exception 13, if the case involves the trial of a disputed title to land, or, stated in another way, an effort to recover land. Also, as already shown, a statutory partition suit may be a suit to try the title to or recover land. It follows that since the burden was on Pena et al. to bring themselves under exception 13, the burden was on them to prove that a land title suit, or suit to recover land, was not involved. They certainly did not do this by simply introducing in evidence a petition which, on its face, under the statute (Article 6086) might involve such an action.

We answer the first certified question, No.

As we interpret the certificate, it does not call for an answer to the second and third questions unless we should answer the first question, Yes. At any rate, our answer of “No” to the first question renders the other two questions immaterial.


source: Caselaw Access Project

author: BEAUCHAMP, Judge.

license: Public Domain

text:
    MONEYHUN v. STATE.
    No. 21164.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    W. E. Martin, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The proceeding arose in the District Court, 42nd Judicial District, Taylor County. The Attorney General had instituted proceedings and secured an injunction against the relator, restraining him from selling any intoxicating liquors in violation of law. He was later, upon further proceeding, adjudged in contempt of court and the purpose of this proceeding is to release him from that order which was entered on the 12th day of April, 1940, assessing a fine of $100 and three days in jail.

The Supreme Court of Texas has jurisdiction of habeás corpus proceedings growing out of civil actions, Art. 5, Sec. 3, Constitution of Texas, Vernon’s Ann.St. The Court of Criminal Appeals has jurisdiction to issue a writ of habeas corpus to release one illegally restrained of his liberty, Art. 5, Sec. 5, of the Constitution of Texas. This court, however, has held that where the two courts have concurrent jurisdiction and, where the matter out of which the proceedings arise is civil, that this court will decline to pass on the question and that it should properly be presented to the Supreme Court. This seems to be proper under Art. 1737, R.C.S. Ex parte Wolf, 116 Tex.Cr.R. 127, 34 S.W.2d 277, and authorities there cited; 21 Tex.Jur. 422.

The appeal is dismissed.


author: GRAVES, Judge.

text:
    BROWN v. STATE.
    No. 21075.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Art Schlofman, of Dalhart, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of driving an automobile while intoxicated, and by the jury fined $50 and sentenced to confinement in the county jail for forty-five days.

We find no statement of. facts in the record. We do find a motion to quash the indictment because it is alleged that the same is duplicitous ’ in that it charges the commission of two offenses in one count. We do not think the same subject to such objection. It charges in substance that appellant while intoxicated and while under the influence of intoxicating liquor drove and operated an automobile upon a public highway, etc. We gather’that appellant’s objection to this count in the indictment is based upon the use of the conjunctive “and” instead of the disjunctive “or”, the latter of which being contained in Art. 802, P.C., Vernon’s Ann.P.C. art. 802, denouncing this offense.

In Lewellen v. State, 54 Tex.Cr.R. 640, 114 S.W. 1179; Harris v. State, 58 Tex.Cr.R. 523, 126 S.W. 890; Canterberry v. State, Tex.Cr.App., 44 S.W. 522; Hunter v. State, 73 Tex.Cr.R. 459, 166 S.W. 164; Evage v. State, 136 Tex.Cr.R. 318, 125 S.W.2d 295, also Branch’s Penal Code, p. 556, Sec. 967, and many other cases there cited, it has been held: "It is a well-settled rule, in regard to this character of pleading, that where the statute makes two or more distinct acts connected with the same .transaction indictable, and the pleader undertakes to charge more than one of the means found in the statute, these must be pleaded, con-junctively, although they may be stated in the alternative or disjunctively in the statute.” Lewellen v. State, supra.

We think the indictment presents a proper pleading.

We find no error presented in the record, and the judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    MILES v. STATE.
    No. 21063.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Ratliff & Worrell, of Colorado City, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft from the person; the punishment, confinement in the penitentiary for two years.

The appeal bond is not approved. In referring to an appeal bond in a felony case, Art. 818, C.C.P., reads, in part, as follows: “Before such bail bond shall be accepted and the defendant released from custody'by reason thereof, the same must be approved by such sheriff and the court trying said cause, or his successor in office.”

