author: PRICE, Chief Justice.

text:
    WILSON v. WILSON.
    No. 3896.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 11, 1940.
    Louis R. Stein and McBroom & Clayton, all of El Paso, for plaintiff in errorl
    Potash ,& Cameron and John B. Howard, all of El Paso, for defendant in error.
   PRICE, Chief Justice.

This suit was instituted in the District Court of El Paso County, Texas, by A. F. Wilson, as plaintiff, against C. B. Wilson, defendant. Plaintiff alleges a partnership relation existing between plaintiff and defendant from 1912 to the date of the suit; that the parties were doing business under the firm name and style of International Engraving Company. The assets of the partnership were alleged to be $9,000 with no liabilities except current expenses amounting to about $300. Plaintiff sought to establish a one-half interest in certain property, the title to which stood in the name of the defendant, on the ground that partnership money was used to pay for same and to construct the improvements thereon. He further sought to charge defendant with $1,560 on account of defendant’s failure to attend to his duties as a partner, by reason of which it was necessary to expend $1,560 for additional help. Plaintiff further alleged that he had drawn approximately $100 per month from the partnership and the defendant had drawn therefrom $300 to $400 per month; that defendant was accordingly indebted to plaintiff ■ for such excess drawing. Plaintiff sought an accounting of all partnership matters and for judgment against defendant for the amount found due and the judgment be adjudicated a lien on the partnership assets, and that same be sold at public sale for the purpose of satisfying plaintiff’s debt. A dissolution of the partnership was sought.

Defendant answered by general demurrer and general denial and specially pleaded that during the year 1912 the partnership was entered into between plaintiff and defendant and plaintiff and defendant’s mother, Mrs. Minnie Wilson; that she died in the year 1931, and said partnership continued with plaintiff and defendant to this date. Further that from the institution of the business in 1912 to the present time books and accounts had been kept by the partnership company; that the books and accounts kept from 1912 to 1919, inclusive, had been misplaced, lost, burned or otherwise destroyed, and that defendant could not give the exact amounts drawn by plaintiff and defendant during those years; he alleges that during those years their withdrawals were practically equal; that since 1919 to 1937, inclusive, that plaintiff had withdrawn $39,058.97 and defendant had withdrawn $39,606.39; that from 1930 to 1937 he put into the business from proceeds of a loan on his insurance policy $1,022.76, for which he is entitled to credit in any settlement of adjudication; that plaintiff, from about 1936 on devoted a greater portion of his time to other activities, being the owner of a mine in New Mexico; that plaintiff had not devoted exceeding two-thirds of his time to the partnership of plaintiff and defendant; that on account of such neglect of business by the plaintiff it was necessary to hire additional help at a cost of $10 per week during a period of more than ten years and up to about the beginning of the year 1938; that on account of plaintiff’s absence and non-attention to business and the necessity of having to employ additional help it cost the partnership not less than $5,200 for such additional help. Defendant prayed that the plaintiff be charged individually with $2,600 of said sum; further sought $240 as rental from plaintiff for the occupancy of certain space as living quarters, the business property of the partnership.

An auditor was apppointed who in due time filed his report in the case. The. auditor’s report found for the years 1931 to 1937, inclusive, the respective withdrawals of the parties were as follows: A. F. Wilson, $7667.12; C. B. Wilson, $12,910.40; that the respective withdrawals of the partners from 1920 to 1937, inclusive, were t A. F. Wilson, $33,500.01, C. B. Wilson, $39,017.78. Specific findings were made on several of the items included in the report:

1. A check of $102 drawn in favor of the First National Bank was not charged to plaintiff’s drawings.

2. Items dated April 7, 1920, No. 3530, for $90.20, April 8, 1920, No. 3533, $4.00, April 19, 1920, No. 3568, $148.32, were not charged or included in the drawings of. plaintiff.

3. On April 20, 1920, an automobile was. purchased from the Lone Star Motor Company which was charged to a; ledger account as follows: “Cost of car $939.46, insurance $30.10, repairs $22.50, $992.06.” Further, in 1921 the same account was charged with service, gasoline and oil in the amount of $752.10, and in 1922 for $598.65. These respective items were charged as firm expense in the auditor’s report.

4. Involved an item of $1,000 dated in July, 1920, wherein plaintiff received a ■check for $1,000. Same was charged to-plaintiff as a withdrawal.

5. An item of $3,554.61 representing funds paid out for materials and labor on a house erected by defendant. A credit thereon for $2,427.36, the balance being charged to defendant as withdrawals.

6. Plaintiff was allowed credit for $150 on account' of payment of a firm note.

7. An item of $1,022.76 was disallowed as a credit to defendant against his withdrawals. There was a liability for said amount represented by a note payable to the Kansas City Life Insurance Company. There was $578.25 in cash realized on this note, the balance represents interest on the loan and the extension of the premiums. The collateral used was a policy on the life of defendant C. B. Wilson.

In his comments on disputed items in paragraph nine of this portion of the report, the auditor eliminates the $3,602.32 as a withdrawal charged against the plaintiff and $325 as a withdrawal charged against the defendant, on the ground that these two items had nothing to do with the firm business but represented individual transactions between plaintiff and his mother and defendant and his mother.

Plaintiff filed exceptions to the report of the auditor in substance attacking an item of $2,541.81 allowed by the auditor as a firm expense, claiming that same should be an individual charge against the defendant; exception to a charge made in July, 1920, against plaintiff for the sum of $1,000, plaintiff claiming that the firm had been repaid said $1,000 item; further as to the report of the auditor showing that plaintiff, for the year 1928, drew $2,006.16 from the partnership funds and defendant drew $1,897.33 for said period, and alleges that defendant for that year withdrew $4,000 and should have been charged with said sum instead of $1,897.33. The drawings for the year 1929 are assailed by plaintiff, alleging that defendant drew $1,500 more than plaintiff, and asked that he be allowed for the years 1928 and 1929 $4,000 additional as the amount in excess of the amount drawn by plaintiff.

Defendant’s exceptions attack the disposition by the auditor of a $3,600.32 item .and a $325 item, in that the auditor found that same were not part of the firm business, and alleges that same were part of •the firm business and should be considered in the matter of the accounting — plaintiff to be charged with $3,600.32 and defendant with the sum of $325. The action of the .auditor is attacked as to an item appearing in paragraph six of the auditor’s conclusions allowing plaintiff credit for an item of .$150, and that as to such item plaintiff should only have received credit for $25. Defendant further excepted to the action of the auditor in failing to give credit of $1,022.76 on a note payable to the Kansas City Life Insurance Company secured by a policy on defendant’s life.

The trial was before the court. Judgment was rendered finding that plaintiff and defendant were partners, decreeing a dissolution of the firm, and finding that defendant had withdrawn from the firm the sum of $4,620.13 in excess of that which plaintiff had withdrawn; decreeing a sale of the partnership assets, the proceeds of which were to be applied to the liquidation of the debts of the copartnership, the said sum of $4,620.13 being established as a debt of the partnership; and that if any balance remained due on said $4,62Q.13 that one-half the balance be a judgment against the defendant.

Defendant in due time sued out and perfected a writ of error and the case is here for review.

The partners are brothers. Plaintiff in error has been designated in his ■ brief as C. B. and defendant in error as A. F. For convenience we will adopt that designation of the parties.

Neither of the parties demanded that the court make up and file findings of fact and conclusions of law, and for that reason such do not appear in the record.

This appeal in substance involves an attack on the judgment rendered on the ground that the evidence is insufficient to support same. In plaintiff in error’s brief the following assignments of error appear:

“I. The trial court erred in charging C. B. with withdrawals of $3346.36 in addition to the amount found by the auditor for the years 1928 and 1929.
“II. The trial court erred in failing to charge A. F. with the reasonable value of that portion of the premises rented by the partnership which A. F. used as living quarters and for the gas, lights and telephone furnished to such quarters by the partnership.
“III. The trial court erred in failing to charge A. F. with the expenses to the partnership for the hire of services necessitated by reason of A. F.’s neglect of the business.”

In his supplemental brief the following additional assignment is made: “The trial court erred in disregarding the auditor’s report where there was no evidence to support the exceptions thereto. The judgment of the trial' court is unsupported by the evidence.” '

Various and sundry propositions are set forth purportedly germane to the^'e assignments. ’Under the head of authorities and argument plaintiff in error makes a statement under the propositions. Frequently the statement amounts to a mere assertion without reference to the portion of the statement of facts claimed to sustain same.

Plaintiff in error makes assertion as to the findings made by the trial court on- specific matters. -Defendant in error in his brief questions the correctness of these deductions in his opponent’s brief. Suffice it to say, that the only record we have as to the trial court’s holding is the judgment rendered. In the. light of the record only may we .consider this appeal. “It is a fundamental principle of appellate review that all intendments and presumptions not contradicted by or inconsistent with the record are in favor of the rulings of the trial court. In other words, the presumption is in favor of the right action of the trial court. Error is never presumed;' the burden is upon the party complaining of error to show affirmatively by the record that error was committed.” 3 Tex.Jur. p; 1036, § 734.

It is asserted by plaintiff in error that the auditor’s'report , insofar as same was unexcepted, to by the parties is, as to the matters properly comprehended therein, conclusive. In our opinion, as a general proposition, this is correct. Article 2292, R.S., 1925; Herring v. Herring, Tex.Civ.App., 51 S.W. 865; Hutton v. Graham, Tex.Civ.App., 140 S.W. 1185.

However, insofar as items of the report are properly excepted to each party has the right to have the' court adjudicate the validity or invalidity of same.

Plaintiff in error has made a statement of his theory as to the finding of the court in regard to the matters included in the exceptions of the parties. Defendant in error has likewise given us the benefit of several theories as to how the court possibly found as to these various matters. There is some plausibility to each of the respective theories. The fact is, the only -way, if it be possible to deduce such findings, is from the evidence, pleadings and judgment.

The crux of the whole complaint of plaintiff in error is that the amount of $4,620.13 adjudged against him as excessive withdrawals • is too great. The auditor’s-report found that his withdrawals exceeded, those of defendant in error by $5,517.77., The court found the amount to be $4,620.13-

Defendant in error excepted to four items in the auditor’s report aggregating $7,541.81. Plaintiff in error excepted to-three items in the report totalling $4,746.08. In the pleadings each party'sought relief' against the other for partnership delinquencies. One of the items attacked by-defendant in error was a credit of $2,541.81 allowed his opponent for the cost and upkeep of an • automobile. Beyond question this item was an issue under the evidence. We think the same is true as to the $1,000’ item. In our opinion the item of $3,600 excepted to by plaintiff in error was a question of fact; so as to the $150 item;, as to the $1,022.76 item. The amount properly allowable thereon was at least a question of fact. It is impossible to say how the-court found on these various items.

Plaintiff in error fails to show that the-trial court did charge plaintiff in error with withdrawals in the sum of $3346.36 for the-years 1928 and 1929 in excess of- those shown in the auditor’s report. Hence assignment No. 1 must be overruled.

No. 2 complains of the trial court’s-failure to charge defendant in error with rent for a portion of the business house of the partners which was used for a time as-living quarters. This was, in our opinion,, a question under the evidence to be determined by the court. No. 2 is overruled..

Assignment No. 3 complains of the trial court’s failing to charge defendant in-error for expenses to the firm on account of hire for additional services by reason of his neglect of business. This likewise was a question of fact for the court. It is-a question as to whether there had been any neglect and, if so,.the result thereof.

We think what we have heretofore said disposes of the assignment contained in plaintiff in error’s supplemental brief. To copy the assignment again, “The trial court erred in disregarding the auditor’s report where there was no evidence to support the exceptions thereto. , The-judgment of the trial court is unsupported, by the evidence.” This assignment is too general to require consideration. However,, we have considered same and same is-overruled. • .

Finding ho error, the judgment of the trial court is affirmed. ■


source: Caselaw Access Project

author: WALTHALL, Justice. PRICE, Chief Justice.

license: Public Domain

text:
    HENRY v. WALTER BENNETT, Inc.
    No. 3871.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1939.
    Rehearing Denied Dec. 21, 1939.
    Jones & Jones, of Marshall, for plaintiff in error.
    Stinchcomb, Kenley & Sharp, of Long-view, and Joe W. Sheehy and Ramey, Calhoun & Marsh, all of Tyler, for defendant in error.
   WALTHALL, Justice.

This suit was brought by plaintiff in error, Earl Henry, against Walter Bennett, Inc., in which he seeks to recover damages for personal injuries alleged to have been sustained by him in an automobile accident.

Plaintiff in error being plaintiff in the suit and defendant in error being defendant in the suit, we will refer to them, respectively, as plaintiff and defendant.

The case was tried on plaintiff’s third amended original petition and defendant’s third amended answer. The case was tried to a jury and submitted upon special issues. The jury made answers to the questions submitted, and -judgment was rendered on the verdict as rendered and received by the trial court.

The record is extensive, the evidence covering more than 450 pages. This is the second trial of the case.

Plaintiff pleaded, and the evidence shows and it was so found by the jury, that at the time involved here defendant was engaged in handling and selling Ford automobiles which were shipped to defendant from the factory of the Ford Motor Company, whether the cars were new or had been used and repossessed by such company, such repossessed cars commonly called “used cars”; that at the time' stated plaintiff purchased from defendant a certain 1936 Model Ford V-8 automobile; in the sale defendant was acting by and through its agent and employee Earl Bullock; that in the sale to plaintiff Earl Bullock represented to plaintiff that the car was comparatively a new car; that it was- in excellent mechanical shape and that defendant warranted and guaranteed the car against all manner of mechanical defects, and that plaintiff relied on such representations. In the alternative, plaintiff pleaded that defendant sold and gave to him what is commonly known in the Ford automobile trade as a “new car guarantee,” a car consisting of a warranty of mechanical perfection for a period of 90 days, or until the car had been driven a distance of 4,000 miles, all of which was fully explained to plaintiff by the agent and employee Bullock.

Plaintiff alleged that five days after the purchase of said car and at a time when he had driven said car only a short distance, he was riding in said car on the highway between Lanier and Linden, Texas, and while driving said car “at a reasonable rate of speed,” the front fender of the. car suddenly dropped down upon the right front wheel of the car rendering it impossible for him to steer the car-and causing the car to veer into a ditch, wrecking the car and causing the injuries complained of.

Plaintiff states the defective condition of the car which he alleges caused the slumping down of the car, among the defects a previously broken or partially broken spring upon the main or lower leaf near the right front wheel, and that such defective spring and other defects mentioned proximately contributed to cause the injuries complained of.

Plaintiff alleges that the break in the spring and the other defects described were present at all times before, at the time and after the purchase of the car, and were present at the time the representation and warranties above stated were made.

In the alternative, plaintiff alleged that the wrecking of the car and the resulting injuries to him were proximately caused by the following acts and omissions of defendant and its employees, which constitute negligence, and each of which proximately caused plaintiff’s said injuries: (a) Failure to inspect the said car for any defects; (b) permitting plaintiff to purchase said car, knowing that he would rely upon the said representations, and by ordinary care might have known of the said defective condition of the car; (c) in turning over to plaintiff the car with the defective spring and other defects, when such defects could have been foreseen by ordinary care.

Plaintiff states specifically the injuries he sustained and the reasonable and necessary hospital, medical and doctors’ bills which he necessarily incurred by reason of his injuries, for which he sues.

The Home Insurance Company intervened, stating that it issued its policy of collision insurance to plaintiff with a mortgage clause in favor of the Universal Credit Company with a stated deductible clause and covering the car in question, and alleged that as a result of the wreck of said car intervener sustained a damage and loss of $445, and that by a subrogation agreement with plaintiff} Henry, it asks judgment against defendant for its said loss, with interest.

Defendant answered by general demurrers to plaintiff’s petition and to the intervention, and by special exceptions, by general denial and special denials, and by special matters of defense.

Defendant further answered that at the time of the accident plaintiff was negligent in operating the car in excess of forty-five miles per hour; was negligent in operating the car at a high and dangerous rate of speed under the circumstances then existing.

On special issues submitted the jury found:

1. Earl Bullock represented to plaintiff in negotiating the sale of the car that “it was in the same mechanical condition as a new car of the make and model.”

2. Earl Bullock did not give to plaintiff in negotiating the sale of the car a new car guarantee.

3. Plaintiff relied on said representations of Bullock in purchasing the car.

4. Bullock, in making said representations, was not acting within the scope of his authority as an agent or employee of defendant.

5. In making said representations Bullock was acting within the apparent scope of his authority as agent or employee of defendant.

6. At the time the car in question was sold to plaintiff “the spring .was partially broken at the point where it later broke in two parts.”

7. At the time the car was sold to plaintiff, the defendant, through its agents or employees, did not know of said partially broken spring.

8. Defendant, through its agents or employees, could not have discovered said partially broken spring on a reasonable inspection of the same.

9. Defendant, through its agents or employees, did not fail to inspect the spring which broke on the car in question before they sold and delivered it to plaintiff.

(No answer to questions 10 and 11, inquiring whether a failure to inspect, if any, as in No. 9, was negligence and a proximate cause of the injuries to plaintiff.)

12. The complete breaking of the spring on the car in question was a proximate cause of plaintiff’s injuries.

13 and 14. The action of defendant in selling and delivering to plaintiff the car in question with said broken spring was not negligence nor a proximate cause of the injuries to plaintiff.

15 and 16. Immediately prior to the wreck (of the car) plaintiff was driving the car at a rate of speed in excess of 45 miles per hour, which rate of speed was a proximate cause of the wreck.

17, 18 and 19. Immediately prior to the time of the wreck plaintiff was operating his car at a high and dangerous rate of speed under the circumstances then existing, which operation was negligence and a proximate cause of the wreck.