The bond is also defective in failing to require the appellant to appear before the trial court “from day to day and from term to term of the same, and not depart therefrom without leave of this court, in order to abide the judgment of the Court of Criminal Appeals of the State of Texas.” See Article 817, C.C.P.

Appellant being enlarged under an appeal bond which fails to bear the approval of the sheriff and trial judge, this court is without jurisdiction to entertain the appeal.

The appeal is dismissed.

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.


text:
    MARTINEZ v. STATE.
    No. 21087.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Gus Garcia, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is neglecting and refusing to provide for the support and maintenance of minor children; the punishment, confinement in jail for three months.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    BELCHER v. STATE.
    No. 21082.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    John D. Reese, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of fifty dollars and confinement in jail for five days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    CLIMER v. STATE.
    No. 21081.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    W. C. Dowdy, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of fifty dollars and confinement in jail for five days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


text:
    SMITH v. STATE.
    No. 21031.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Mary -West, of Crystal City, for appellant.
    Lloyd W. Davidson, State’s A tty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted in the county court of an aggravated assault upon Quanah Parker Allen, and fined the sum of $150, and from a judgment thereon this appeal is predicated.

The facts are voluminous and show that at a spinach festival and rodeo at Crystal City, with a large crowd present, the complaining witness was present and seemed to be under the influence of intoxicating liquor. He was doubtless creating some kind of disturbance, and at the request of the person in charge of the rodeo there was an attempt made to quiet or remove Mr. Allen from the rodeo grounds. This attempt finally resulted in an encounter between Allen and one Arch Miller, a special ranger, in which it was claimed that Miller struck Allen over the head with a pistol. At about that time in this first difficulty three State patrolmen appeared upon the scene and took Allen in charge, and attempted to remove him from the rodeo grounds. They seemed to experience some difficulty in getting Allen away from the crowd gathered around the scene of the trouble, and one of the patrolmen asked the appellant to assist them. Appellant was the sheriff of Frio County, a neighboring county, and he walked along behind the patrolmen through the crowd. Upon arriving at the patrol car, one patrolman got in front with Mr. Smith, and one patrolman got in the rear seat with Allen. Allen was using vile and obscene language, and, according to the witnesses, was cursing Smith, as well as others. Allen began fighting and striking Smith as well as interfering with the driver of the car, when they told him they were taking him to jail. The driver of the car claims that the conduct of Allen nearly caused the driver to lose control of the patrol car in the heavy traffic, and he turned off the heavily traveled road, endeavoring to find another road to the jail; that he took the wrong road and stopped to turn back, at which point Allen and Smith got out of the car and started fighting. These officers say Smith was fighting with his fists only. Allen says he was getting the best of the fight and Smith began striking him (Allen) with a blackjack and must have struck him forty or fifty times. Eventually they got Allen back in the car, and got him to the jail and into an office. They could not find the key to the jail, and one of the patrolmen went back to the rodeo grounds and got the key to the jail and returned, and they locked Allen up for the night. While waiting for the key to the jail, Allen continued his cursing of Smith, so the witnesses say, and finally he and Smith had another fight, Allen saying that Smith again hit him over the head with a blackjack. In the meantime Allen’s wife and some friends had come to the jail to look after Allen, and the officers refused to let the ladies in, they say, on account of the foul language he was using in his drunken condition. Allen’s wife, however, says that she saw Smith strike Allen with a blackjack while they were in this office.

There were three counts in the indictment in this case; only one, however, was presented to the jury, and being the count on which a conviction herein was had. This count reads as follows: “And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present, that heretofore, to-wit, on or about the 24th day of March, 1939, and anterior to the presentment of this indictment, in said county and State, Warren Smith, did then and there unlawfully, with a slung shot, the same being then and there a deadly weapon, commit an aggravated assault and battery in and upon Quanah P. Allen, in this, that the said Warren Smith did then and there, with said slung shot, whip, strike, and bruise the said Quanah P. Allen, by hitting him with said slung shot, on his body and head, in a manner that constituted said slung shot a deadly weapon, against the peace and dignity of the State.”