20. Immediately prior to the wreck of the car the right tube of the car did not blow out.

(21. Inquiring whether the blowing out of the tube, if any, was the solé proximate cause of the injuries to plaintiff, was not answered.)

22, 23 and 24. In purchasing the car in question plaintiff did not rely solely on his own inspection as to the mechanical condition of the car, nor on the inspection made by Claud Sizmore, nor. on the inspection jointly made by the two.

25, 26 and 27. At the time of the purchase of the car in question plaintiff did not know of the partially broken spring, if any, nor could he have discovered said partially broken spring, if any, on a reasonable inspection, nor did plaintiff fail to inspect the front spring.

(28 and 29. Inquiring whether failure to inspect, if any, was negligence, and a proximate cause, not answered.)

29-A. (No answer)

30. It was not an unavoidable accident.

31 and 32. The jury assessed plaintiff’s damages for his injuries at $5,000, and $300 for his doctor, medicine and hospital bills.

The court overruled plaintiff’s motion for judgment on the findings of the jury and for judgment non obstante veredicto, and to intervener, and rendered judgment for defendant.

The court overruled plaintiff’s motion for a new trial, and plaintiff presents this appeal by writ of error.

Defendant in error in this appeal very earnestly objects to any consideration by this Court of any of the seven assignments of error found in plaintiff in error’s brief in this case or any of the propositions thereunder, for the reasons asserted, that each of the assignments fails to comply with the statute and rules for briefing cases, in that each of the assignments fails to distinctly point out some specific error or ruling of the trial court; that each assignment is too general, vague, indefinite and uncertain; that each assignment is multifarious and duplicitous; and because there is no showing in the record that plaintiff properly presented said objections and exceptions to said issues to the trial court, as provided by Article 2185, R.C.S.; that for the reasons stated the assignments do not comply with or conform to the statute, and particularly to Rules 24, 25 and 26.

Article 2185 of the Revised Civil Statutes provides: “The charge shall be in writing, signed-by the judge, filed with the clerk, and shall be a part of the record of the cause. It shall be prepared after the evidence has been concluded and shall be submitted to the respective parties-or their attorneys for inspection, and a reasonable time given them in which to examine and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived. Failure of the Court to give reasonable time to the parties- * * * shall be reviewable upon appeal upon proper exception. The judge shall so frame his charge as .to distinctly separate questions of law from questions of fact, and not therein comment on the weight of the evidence, and so as to instruct the jury as to the law arising on the facts, and shall only submit controverted questions of fact.”

Assignment No. One complains that the trial court erred in overruling and not sustaining plaintiff’s motion for judgment notwithstanding the verdict in answer to issues IS, 16, 17, 18 and 19, in that the answers are not supported by the pleadings nor by the evidence; and for the further reason that the answers to said issues are contrary to the undisputed evidence; or, in the alternative, that the answers to said issues are contrary to the overwhelming weight and preponderance of the evidence; and for the further reason that said issues and the answers thereto are immaterial, due to the findings on issues of warranty.

It is specifically provided by Article 2185, R.S., that all objections and exceptions to the court’s charge shall be presented to the trial court before the charge is submitted to the jury, and when not so submitted are waived. Tarry Warehouse & Storage Co. v. Duvall, Tex.Sup., 115 S.W.2d 401; Texas Coca Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 112 S.W.2d 203; Hartford Fire Ins. Co. v. Clements, Tex.Civ.App., 34 S.W.2d 355. Assignment No. One is too general, in that it does not state in what respect the issues are not supported by the evidence, nor how the answers to the issues are contrary to the undisputed evidence, nor how the answers are contrary to the overwhelming weight or preponderance of the evidence, nor in what manner the answers to the issues are immaterial. Assignment No. One is multifarious and duplicitous. McMath v. Staten, Tex.Civ.App., 60 S.W.2d 290; McMullen v. Parker, Tex.Civ.App., 45 S.W.2d 1011; Foster v. Gossett, Tex.Civ.App., 17 S.W.2d 469.

Assignment No. Two complains that the trial court erred in overruling and not sustaining plaintiff’s motion for judgment upon the verdict for the reason that the answers to the special issues submitted constituted and were a verdict for the plaintiff and entitled him to a judgment. The legal effect of the assignment is simply to state that the court erred in not rendering judgment upon the verdict in plaintiff’s favor.

An assignment of error is liberally construed, but an appellate court is without jurisdiction to consider errors not within the scope of the assignment. Byrnes v. Morris, 53 Tex. 213; Fisk v. Wilson, 15 Tex. 430, 435. The cases of Choate v. San Antonio & A. P. R. Co., 91 Tex. 406, 44 S.W. 69, and Hanson v. Haymann, Tex.Civ.App., 280 S.W. 869, are cited in 3 Tex.Jur. p. 801 under par. 568, for the statement that, “an assignment of error in refusing to instruct a verdict for defendant does not present the question whether the verdict is supported by sufficient evidence or is against the weight and preponderance of the evidence.” The assignment does not point out the findings of the jury to the ■special issues submitted that would entitle plaintiff to judgment. It is too general and indefinite to justify its consideration.

Assignments 3, 4, 5, 6 and 7 present objections to charges submitted to the jury. It is not made to appear that objections and exceptions to the charges were presented to the trial court before the charges were submitted to the jury, and under Article 2185 objections not so presented are waived.

The errors relied upon are not separately and distinctly specified, but each assignment, other than No. 2, embraces more than one specification of error, and is therefore duplicitous or multifarious, and for that reason they cannot be considered.

Acts 1913, 33rd Legislature, p. 276, Chap. 136, provides that, “Where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error and need not be repeated by filing separate assignments of error.” We recognize the confusion that has got into the opinions of the Courts of Civil Appeals by reason of the necessity of filing a motion for a new trial and assignments of .error therein, but as suggested by 3 Tex.Jur. p. 246, par. 163, no better rule can be found than that suggested by the Commission of Appeals in Phillips Petroleum v. Booles, Tex.Com.App., 276 S.W. 667, that is, to file in all cases a motion for new trial presenting those points which have arisen to the time, and thereafter to file in the trial court supplemental assignments of error, presenting only those errors not covered by the motion, and as indicated by Rule 71a. Appellant in the instant case filed a motion for new trial, but does not submit the grounds of error indicated therein as his assignments of error in his brief. The grounds of error in the motion for new trial are similar in subject matter .to the assignments of error in the brief. The first three grounds of error in the motion for new trial, stated in three separate paragraphs, are that the verdict of the jury is contrary to the law, the verdict is contrary to the evidence, the verdict is contrary to the overwhelming weight and preponderance of the evidence. Other grounds are multifarious, as in the assignments of error discussed. Other grounds in the motion are to issues submitted in the court’s main charge, are found only in the motion and are not referred to or presented as assignments of error in the motion or elsewhere.

We have concluded that, there being no assignment of error we can consider, the propositions thereunder may not be considered. Columbian Nat. Fire Ins. Co. v. Dixie Co-op. Mail Order House, Tex.Com.App., 276 S.W. 219, same case on rehearing, Tex.Com.App., 277 S.W. 380; Commercial Credit Co. v. Williams, Tex.Civ.App., 87 S.W.2d 499.

We have found no fundamental error.

The case is affirmed.

On Motion for Rehearing.

PRICE, Chief Justice.

While I concur in the disposition of this case, on consideration of the motion for rehearing, I cannot agree with the grounds stated in the original opinion. In my opinion the assignments of plaintiff in error raising the question that on the verdict judgment should have been rendered in his favor should be considered. This, it ■seems to me, presents grounds of fundamental error.

It is further my belief that the assignments questioning the action of the court on plaintiff in error’s motion for judgment non obstante veredicto should likewise be considered.

However, if it be assumed that the representation of defendant’s agent, as found by the jury, constituted a true warranty, and the latent defect in the spring a breach thereof, in my opinion the judgment was still properly for the defendant. Even though this be an express warranty, it did not constitute defendant in error an insurer -of the safety of plaintiff. Bruce v. Fiss, Doerr & Carroll Horse Co., 47 App.Div. 273, 62 N.Y.S. 96; Razey v. J. B. Colt Co., 106 App.Div. 103, 94 N.Y.S. 59.

The measure of damages in a breach of warranty is such as directly flows from a breach thereof and such as may be fairly said to be in the contemplation of the parties at the time of making the warranty. 37 Tex.Jur. par. 310, p. .676.

Under the finding of the jury this warranty or representation was made without negligence after the exercise of due care. Furthermore, the evidence of negligence in the management and driving of the car was for the jury. In passing upon the credibility of testimony the sole question is not the motive or interest that may actuate the witness. The jury may consider the ability and opportunity of the witness in question to receive correct impressions and to impart them truly. This accident occurred at night. It unquestionably occurred suddenly and unexpectedly. At the instant of the occurrence the parties participating therein necessarily received a great shock and jar. Their impressions as to how the accident occurred may be entirely at variance with the fact. It would seem to the writer that it might be almost impossible for the occupants to tell with exactitude just exactly what happened. The jury found the breaking of the spring was the proximate cause of the injury to plaintiff in error. It might be observed there is no finding as to what was the cause of the breaking of the spring at the point in question. Now force broke the spring. It broke where there was a previous crack. But the force applied may have been sufficient to have broken a spring in perfect condition.

My further conviction is that the want of care in the management of the car precludes a recovery by plaintiff in error. It seems to me that Jones v. George, 61 Tex. 345, 363, 48 Am.Rep. 280, governs here. It is unnecessary to recite the facts involved in that well-known landmark of the law. This quotation will suffice:

“Might he, by ordinary care, have ascertained whether it was or not, and if found not to be, have procured the genuine ‘Paris green’ in time to have preserved his crop in whole or part, as he subsequently did, and preserved a part of his crop last attacked by the worm?
“These were questions of which, in such a case as this, inquiry should have been made by the jury, and if in reference to such matters it was found that the appellant had not used that ordinary care which a prudent man would have used under the circumstances, then he ought not to recover for such loss of his crop as might have been avoided by ordinary care.”

See also C.J. pages 888, 889, § 866.

Plaintiff in error’s injury, under the finding of the jury, would not have occurred but for his want of ordinary care.

I concur in the overruling of the motion.


author: WALKER, Chief Justice.

text:
    In re WILLIAMS’ ESTATE. SMITH v. MABRY.
    No. 3593.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 4, 1940.
    Orgain, Carroll & Bell and John G. Tucker, all of Beaumont, and E. B. Pickett, Jr., and Bradford Pickett, both of Liberty, for appellant.
    LeRoy McCall, of Beaumont, for appel-lee.
   WALKER, Chief Justice.

This action was instituted by Walter Mabry, beneficiary, to probate a certain instrument in writing as the last will and testament of Pearl Robichaux Williams, deceased, executed by her by her mark on the 11th day of February, 1936, and witnessed by Henry Cooper and Lorena Thompson. The instrument was testamentary in its character, and was executed under the due formalities of law. By the terms of the instrument, the deceased devised to appellee, Walter Mabry, who was her uncle, a certain tract of land in Liberty county containing 26.7 acres of land. The probate of the will was contested by appellant, Calvin Smith, the father of the testatrix. On trial in the district court of Jefferson county, on appeal from the county court, the issues made by the pleadings were submitted to the jury by the following questions:

(1) “Do you find from a preponderance of the evidence that the purported will introduced in evidence, same being a paper dated February 11, 1936, was signed by Pearl Robichaux Williams in the presence of Henry Cooper and Lorena Thompson ?”
(2) “Do you find from a preponderance ■of the evidence that Pearl Robichaux Williams signed such instrument with the intention that the same should be her last will and testament?”

On the jury’s affirmative answers to both issues, the instrument in writing was admitted to probate as the last will and testament of Pearl Robichaux Williams, deceased.

The evidence raised the issue that Pearl Robichaux Williams did not execute the instrument in issue “with the intention that the same should be her last will and testament.” Lorena Thompson, one of the subscribing witnesses, testified that on the day the instrument in issue was executed she went to the home of the deceased on the invitation of appellee, that he asked her to go — that he wanted her “to go and sign a mortgage”; that the deceased was awfully sick that day; that she signed the instrument in issue. She gave the following additional testimony:

“Q. Who asked you to sign that? A. This fellow told me to put it there. * *
“Q. What fellow? A. This fellow, White.
“Q. Did he tell you what kind of paper you were signing or wanted you to sign? A. A mortgage. * * *
“Q. Did you see Henry Cooper sign that paper? A. I didn’t see him sign his name, but I signed mine.
“Q. You signed yours? A. Yes, sir.
“Q. At any time while you were there did Henry Cooper or the lawyer, White, pass a paper over to Pearl Williams and have her sign it while they held her hand? A. No, sir.
“Q. How is that ? A. No, sir; I didn’t* see it.
“Q. At any time while you were there did Walter Mabry or the lawyer, White, name any other kind of paper except a mortgage? A. No, sir; a mortgage.
“Q. When you got over there was Henry Cooper already in the room? A. Yes, sir.
“Q. Did you know Henry Cooper before that time? A. Yes, sir.
“Q. While you were there at any time did anybody read a paper over to Pearl Williams and tell it was a will? A. No, sir. I haven’t heard nor I haven’t saw it. * * *
“Q. You said that Mabry told you he wanted you to sign what? A mortgage? A. Yes, sir: that is what it was, a mortgage.
“Q. Is that what it was ? Do you know a mortgage when you see one? A. A mortgage. I know what it means; yes, ■sir.
“Q. How did you know that was a mortgage? A. Because they called me to sign to a mortgage.
“Q. Who told you it was a mortgage? A. I understood it was a mortgage, because when they called me that is what they called me to sign to, a mortgage.
“Q. Isn’t it true he told you he wanted you to come over and witness a will? A. No, sir.”

Emma Wilfrey, the grandmother of the deceased and the mother of appellant and appellee, moved into the home of the deceased and lived with her about eight months prior to her death, and was present in the room when the instrument in issue was executed. She testified that she was there when “White, a colored lawyer, came to the house where Pearl lived,” and that appellee came with White, that she asked appellee “what is all this?” and he replied, “It ain’t nothing but just a little mortgage.” “I asked him what was all of this, because I seen this other man was there, and he said, ‘it ain’t nothing more than a little mortgage that I am making to get Dr. Miller his money.’ ”; Dr. Miller was Pearl’s physician.

“A. I didn’t hear no will. She said it was a mortgage. That is what she told me, it was a mortgage, and he told me the #same thing, because they are all my children and I love them all, but he told me it was just a mortgage until he could get money.
“Q. Who told you that? A. My son, Walter Mabry, my son told me that.
“Mr. McCall: We object to that.
“The Court: Objection sustained.
“Q. Was it there in the presence of Pearl at the time? A. Yes, sir.
“Q. Did she hear what he said? A. Yes, because she asked me about it and said, What is a mortgage?’ I said, ‘Just to collect the money.’
“The Court: Wait a minute. Judge Pickett asked you about what was said when Walter and your daughter were both there.
“A. That is what I am trying to say. I tried to go on, but when you hush me up, I can’t talk.
“The Court: Just tell what was said there ?
“A. That is what he said, it wasn’t no will at all. He told me that.
“Q. When he said that, where was Pearl ? A. She was laying in her bed.
“Q. Could she hear what he was saying? A. Yes, sir, she could hear him.
“Mr. McCall: We object to this, transaction happening several days before the will was executed.
“A. Wasn’t no will.
“The Court: Objection overruled.
“Mr. McCall: Note our exception.
“Q. When you went to the trunk, did you find a deed? A. I looked in this end of it and she said to me, ‘Look in the other end in a little pink rag.’ Well, I looked in there and I got the rag and when I took the rag, he was standing over me, and he taken it and I don’t know what he done with it, but he took it and the next day she handed it to me and told me it was in the bed there, he had brought it back. Now I did not pay so much attention to that, but she told me to take it and give it to her papa.”

On cross-examination, Emma Wilfrey testified: “Three day before they come there, she (Pearl) said she didn’t know if they were trying to fool her or not. That is what she said, but she said ‘He is scared I won’t pay him,’ but she said, ‘If I live to get up I am going to work, I work for rich white people, and I know they will' lend me the money to pay him, and if they don’t, my daddy will pay him if they give him time.”

Appellant rests his appeal upon the errors assigned against the ruling of the court excluding certain testimony.

(1) The following letter, on the testimony of Alphonse Curtis, written by him at the request and under the direction of Pearl Williams:

“Beaumont, Tex.
“Feb. 17, 1936.
“Dear Father:
“Only a few lines to let you hear from me. I reed, your letter and glad to hear from you. Tell Mrs. Sousie I thank her very much for the dollar she sent me. But I taken sick very shortly after I got it,, that it why I am late in ans. your letter, I was so sick and it is so hard to get anyone to write for you.
“I have been real sick in bed it was two-weeks ago last Sunday gone. I varmeted up almost a half gallon of blood the Sunday night I taken sick. Uncle Walter got the Dr. for that Monday.
“The Dr. Put me in, bed and told me to-stay in bed and be quiet as I can possible be.
“I am taking shots they cost Uncle Walter $5.00 a piece. Uncle Walter is the only one that is bareing my expense — and for secoity of his money, It is not a will but in case of my death I willed him the-place.
“But if I get up I can pay him his money back or he can pay the difference and I can redeem the place back. If I die-all you have to do is pay Uncle Walter the money I owe him and take the place back. It was the only thing I could do because I needed help and I had to give him some-kind of secoity.
“Don’t get frighten over what I am telling you. I know every one must die and I must die also. I want you to have that place at my death if you can pay Uncle-Waiter back you take the place.
“Dont put your self to any trouble to come to see me because Uncle Walter is doing all he can for me, even though it is. straining him mighty hard. But you could not do any more for me if you were here.
. “Not my folks—But strangers have really treated me loyal since I have been down.
“Love to all, your wife & Mrs. Lee.
“Answer soon
“Your Daughter,
“Pearley Williams
“120 Finnis St
“Beaumont, tex.”