It will be noted therefrom that appellant was charged with striking Allen with a slung shot. The carrying on one’s person of a slung shot is denounced by law under Art. 483, P.C., and a slung shot is defined by Webster as “a metal ball of small size with string attached, used by ruffians for striking.” We find, however, in the case of Vargas v. State, 128 Tex.Cr.R. 139, 79 S.W.2d 860, that this court held that a piece of metal inclosed in strips of horsehide or leather,' with one end tapering, enabling such instrument to be strapped to the wrist, sustained a conviction for carrying a “slung short”.

. Mrs. Q. P. Allen described the instrument which she called a “blackjack” as “some kind of a heavy leather handle with an end to it, about that long and it is very hard, filled with some hard substance, about ten or twelve inches long.”

Mr. Allen described a blackjack as “In my opinion, a blackjack is a leather sack with the end of it filled with lead, flexible.”

In 8 Corpus Juris, p. 1113, we find a blackjack defined as “A small leather-covered club or billy weighted at the head and having an elastic shaft,” this being a quotation from Webster’s International Dictionary.

A slung shot is defined in 58 Corpus Juris, p. 773, as “A ball of shot or metal covered with leather, and a band of elastic or leather attached to such ball, and made so that the same can be attached' to the wrist or arm of a person; a metal ball of small size with a string attached used for striking; a small mass of metal or stone fixed on a flexible handle, strap or the like, used for a weapon.”

It will be observed that with the record in the condition that the witnesses both say, that the appellant struck Allen with a blackjack, and the indictment alleging that Allen was struck with a slung shot, the court charged the jury relative to the use of a slung shot only by appellant upon Allen. After the main charge had been prepared the trial court presented an additional charge to the jury in the following language: “A slung shot is a weapon of offense or defense and becomes a deadly weapon when in the manner of its use it is calculated to produce death or serious bodily injury.”

Appellant objected to such charge and presented to the court special charges Nos. 4, 5 and 6, covering a definition of a billy as described in 8 Corpus Juris, p. 1109, and a slung shot as set forth in Geary v. State, 53 Tex.Cr.R. 38, 108 S.W. 379.

The court’s definition of a slung shot is rather broad, and would take in any weapon of any kind that could be used for either offense or defense, and we think he should have yielded to appellant’s requested charge and defined the same in some such language as used by Mr. Webster or the Geary case, supra.

The court throughout his charge refers to a slung shot while the State’s witnesses refer to a blackjack. This contradictory matter should be eliminated or harmonized in some way in the event of a new trial herein.

Again we note that although appellant was charged with making an assault upon Q. P. Allen with a deadly weapon, and although the court’s charge was objected to because nowhere did such charge define what in law constituted a deadly weapon, and appellant also offered the court a charge thereon, the court failed to thus charge the jury.

Again we find the court’s charge on self-defense was objected to as being too restrictive, and appellant submitted to the trial court a charge thereon that seems to us to have been called for by the facts in the case, especially, in the portion thereof that dealt with apparent danger as viewed from appellant’s standpoint. It is noted that apparent danger was not touched upon by the court’s charge.

We think the court should have also defined what was meant in law wherein the charge used the words “serious bodily injury.” It appears that there was some question as to whether or not Allen suffered any serious bodily injury in his fight with Smith. The State’s witness Dr. Urban testified that Allen “has suffered no serious consequences.” This matter was also called to the trial court’s attention by objection and proper requested charge. It also seems that Allen had been hit over the head with a pistol, and with some other person’s fist, and kicked while on the ground in an earlier difficulty with one Arch Miller. We think that the court should instruct the jury relative to this first encounter of Allen with another party than appellant, and require them to not take into consideration any evidences of violence upon Allen not shown to have been inflicted by appellant. This matter was also properly and timely called to the trial court’s attention, and a proper charge submitted thereon, which charge should have been given. The testimony relative to the injuries inflicted by Arch Miller should not have been admitted.

Appellant testified that he had no intent to injure Allen; that “while I was having these two altercations with Mr. Allen, I didn’t intentionally inflict any injury upon him. * * * I didn’t fight him when we got in the jail till he jumped on me. * * * I didn’t intend to hurt Mr. Allen. * * * I did not at any time fight with Quanah Parker Allen, excepting when he first attacked me.”

Mr. Branch says in his Penal Code, p. 914, Sec. 1534: “If the intent to injure is a vital issue in the case, it is error to refuse to give instructions affirmatively submitting the defensive theory,” citing cases. See the late cases of Irlbeck v. State, 118 Tex.Cr.R. 5, 40 S.W.2d 124, 126; Lozano v. State, 83 Texas Cr.R. 174, 202 S.W. 510.

Appellant testified that he was a peace officer, the sheriff of Frio County, Texas; that he was attending this rodeo; that he was near the scene of this first difficulty of Allen and was called by the State patrolmen to help' them get Allen out of the crowd and take him to jail; that being summoned by them to assist them, he responded, and only was using such force as he deemed necessary in order to assist such officers in arresting Allen and carrying him to jail. He attempted to' testify that he knew that such was his duty under the law when thus summoned by a peace officer, which last statement the trial court refused to allow to be made.

Mr. Gilbert, a patrolman, testified:

“Mr. Allen didn’t want to go. Q. P. Allen asked me where we were taking him and I told him we were taking him to jail. He objected to going to jail and tried to get loose, but • couldn’t. Another difficulty we had was quite a few of the people, these visitors, onlookers, at the rodeo, tried to get us to turn Quanah Parker Allen loose on the spot, in other words, turn him over to their custody. They were strangers; I didn’t know who they were, but I later identified ope and found out his name. I would say that Quanah Parker Allen was very drunk, angry drunk. He was very drunk, using very abusive, violent, obscene language to address almost every person that he talked to. * * *
“My duties as a highway patrolman consist of any work toward handling traffic, keeping the peace anywhere within the State. Our commission is a State Officer’s Commission. We have jurisdiction in any county and on any street and on any property or in any place where a crime or a violation of the law is committed in our presence or sight. Our commission is the same insomuch as the authority, as an officer is concerned, as that of a Texas Ranger. Our duties are primarily on the highway, handling traffic. We have the authority to make an arrest when the law is violated and a crime is committed. * * *
“We were in a hurry to get to the patrol car, however, our pace was very erratic, to say the least because of the strenuous objection on the part of Mr. Allen and the part of some citizens who kept interfering, that is, getting in front and approaching us from behind. The crowd surged around us when we first started out, but after we had gone quite Some distance, twenty-five or fifty yards, there were no crowds, only one or two, a few persisted and tried to get Mr. Allen from our custody.”

Mr. Jackson, another patrolman, testified : “I took Mr. Smith along because I felt that it might be he could be of some assistance to us. I did take another Patrolman along — Patrolman Manz was in the back seat. Yes, I left two patrolmen on the ground and I and one of the patrolman and Warren Smith took charge of the prisoner.”

Again Patrolman Manz testified: “Mr. Jackson requested Warren Smith to accompany Quanah P. Allen, Mr. Jackson and I on this ride from the rodeo grounds to the jail in Crystal City. There are various types of drunk men; their degrees of' intoxication vary. I have had quite a bit of experience with drunks. Quana Parker Allen appeared to be of the raving type that day when we took him into our custody. There are those that laugh and those that are quiet. His state o.f intoxication probably stimulated his physical condition, if anything. He was uncontrollable. We couldn’t do anything with him.”

Appellant testified:

“I followed the patrolmen and Mr. Allen to the car. When we got to the car, Mr. Allen was cussing and didn’t want to get in. They finally put him in. Mr. Manz put him in with Mr. Gilbert’s help and Jackson was there, too, and he said, ‘Get in and go with us. We will put him in jail.’ I got in on the front seat, right handside. Mr. Jackson was driving; Lewis Manz was on the left hand part of the back seat and Allen was on the right hand side. Allen was directly behind me. Those were the only occupants of the car when we left the rodeo grounds. * * *
“I accompanied Patrolman Jackson and Manz with Mr. Allen for the reason that Mr. Jackson asked me to assist them. I didn’t refuse • to go with Patrolman Manz and Jackson for the simple reason that I could be prosecuted for it. I went with Patrolman Manz and Jackson because I was asked to go.”