(2) Certain testimony relating to the ■delivery of this letter to Calvin Smith, and its custody subsequent to its delivery.

(3) Testimony of Emma Wilfrey, named above, quoting from the bill of exceptions : “That after Pearl Robichaux Williams died, certain money due as insurance from a lodge was paid to the said witness, Emma Wilfrey, the grandmother of deceased, and out of that money $5.00 was given to Walter Mabry by Emma Wil-frey as„a repayment to him of that amount due him on account of the money he had loaned deceased to enable her to obtain medical attention.”

Opinion.

The instrument in issue, to operate as a will, must have been executed by Pearl Robichaux Williams with the intention that it operate as her last will and testament. On that point we quote from 68 C. J. 604: “Animus testandi is essential to a will, that being, indeed, its distinguishing feature, and the thing that makes an instrument a will. So, in order that a document may be operative as a will, it must have been intended when it was executed to operate as a will, or have been later adopted as such, except as instructions or memoranda for the preparation of a will may be given testamentary effect where an act of God prevents the ■completion of the instrument in regular form. The animus testandi does not depend, however, upon the maker’s knowledge or realization that he is making a will, or upon his designation of the instrument as a will, or upon the time, place, and circumstances of its execution, but upon his intention to create a .revocable disposition of his property to take effect at his •death.”

The general principles thus announced by Corpus Juris have full recognition in the jurisprudence of this state. Shiels v. Shiels, Tex.Civ.App., 109 S.W.2d 1112; Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001.

Appellee rested under the burden of proving that the instrument in issue was executed by Pearl Robichaux Williams with the intention that it should be her last will and testament. On this point, we quote the following proposition from 68 C.J. 984: “In accordance with the general rule as to the burden of proof in proceedings for the probate of a will, the' burden is upon the proponent to prove that the instrument offered for probate was executed with intention that it would be the maker’s last will and testament. It is ordinarily to be presumed, however, in the absence of any evidence to the contrary, that a duly executed instrument in form a will was executed animo testandi.”

The court recognized 'the general principle that to -be the last will and testament of Pearl Robichaux Williams it must have been executed by her as such, and that the burden rested upon appellee as the pro-pondent of the will to establish that issue, by submitting to the jury special issue No. 2. The point at issue on this appeal is the admissibility of the testimony set out above, offered by appellant to establish the fact that in executing the instrument it was not the intention of Pearl Robichaux Williams that it should operate as her last will and testament.

Considering first appellant’s third point: Appellee offered the instrument as the last will and testament of Pearl Robichaux Williams. The evidence raised the issue that, at the very time it was executed, it was the intent of the deceased in executing the instrument and of appellee as the named beneficiary that it should operate only as a mortgage. The deceased owed appellee money advanced by him for her use and benefit. The evidence raised the issue that when this debt was paid the instrument should not be effective. Clearly, it was admissible for appellant to show that, after the death of Pearl Robichaux Williams, appellee’s mother tendered him and he accepted as a payment on his debt against the deceased the sum of $5 collected by the mother from insurance due because of Pearl’s death.

Points 1 and 2 advanced by appellant present the point of the admissibility of declarations of deceased made after the execution of the instrument as to its nature and of her intention in executing it. The admissibility of declarations made before and subsequent to the execution of wills is a point of great difficulty. Under the jurisprudence of this state declarations of the testator made before and subsequent to the execution of the will are admissible on the issue of undue influence, Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; on the issue of forgery, Johnson v. Brown, 51 Tex. 65; on the issue that the will had been revoked, McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025. As we understand the reasoning of our Texas cases, such declarations are admissible on the theory that they tend to establish the mental state of the deceased at the time the will was executed, and that only such declarations are admissible “as tend to reveal it by being in themselves expressive of his mental state.” Scott v. Townsend, supra [106 Tex. 322, 166 S.W. 1144]. In Wood v. Wood, 241 Ky. 506, 44 S.W.2d 539, 540, the court of appeals of Kentucky said: “Declarations of the alleged testator, before and after the supposed testamentary act, are competent in corroboration of other evidence of the main fact to which the declarations are addressed.” .

That the instrument in issue was not intended by the deceased to operate as her last will and testament was shown by testimony independent of that offered and excluded. The letter excluded by the court was written by the deceased within six days of the execution of the instrument; thus, it appears that the letter was written “within a period not too remote,” and that the issue was independently raised —two conditions discussed and given controlling effect by our Supreme Court in Scott v. Townsend, supra.

Appellee had no vested interest under the instrument in issue; his right to probate the instrument rested upon the intention of the deceased in its execution. No one could speak with more authority on that issue than the deceased herself. Since under the Brackendridge and Shiels cases it is permissible to prove the intention, though it conflict with the language of the instrument, it is clear to our minds that the letter excluded by the court should have been received in evidence. We cite generally the following additional authorities, all in point and sustaining our conclusion: Atherton v. Gaslin, 194 Ky. 460, 239 S.W. 771; Clark v. Hugo, 130 Va. 99, 107 S.E. 730; Estate of Watkins, 116 Wash. 190, 198 P. 721, 17 A.L.R. 372; Holloway v. Parker, 197 Ark. 209, 122 S.W.2d 563, 119 A.L.R. 1359; Hoppe v. Byers, 60 Md. 381; Madden v. Sevier, 271 Ky. 688, 113 S.W.2d 41; Moos v. First State Bank, Tex.Civ.App., 60 S.W.2d 888, 891; Quick v. Quick, 3 Sw. & Tr. 442; Robinson v. Stuart, 73 Tex. 267, 270, 11 S.W. 275; Russell v. Tyler, 224 Ky. 511, 6 S.W.2d 707, 709; Tynan v. Paschal, 27 Tex. 286, 300, 84 Am. Dec. 619.

Appellee would support his judgment by the following proposition from 44 Tex.Jur. 751: “A will is within the inhibition of the general rule, forbidding the modification of a written instrument by parol evidence, accordingly it is settled that extrinsic or parol evidence be not admissible for the purpose of adding to, contradicting, or detracting from, or varying a will. The rule that excludes parol evidence must be adhered to even though it result in a partial or total failure of the testator’s intended disposition.”

And the same author, at page 686, said as follows: “Primarily the testator’s intention is gathered from the terms of the will itself, that is, from the purport of the words or meaning of the terms used, and from these alone. If there is no ambiguity in the writing, the intention must be drawn from its language, unaffected by assumption or expression, based upon extraneous circumstances.”

This authority is not in point. When an instrument is admitted to probate as a will it must be construed by the language used by the testator. The contest in this case was against the probate of the instrument as a will; its construction as written was not before the court.

The excluded testimony was in its nature cumulative, but its materiality cannot be questioned. This court cannot say. that, had the jury been advised by appel-lee’s mother that he received $5 as a payment on the debt owed him by the deceased or had the jury been permitted to weigh the letter written by the deceased to her father, it would not have returned a negative answer to question No. 2.

From what we have said, it follows that the judgment of the lower court should be reversed and the cause remanded for a new trial.

Reversed and 'remanded.


author: CHRISTIAN, Judge.

text:
    Herman KIRBY, Appellant, v. STATE of Texas, Appellee.
    No. 20870.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to rob; the punishment, confinement in the penitentiary for eight years.

Upon the written request of appellant, duly verified by his affidavit, 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:
    C. Z. ROGERS, Appellant, v. STATE of Texas, Appellee.
    No. 20957.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    L. F. Benson, of Pittsburgh, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is forgery; the punishment, confinement in the penitentiary for two years.

Upon the written request of appellant, duly verified by his affidavit, 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.


author: GRAVES, Judge.

text:
    Wm. L. THORNTON, Appellant, v. STATE of Texas, Appellee.
    No. 20978.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of arson, and his punishment assessed at two years confinement in the penitentiary.

Since his appeal was perfected, the appellant has filed a written request, verified by his affidavit, asking the privilege of withdrawing his appeal. The request is granted and the appeal ordered dismissed.


author: PER CURIAM.

text:
    Nancy JACKSON, Appellant, v. D. F. HARLAND, Appellee.
    No. 10665.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1940.
    Rehearing Denied Feb. 7, 1940.
    Kelley, Looney & Norvell and L. C. McLean, all of Edinburg, for appellant.
    Cameron & Hardin, of Edinburg, for ap-pellee.
   PER CURIAM.

Affirmed without written opinion. See Associated Indemnity Corporation et al. v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.