The trial court’s charge was objected to because of its failure to charge on the above phases of appellant’s defense, and the appellant requested in writing the following charge: “Gentlemen of the Jury: You are instructed as the law of the case that Article 348 of the Penal Code of the State of Texas provides: ‘If any person, being called on by a magistrate or peace officer shall fail or refuse to aid such officer in any manner in which, by law, he may be rightfully called on to aid or assist in the execution of a duty incumbent upon such magistrate or peace officer, he shall be fined not exceeding one hundred dollars.’ You are instructed that if the defendant, Warren Smith; on the 24th day of March, 1939 believed that he was being summoned by the arresting officers of Quanah P. Allen to assist them in making such arrest or, transporting the prisoner to jail and believed he Was obligated to render such assistance or be charged with violation of Article 348 of the Penal Code of the State of Texas, he would be authorized to use such force and means as was reasonably necessary to accomplish such result, and you must view the amount of force and means reasonably necessary from the defendant’s viewpoint as the same reasonably appeared to the defendant, Warren Smith, at the time, and in this connection you are instructed that if the defendant, Warren Smith, on 24th day of March, 1939, acted under the belief that he was being summoned by the arresting officers of Quanah P. Allen to assist them in making such arrest or transporting the prisoner to jail and that he believed he was using only such force and means as he believed to be necessary to accomplish such result, the defendant, Warren Smith, is not guilty of the offenses charged in the indictment, to-wit: Aggravated assault and battery; and you are charged to return a verdict of not guilty.”

This charge or one of similar import should have been given. Unquestionably it was appellant’s duty to assist these State patrolmen when called upon to aid them in performing the duty of peace officers, and had he refused to do so he would have fallen under the denunciation of Art. 348, Penal Code. This was his reason for being present in this unpleasant matter, and such a charge should have been given to the jury as explanatory of his presence there.

We also find in the record bills of exception to certain testimony, as well as to the trial court’s failure to allow certain other testimony to be introduced. These bills are in question and answer form, without a proper certificate of the trial judge, and we can not consider the same.

For the errors herein pointed out this judgment is reversed and the cause remanded.


author: KRUEGER, Judge.

text:
    CLARY v. STATE.
    No. 21086.
    Court of Criminal Appeals of Texas.
    May 22, 1940.

      Clem Fain, Jr., and W. J. Tullos, both of Livingston, and S. F. Hill, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of five years.

Appellant killed the deceased on a Sunday morning after they had ridden around for quite a while' in the deceased’s automobile and imbibed rather freely of whisky. The State’s testimony shows a deliberate murder without any excuse or justification. Appellant, who testified for himself, raised the issue of self-defense. He claimed that the deceased made an attack upon him with a pocket knife.

Bill of Exception No. 2 reflects the following occurrence: After all the witnesses had been placed under the rule, the State called Roberta Thompkins, a ten year old girl, who was an eye-witness to the homicide. This child had never been in court. She was highly nervous, excited and crying. Thereupon the State requested the court to relax the rule as to Mrs. Thompkins so that she might sit beside the little girl while she gave testimony in be-half o.f the State. This request was granted to which appellant objected on the ground that the presence of the mother would have the effect of bolstering the testimony of the witness and would also leave the impression upon the jury that the mother was vouching for the testimony of her little daughter, and would in effect be placing two witnesses on the stand at the same time. The State did not use the mother as a witness but the defendant did. It is apparent from the bill that the child was in such a frame of mind that she had to be pacified and the mother was naturally best suited to successfully accomplish this object. Under the facts as disclosed by this bill, we see no error reflected therein. Whatever action the court, under the circumstances, deemed necessary rested within his discretion.

Bills of Exception Nos. 3, 4, 5, 6 and 7 all related to the dents and paint found by the officers on the stick with which the homicide was committed and a comparison of them with the dents upon the frame of the deceased’s automobile showed that they corresponded in size, shape, etc. We see no error reflected in these bills.

Bill of Exception No. 8 is clearly without merit.

Bills of Exception Nos. 9, 10 and 11 are also without merit and are overruled.

Bill of Exception No. 12 reflects the following occurrence: When Mr. Foreman, who assisted in the prosecution, made the closing argument to the jury he said: “Whose been courting these witnesses? Sid Clary’s been staying down there with them.”

Appellant objected to the remarks because there was no testimony that he had been courting the witnesses since the alleged homicide; that it was an attempt to attribute to the defendant illegal motives and the same was prejudicial. This bill is deficient because there is no certificate by the court that there was no evidence before the jury as a basis for the remark. It merely appears in appellant’s grounds of objection. See Stone v. State, 98 Tex.Cr.R. 364, 265 S.W. 900; Pahlka v. State, 100 Tex.Cr.R. 504, 271 S.W. 899; Banks v. State, 131 Tex.Cr.R. 196, 97 S.W.2d 219.

Bill of Exception No. 13 shows that the special prosecutor, Z. L. Foreman, made the following remarks: “Now, when you jurors take this case and retire into that room there to consider your verdict, and when you come back in here and then file into the Clerk’s office to get your little checks for your services here, and then go out into town to buy Christmas presents for your little children, remember that that little woman sitting there, Collis Rodgers’ widow, and those little children of Collis’ sitting here, that they haven’t got any Daddy to bring them Christmas presents this Christmas.”

Appellant objected thereto on the ground that there was no evidence that Collis Rodgers had any children; that the plight of the little children was prejudicial and inflammatory. The court certifies that he sustained the objection by appellant, but that said remarks were of such potency and of such inflammatory character as to impress the minds of the jury indelibly which could not be erased. In our opinion, this is a certificate by the trial court showing error. We have said many times that when a court certifies that error was committed, this court would order a reversal of the case. See Smith v. State, 136 Tex.Cr.R. 53, 123 S.W.2d 655; Dykes v. State, 135 Tex.Cr.R. 492, 121 S.W.2d 603; Rehm v. State, 128 Tex.Cr.R. 59, 78 S.W.2d 983.

Bill of Exception No. 14 shows that the special prosecutor, in his closing argument to the jury, said: ‘‘Mr. Fain makes much of the fact that there were a bunch of people down there besides Roberta Thomp-kins who saw Sid Clary when he hit Collis with that club, and who we -have subpoenaed here as witnesses and did not put them on the stand. They were subpoenaed by the State but they were here and they are sitting here now. Why didn’t he put them on the stand? He didn’t put them on the stand because he knows that we have taken statements from all of them and he is afraid to use them as witnesses.”

Appellant in due time objected thereto on the ground that there was no evidence as a basis for the remarks; that the same were prejudicial in that the jury was led to believe that the State had taken statements'from said witnesses which were damaging to the defendant. The court again certifies that the objection was sustained and the jury instructed not to consider the same, but the harm which was done was of such force that it could not be withdrawn from the minds of the jurors. This argument was not justified by any evidence in the record and under the authority of Stanchel v. State, 89 Tex.Cr.R. 358, 231 S.W. 120, we feel constrained to. reverse the judgment of the trial court and it is so ordered.

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: LESLIE, Chief Justice.

text:
    RANDOLPH JUNIOR COLLEGE v. ISAACKS.
    No. 2001.
    Court of Civil Appeals of Texas. Eastland.
    April 19, 1940.
    Rehearing Denied May 17, 1940.
    Eugene Lankford and F. D. Wright, both of Cisco, for appellant.
    Isaacks & Lattner, of El Paso, for ap-pellee.
   LESLIE, Chief Justice.

This action by the Randolph Junior College, a corporation, against E. Buford Isaacks is essentially one to determine the college’s right to have a judgment recovered by the said Isaacks against plaintiff (in Randolph Junior College v. Isaacks, Tex.Civ.App., 113 S.W.2d 628) offset by note alleged to have been executed by the said Isaacks and owned by the college, whose authorities did not know of its existence when the former suit was in the course of litigation.

The trial was before the court without a jury, and at the conclusion of the testimony judgment was rendered in favor of Isaacks. The plaintiff appeals.