NORVELL, J., did not participate in the decision of this case.


author: SMEDLEY, Commissioner.

text:
    SIMONDS et al. v. STANOLIND OIL & GAS CO. et al.
    No. 7308; Motions Nos. 13766, 13779.
    Commission of Appeals of Texas; Section B.
    Deb. 7, 1940.
    For former opinions, see 103 S.W.2d 784, 114 S.W.2d 226.
    B. T. Fitzhugh, of Tyler, Raymond P. Elledge and Vernon Elledge, both of Houston, Ralph B. Shank, of Dallas, and Greenwood, Moody & Robertson and Dan Moody, all of Austin, for plaintiffs in error.
    Coke & Coke, Turner, Rodgers & Winn, M. S. Church, Prentice Wilson, Carl W. Wade, and Evan S. McCord, all of Dallas, and Clay Tallman and L. A. Thompson, Jr., both of Tulsa, Okl., for defendants in error.
   SMEDLEY, Commissioner.

The Court permitted plaintiffs in error' to file a second motion for rehearing and, because of such action, granted like permission to defendants in error.

Plaintiffs in error in their said motion complain of only that part of the decision by which it was held that the evidence as a whole conclusively proves that Percy McGeorge in the years 1922 and 1923 was a nonresident of Texas. They contend that there is in the record evidence which “proves prima facie” that McGeorge was during those years a resident of Texas and that therefore an issue of fact was made. The evidence relied upon consists of several deeds to Percy McGeorge in which he is described as “of Dallas, Texas” or “of the County of Dallas, State of Texas”, together with the fact that Mc-George during those years owned a furnished residence in the City of Dallas.

The record contains also the following undisputed evidence: Percy McGeorge and his father, William McGeorge, Jr., residents of Pennsylvania, were engaged with another brother in the farm loan business under the firm name William McGeorge, Jr. & Sons, with their principal office in Philadelphia. They established an office in Dallas, the exact time not being shown. In connection with that business Percy McGeorge made short visits to Texas until 1906 and from 1906 to 1921 he usually spent several months in Texas each year. McGeorge purchased a house in Dallas and used it as a place of residence while he was staying there. He continued to own the house to the time of the trial. About the first of June, 1921, Percy McGeorge left Texas, going back to Pennsylvania, and thereafter remained out of Texas, except for occasional visits to Texas thereafter made. He was in Texas once for a few days in 1926. George K. Merriweather, who was McGeorge’s assistant in the Dallas office when McCeorge returned to Pennsylvania in 1921, remained in Dallas in charge of the office until 1928, when the office was closed. A short time after Mc-George returned to Pennsylvania in 1921 Merriweathér moved into the house in Dallas owned by McGeorge.

McGeorge testified that he did not sell the house in Dallas and did not move the furniture when he left Texas in 1921 because he expected to return in the latter part of that year or in the next year to superintend the making of further loans. His father died August 14, 1922, and he and. his brother continued in business under the same firm name for sometime thereafter.

McGeorge testified that when he left Texas 'in 1921 he intended to return whenever it was necessary to do so to look after the making of additional loans, but that he never intended to return to Texas to live there. He testified further that he never regarded the house in Dallas as a residence, but merely as a place where he or Mrs. McGeorge could stay during visits to Texas, that since January 1, 1922, he had at all times actually lived and maintained his residence in the State of Pennsylvania and that he had always maintained his residence in the State of Pennsylvania and had regarded himself when in Texas as a visitor for the purpose of looking after the loan business. Merriweather testified that McGeorge left Dallas about the first of June, 1921 and did not return until the summer of 1926, when he came to Dallas and stayed three or four days and that from that time until September, 1928, Mc-George never again returned to Dallas. The record does not show that McGeorge was in any way engaged in business in Texas after 1928, when the Texas office was closed, but it appears that he continued to reside in Pennsylvania. He resided there when his-deposition was taken in this case in 1934 or the early part of 1935.

In our opinion it conclusively appears from the evidence above set out that McGeorge was not a resident of Dallas or of Texas after he left Dallas and returned to Pennsylvania in June, 1921. It is true that most of the foregoing evidence is taken from the testimony of McGeorge, which was given by deposition taken by plaintiffs in error. McGeorge, named as one of the defendants in this case, filed a disclaimer setting out the fact that he had theretofore conveyed the land to Mabel Shoemaker. At the time the suit was filed and at the time when McGeorge’s deposition was taken, he had by deed to Mabel Shoemaker and by oil lease to Cranfill and Germany divested himself of whatever title he had in the land in controversy. Plaintiffs in error contend that, notwithstanding McGeorge’s disclaimer, he is an interested witness because his disclaimer is not an unqualified confession of plaintiffs in error’s cause of action, which is a suit for rents and damages as well as for title. We think, however, that even if McGeorge is to be classed as an interested witness, conclusive effect should be given to his testimony, because it is clear, positive and unequivocal on the point in issue, because plaintiffs in error had. opportunity to contradict or discredit his testimony, it having been taken by them by deposition in advance of the trial, because the testimony is wholly uncontradicted except by the slightest of evidence, the statements in the deeds that McGeorge is of Dallas or of Dallas County, and because the testimony is corroborated by the testimony of Merri-weather, a disinterested witness, on the most important fact, McGeorge’s departure from Texas and return to Pennsylvania in June 1921, and his continued absence thereafter from «Texas save for one visit of a few days in 1926. Great Southern Life Insurance Company v. Dorough, Tex.Civ. App., 100 S.W.2d 772, 775, 776; Trinity Gravel Co. v. Cranke, Tex.Com.App., 282 S.W. 798, 801; American Surety Co. v. Whitehead, Tex.Com.App., 45 S.W.2d 958, 961; Felts v. Bell County, 103 Tex. 616, 132 S.W. 123; Golden v. First State Bank of Bomarton, Tex.Civ.App., 38 S.W.2d 628, 629; City of San Antonio v. E. H. Rollins. & Sons, Tex.Civ.App., 127 S.W. 1166, 1173, 1174. The testimony of Percy Mc-George with respect to his residence in Pennsylvania, his absence from Texas and the maintenance of the principal office of the partnership in Philadelphia is further corroborated by correspondence that passed between Merriweather and the Philadelphia office, a part of which correspondence was between Merriweather in Dallas and Percy McGeorge in Philadelphia.

We do not believe that the words “of Dallas” and “of Dallas County” apr pearing in the deeds to Percy McGeorge rise to the dignity of recitals of fact as to the place of his residence. They are merely descriptive phrases added to the name of the grantee as a further means of identification. It is true that Article 1292 sets out a form of deed, providing that the form, or the same in substance, shall be sufficient as a conveyance of the fee simple of real estate, and that the form describes the grantee as of a town or county and state. Of course such added matter of description is not essential to the validity of the deed and an error in it does not defeat the conveyance. Ballard v. Carmichael, 83 Tex. 355, 368, 18 S.W. 734.

McGeorge’s acceptance of deeds describing him as of Dallas or of Dallas County would not be an admission by him that he was in fact a resident of Dallas or Dallas County when the deeds were accepted. He had theretofore during several months of each year been personally present in Dallas engaged in business. It was natural that persons executing instruments to him affecting-Texas land should refer to him as of Dallas or Dallas County. If he had believed that the words were intended to describe him as a resident of Texas he would have known that the error would not affect the validity of the deeds and that it was not of sufficient importance to require correction.

Plaintiffs in error cite Peurifoy v. Wiehusch, 132 Tex. 36, 117 S.W.2d 773, in which it was held that the positive recital, in a release of lien executed by the owner of two notes secured by the lien, that the notes had been paid raised an issue of fact as to payment of the notes. Such positive recital of fact, peculiarly within the knowledge of the owner of the notes and of primary importance to him, contained in a . formal release of lien executed by him because, according to its terms, the notes had been paid to him, and to evidence their payment, is clearly much more convincing evidence and of much greater probative value than are the descriptive phrases “of Dallas” or “of Dallas County” contained in the deeds executed by other persons to McGeorge.

We are thoroughly convinced, after again reviewing the evidence and carefully considering the arguments made and authorities cited by plaintiffs in error, that the evidence as a whole conclusively proves-that Percy McGeorge in the years 1922 and 1923 was a nonresident of Texas. We do not believe that any impartial, reasonable mind, after examination of all of the evidence, including that relied upon by plaintiffs in error, could reach any other conclusion.

It may be conceded, as contended by plaintiffs in error, that the deeds describing McGeorge as a resident of Dallas or Dallas County and the evidence that Mc-George continued to own a furnished house in Dallas, in the absence of other evidence,' would have proven prima facie that Mc-George resided in Texas. Stated in another way, a presumption of fact might' have arisen fr6m the evidence relied upon by plaintiffs in error. But prima facie evidence and presumptions of fact disappear when the true facts are conclusively shown by other evidence. “Prima facie evidence is merely that which suffices for the proof of a particular fact until contradicted and overcome by other evidence.” Dodson v. Watson, 110 Tex. 355, 358, 220 S.W. 771, 772, 11 A.L.R. 583. Evidence which, uncontradicted and unexplained, would be prima facie evidence of a fact becomes insufficient to raise an issue of fact when the other facts in evidence conclusively prove that the fact sought to be shown by the prima facie evidence or presumption of fact does not exist. Geffert v. Yorktown Independent School District, Tex.Com.App., 290 S.W. 1083, 1085; American Surety Company of New York v. Cross, Tex.Civ.App., 80 S.W.2d 470, 473; Moore v. Wooten, Tex.Com.App., 280 S.W. 742, 747; Martinez v. Gutierrez, Tex. Com. App., 66 S.W.2d 678, 684; Largen v. State, 76 Texas 323, 328, 13 S.W. 161; Mc-Cutchen v. Purinton, 84 Tex. 603, 604, 19 S.W. 710; Langford v. El Paso Banking Company, Tex.Civ.App., 1 S.W.2d 476, 479; Crabb v. Zanes Freight Agency, Tex. Civ.App., 123 S.W.2d 752, 755.