On request by plaintiff, the trial court filed findings of fact and conclusions of law. Among these the court found: “2. Randolph Junior College and Randolph College are, and have been continuously since their respective organizations different corporations. 3. Defendant Randolph Junior College is not now and at no time has it been the owner of the note executed by plaintiff to Randolph College and plead as an offset to the judgment abovei described.” On these and other findings, the trial court concluded that the college was not entitled to offset Isaacks’ judgment with the note, and entered judgment in favor of Isaacks.

In response to the plaintiff’s brief we have carefully considered the record and find the conclusions of fact substantially supported by the testimony. Finding no error, the judgment of the trial court is affirmed.


author: MONTEITH, Chief Justice.

text:
    NEWSOM v. BOOTH.
    No. 10958.
    Court of Civil Appeals of Texas. Galveston.
    May 2, 1940.

      Lewis & Ingram, of Houston, for appellant.
    Bryan, Suhr, Bering & Bell and George Eddy, all of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in an action brought in the County Court at Law of Harris County by appellee, E. H. Booth, doing business as Booth Tire Company, against appellant, C. D. Newsom, doing business as Newsom Truck Line, to recover the sum of $250.84 alleged to be due appellee on an open account for tires purchased.

Appellants answered by general demurrer and general denial. By special answer he pled an express warranty that the tires purchased would render the services for which they were purchased. He alleged that said tires had failed to render such service and were of no value. By further special answer he pled that he had made payments on said account amounting to the sum of $114.54 for which he had been given no credit by appellee.

The trial was before a jury. At the conclusion of the evidence by both parties, on motion by appellee, the court instructed the jury to return a verdict in favor of appellee. Judgment was then rendered in his favor for the sum of $250.84, the amount sued for.

The record shows that tires were purchased by appellant from appellee. Appellant testified that prior to the purchase of the tires in question, he explained to appellee’s agent the services for which they were being purchased, that is for heavy hauling in the oil fields, and that said tires were expressly warranted by appellee to render such service but that they were unfit for that type of work and that appellee had failed and refused to replace them when they blew out and were shown to have been worthless. Appellant further testified that he had made three payments on his account aggregating the sum of $114.54. The record does not show that said account was credited with these payments.

Under this record the only question to be determined in this appeal is whether there is any evidence in the record which, when considered by itself, would, if accepted as true by the jury, raise an issue of fact under which the judgment against appellant in favor of appellee might (either be reduced or- rendered in favor of appellant.

It is now settled law in this state that as against an instructed verdict the testimony of the party against whom such judgment is rendered should be taken as true, and that the losing party should be given the benefit of all fact evidence, circumstantial or otherwise, bearing on his cause of action as well as all reasonable inferences arising from the evidence; Lawson v. Hutcherson et al., Tex.Civ.App., 138 S.W.2d 131; Moller et al. v. Barnett et al., Tex.Civ.App., 129 S.W.2d 456; Coca-Cola Bottling Co. v. Dickson, Tex.Civ.App., 115 S.W.2d 1223; Dendy v. Cockerham et ux, Tex.Civ.App., 82 S.W.2d 756.

It is further held that where there is no dispute or conflict in the testimony of defendant’s witnesses but nevertheless the unconflicting testimony discloses a variety of circumstances from which the jury may reasonably arrive at different conclusions as to the ultimate facts shown by such evidence, then it is the duty of the jury to determine such ultimate facts even though the trial judge should himself be convinced as to what the conclusion should be; Bragg v. Houston Electric Co., Tex.Civ.App., 264 S.W. 245; Needham v. American National Ins. Co., Tex.Civ.App., 97 S.W.2d 1016.

In the instant case issues of fact were raised by appellant, C. D. Newsom, not only as to the facts of the warranty by appellee that the tires purchased by appellant were suitable for work in the oil fields and as to whether they had failed to render such services, but an issue of fact is raised as to whether certain payments were made by appellant to appellee for which appellant should have been given credit.

All of the above issues were based upon sufficient pleadings. No credits were given appellant for any payments in the judgment rendered by the trial court.

Under the principle above laid down, that where there is an instructed verdict only the evidence favorable to appellant’s contention can be considered in determining whether the issues of fact, if any, raised by the testimony shall be submitted to the jury, we think that the trial court erred in withdrawing the case from the jury and in rendering a verdict for the appellee.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.