The cause having been remanded for trial to the district court, plaintiffs in error, of course,- will have the opportunity to introduce other evidence bearing upon the question discussed herein which might warrant a different conclusion from that ■expressed in this opinion.

The second motion for rehearing filed by defendants in error has been carefully considered. Both of the said second motions for rehearing are overruled.

Opinion adopted by the Supreme Court.


author: HICKMAN, Commissioner.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. FLANAGAN.
    No. 7267.
    Commission of Appeals of Texas, Section A.
    Feb. 7, 1940.
    J. Russell Mount, of Houston, for plaintiff in error.
    Renfro & Keen, of Beaumont, for defendant in error.
   HICKMAN, Commissioner.

This is a compensation case. The suit was instituted by Frank Flanagan by next friend, but he became 21 years of age before it was tried and the judgment ran in-favor of him in person. The Industrial Accident Board denied him compensation on account of injuries sustained by him and he instituted this suit in the District Court to set aside the order of the Board and, to recover compensation for incapacity and for certain hospital bills, doctor’s bills and medical expenses. The petition sought recovery to an amount in excess of $1,000, but the recovery was for $315. The insurance carrier appealed to the Court of Civil Appeals, which court held that the pleadings were defective and on that ground reversed the judgment of the trial court and remanded the cause. 103 S.W.2d 446. Both parties accepted that ruling as being correct and no error is assigned thereon. We are, therefore, not authorized to review it.

The controlling- question here is whether Flanagan, under his own testimony and the undisputed facts of this record, is entitled to any compensation. The essential facts are few. The Service Drug Company was the employer, Flanagan the employee, and plaintiff in error, the insurance carrier. Flanagan sustained personal injuries on the streets of Beaumont while returning to his home after work hours about ten o’clock at night when the bicycle upon which he was riding was struck by an automobile. For a few weeks prior to the accident he had been employed by the Drug Company to deliver parcels in the City of Beaumont. He furnished his own bicycle, kept it in repair and used same as a means of transporting the parcels. He could not have procured or retained his job without furnishing a bicycle. His home was about 2½ miles from the drug store. After he left the drug store at the close of his day’s work at ten o’clock p. m. on the night he was injured he was free to go where he pleased and his employer had no control over his movements. On that night he was going home by the most direct route and was within two blocks of his home whet) the automobile struck him. He sometimes delivered parcels on his way home, but had none for delivery on that night.

Another fact pointed out, but which we regard as of no significance, is that the drug company did not provide and maintain a place at its store for the storage of Flanagan’s bicycle. There is nothing in this record that would suggest that the reason Flanagan was riding his bicycle was that he was compelled to do so because he had no other place to leave it than at his home. He made no request for permission to leave it at the drug store and even if he had done so, we are unable to perceive how that would affect the question of whether his injuries grew out of his employment. This young man was riding home and the question of whether he was then in the course of his employment is not answered by a consideration of the mode of travel employed by him in doing so.

We have a typical case of an employee’s being injured on a public street while returning home from his work. No rule of the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., is more clearly established than that an- employee is not to be regarded as being within the scope of his employment while going to and returning from his work over and along the'public streets. This case falls within the general rule and not within any exception thereto. London Guarantee & Accident Co., Ltd. v. Thetford et al., Tex. Com.App., 292 S.W. 857; Smith v. Texas Employer’s Ins. Association, 129 Tex. 573, 105 S.W.2d 192; American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949, error refused, expressly approved in Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Sullivan v. Maryland Casualty Co., Tex. Civ.App., 82 S.W.2d 1089, error refused, and the many cases therein cited.

The opinion of the Court of Civil Appeals cites and apparently bases its decision of this question upon Maryland Casualty Co. v. Smith, Tex.Civ.App., 40 S.W.2d 913. No application for writ of error was filed in that case and it appears to be out of harmony with many decisions by this court. The Supreme Court of California in Postal Telegraph Cable Co. v. Industrial Accident Commission, 1 Cal.2d 730, 37 P.2d 441, refers to that case as being the only one contrary to the accepted rule there reaffirmed that an employee is not entitled to compensation under facts analogous to those here involved.

We are cited to a recent opinion by this court in Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791. There is nothing held or written in the opinion in that case which in anywise overrules or restricts the opinion by the same Judge in the case of Smith v. Texas Employer’s Insurance Association, supra.

The rule herein followed has been the adopted rule of this court for many years, at least since the decision in the Thetford case, supra. The Legislature has not seen fit so to amend the statutes as to cover risks incident to travel on public highways while going to and returning from work, although it has seen fit to amend it so as to permit recovery for risks not formerly held to come within the purview of the definition of employee. The question must thereforé be regarded as settled and no longer an open one in this jurisdiction.

The judgments of the trial court and Court of Civil Appeals are both reversed and judgment here rendered that defendant in error take nothing.

Opinion adopted by the Supreme Court.


text:
    Ex parte WRIGHT.
    No. 20921.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    H. D. Stringer, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is an appeal from an order of the district court of Hall County remanding the relator to jail until and when he should post a $1000 bond.

From the record it is made to appear that on December 4, 1939, a complaint was filed against relator, charging him with the offense of burglary. On the same day he was placed in jail by virtue of a warrant of arrest directed to the sheriff. On December 16th application was made to the district judge for a writ of habeas corpus; the writ was issued and a hearing had on December 19th. The State offered the complaint and warrant of arrest and rested.

Appellant insists that by virtue of'Art. 233, C.C.P., and related statutes, he is entitled to his release by this court. In order to clearly show the conclusion necessary to be reached, it will be necessary to set out a few of the statutes relative to an accused’s rights upon arrest. Art. 218, C.C.P., provides: “A ‘warrant of arrest’ is a written order from a magistrate, directed to a peace officer or some other person specially named, commanding him to take the body of the person accused of an offense, to be dealt with according to law.”

Art. 233, C.C.P., provides: “The officer, or person executing a warrant of arrest, shall take the person whom he is directed to arrest forthwith before the magistrate who issued the warrant, or before the magistrate named in the warrant.”

Art. 24S, C.C.P., provides: “When the accused has been brought before a magistrate, that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel.”

The relator offered the testimony of the justice of the peace before whom the complaint was filed, who testified that he had been available in his office at all times since December 4th for an examining trial in this cause, and that a warrant for the arrest of the relator was issued on December 4, 1939, the same day the complaint was filed. That no commitment had ever been issued to the sheriff, and no bond fixed for Henry Wright (relator). The county attorney, Carl Periman, testified' that Henry Wright and another were brought before him on December 4, 1939. The justice of the peace was present during part of the time he was talking to the boys. He took written statements from each of them. The statements were not sworn to, and the justice of the peace did not certify to the statements as an examining- magistrate.

It appears from this record that on December 4, 1939, the sheriff of Hall County received a warrant of arrest directing him to arrest Henry Wright and another and bring them before the justice of the peace of precinct No. 1, Hall County, Texas, instanter to answer a complaint charging the offense of burglary. It also appears that the sheriff executed ■ such warrant on the same day by arresting Henry Wright and another, and placing them in jail on the same day the warrant was issued. The proof further shows that relator remained in jail from December 4th to December 16th, at which time he sued out this writ of habeas corpus, and that on December 19th this hearing was had and bail granted in the sum of $1000.

The only proof offered by the State was the complaint and warrant of arrest. The question that now arises is: Is such proof sufficient to overcome the presumption of innocence that surrounds the accused?

Art. 155, C.C.P., provides, in the hearing of a habeas corpus writ, that “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority.”

We think the case of Ex parte Guynn, 116 Texas Cr.R. 121, 32 S.W.2d 187, 188, seems to be in point. In that case, when the relator was brought before the district judge, the commitment appeared to be regular in form, and was introduced, showing a waiver of an examining trial, and the holding of relator to answer to the grand jury in a bond for $500. The only testimony, save the papers in the case, was that of the sheriff who testified as follows: “I am sheriff of Victoria County. I am now and have been investigating this man and another by the name of Roper Hall for robbery with firearms. I am still investigating it.”

Judge Morrow wrote in that case as follows: “The only evidence found in the present record which is regarded as an attempt by the state to discharge the burden of proof mentioned is the testimony of the sheriff. From his testimony it does not appear that an offense has been committed; nor where it is thought to have been committed; nor that there is any evidence to identify the accused as the perpetrator of an offense. At the time the testimony was given, some twelve days after the appellant was incarcerated, the witness failed to state that his investigation resulted in the discovery of any incriminating fact against the appellant. The circumstance that the sheriff failed to disclose any evidence known at the time of the appellant’s arrest and incarceration or discovered in the time intervening, notwithstanding the investigation by the sheriff, and there being no other witness called by the state to discharge the burden of proving the existence of facts from which it appeared that the appellant was guilty of any criminal act, the record is deemed bare of any proof which would justify the trial court in refusing to discharge the accused as required by the articles of the Code of Criminal Procedure quoted above.”

It was also stated in such opinion that: “As stated by Judge Davidson : ‘When one is held in custody under a complaint and - seeks release, it is incumbent upon the State to introduce against him sufficient evidence to show probable cause for holding hint.’ Ex parte Villareal, supra [80 Texas Cr.R. 23, 187 S.W. 214.”

Also see Article 158, C.C.P., as follows: “Where, upon an examination under habeas corpus, it appears to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail.”

It will be noted that the provisions of Article 233, C.C.P., have been entirely disregarded herein. This provides that a person held under a warrant of arrest shall be forthwith taken before a magistrate. The word “forthwith” has been held to mean within a reasonable time, without unnecessary delay. Schreiner v. Hutter, 104 Neb. 539, 177 N.W. 826; also with reasonable promptness and dispatch. State v. Montgomery, 28 N.M. 344, 212 P. 341.

It will be herein noted, however, that relator was never taken before the officer issuing the warrant; that there was never any examining trial had nor waived; no commitment issued, and no bond ever fixed until the hearing on this writ, of habeas corpus, although relator was confined in jail for a period of twelve days before the writ was granted, and for a period of fifteen days without any bond having been fixed.

For the failure of the State to discharge the burden of proof herein, and in line with the case of Ex parte Guynn, supra, this judgment is reversed and the relator ordered discharged.


text:
    SELLMAN v. STATE.
    No. 20801.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Glenn Capps, of Mason, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing beer in a dry area for the purpose of sale; the punishment, a fine of $250.

The offense charged is denounced by Art. .666 — 4, Vernon’s Ann.Texas P.C. The penalty applicable is set forth in Art. 666 — 41, Vernon’s Ann.Texas P.C., the minimum penalty being $100. The trial court gave the penalty prescribed in Art. 667 — 26, Vernon’s Ann.Texas P.C., in which the minimum penalty is fixed at $25. In charging the provisions of the article last mentioned the court fell into error, and appellant’s exception to the charge should have been sustained. However, it is not every misstatement of the penalty that will work a reversal of the judgment. In the present case it is observed that the fine assessed against appellant was $250, which was an amount between the minimum'fine and the maximum fine prescribed in Art. 666 — 41, supra. Under the circumstances, we are constrained to hold that the erroneous charge of the court relative to the penalty did not injure the .rights of the appellant. Sulak v. State, 118 Tex.Cr.R. 112, 40 S.W.2d 157.

The evidence is deemed sufficient to support the judgment of conviction.

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: KRUEGER, Judge.

text:
    O’REAR v. STATE.
    No. 20792.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.

      Reid & Reid, of Abilene, fo.r appellant.
    Lloyd W. Davidson, State’s Atty.., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for possession of intoxicating liquor in dry area; the punishment assessed is confinement in the county jail for 90 days.

There are two counts in the complaint and information. The first charged the unlawful possession of beer in dry area for the purpose of sale. The second count charged the unlawful sale of such beer to R. P. Boyd in dry area. The case was submitted on the first count only.

The state’s testimony, briefly stated, shows that R. P. Boyd, accompanied by other officers of Taylor County, went to appellant’s home armed with a search warrant to search for liquor. Boyd alone went up to the house and asked to purchase some beer, while the other officers remained in the automobile. Appellant went to the ice box, got two cans of beer, placed them in a paper bag and handed them to Boyd who paid him 40 cents therefor. Boyd then signalled the other officers to come and a further search was made but it failed to reveal any other intoxicants. Appellant did not testify but offered his son, Warren, who stated that on his way home from Odessa on the day in question he had purchased six cans of beer. That he drank four of these and two of them he brought home and placed in the ice box. Thereafter Mr. Boyd came into the house, opened the ice box, took the two cans of beer and offered to pay for them, which payment appellant declined. He left the money on the mantle, remarking: Take it or leave it as you like.” Also living at appellant’s home were two bachelors by the name of Ralph and appellant’s two sons, one of whom was married.

Bill of exception No. 6 reflects the following occurrence. While the constable of precinct No. 1 of Taylor County was testifying for the state, he stated that the Ralph brothers (who owned and jointly occupied the premises where appellant and his sons resided) had requested the witness to “clean up that mess out there.” Appellant objected on the ground that this was hearsay and prejudicial. The objection was ■ sustained and the jury orally instructed not to consider it for any purpose. Thereafter the County Attorney, in his closing argument to the jury, commented upon the testimony of the constable as follows: “The evidence proves that there are two or three families living there. Chester lives there and the Ralph boys live there. Who had possession of this beer? Whose was it? I have got to prove to the jury whose beer it was, beyond a reasonable doubt. If they had one case or two cans, beer is beer; those Ralph boys drink and Mr. McQuary did not know they drank like they did, when they told him that the place where O’Rear handles beer is his own home, and they wished the officers would clean it up. He (meaning one of the Ralph boys) told Mr. McQuary that when he talked to him about it, that he wished the officers would clean it up. * *”

To all of which appellant objected that it was prejudicial and that the hearsay testimony had been withdrawn from the jury. The court was requested to instruct the jury to disregard the argument, but he allowed the county attorney to continue along the same lines. We are of the opinion that this bill reflects reversible error. The testimony was purely hearsay and the court properly sustained appellant’s objection thereto when it was first offered, and withdrew it from the jury. Consequently it was highly improper for the county attorney, in his closing argument, to advert thereto and discuss it. The court, when appellant objected to the argument, told the county attorney to “go ahead.” This accentuated the error, as it no doubt conveyed to the jury the idea that the court had changed his mind and that the evidence was admissible and- they had a right to consider it. Had the court, over the objection of appellant, admitted it in the first instance, the same would probably have caused a reversal of the case, and when the court sanctioned a discussion thereof by the county attorney, the error was accentuated. See Alexander v. State, 126 Tex.Cr.R. 62S, 72 S.W.2d 1080. 42 Tex Juris. P. 251, Sec. 192 et seq.

We see no need in discussing any of the other matters complained of by appellant, as they might not arise again on another 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.


text:
    HARPER v. STATE.
    No. 20790.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    W. S. Moore, of Gainesville, for appellant.
    Lloyd W, Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary; the punishment assessed is confinement in the state penitentiary for a term of 2 years.

The record is before us without statement of facts or bills of exceptions. The indictment is sufficient to charge the offense and procedural matters appear, to be in due and proper order.

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:
    STEPHENS v. STATE.
    No. 20794.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    M. L. Walters, Jr., of Jefferson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is rape; the punishment assessed is confinement in the state penitentiary for a term of 5 years.

The record is before us without a statement of facts or bills of exceptions. in the absence of which his requested charges cannot be considered. The indictment is sufficient to charge the offense and procedural matters appear to be in due order.

. 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:
    FELLERS v. STATE.
    No. 20778.
    Court o,f Criminal Appeals of Texas.
    Jan. 31, 1940.
    Duncan. & Davis, of Gonzales, for appellant.
    , Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is embezzlement of $20.24. The punishment assessed is confinement in the county jail for fifteen days and a fine of $25.

This prosecution arose under and by virtue of a contract entered into by the defendant and one W. B. Green. This contract provided that for the. period of one year (during the year 1938) the relation of landlord and tenant should exist between the parties; that Green would rent to the appellant a 70 acre farm, and as rent should receive about one-third of the crops raised thereon. The contract further recited that “if and when we obtain any U. S. Govt, money on this farm we agree to share equally in the division of same.” Said contract was duly signed and witnessed on December .31, 1937. Later appellant received a check from the government for $70, while .Green received one fon only $30. He insisted that he was still due some $20.00 because of the terms of the contract, and hence appellant was prosecuted for embezzlement.

The offense of embezzlement is defined by Art. 1534, P.C., as follows: “If any officer, agent, clerk, employe, or attorney at law or in fact, of any incorporated company or institution, or any clerk, agent, attorney at law or in fact, servant or employe of any private person, copartnership or joint stock association, or any consignee or bailee of money or property, shall embezzle, fraudulently misapply or convert to his own use, without the consent of his principal or employer, any money or property of such ‘principal or employer which may have- come .into his. possession oi- be under his care by virtue of such office, agency or employment, he shall be punished in the same manner as if he had committed a theft of such money 'or property.”

It has been many times said by this court that: “In order to sustain a prosecution for embezzlement against an agent of a private person or corporation, four distinct propositions of fact must be, established in evidence, beyond a reasonable doubt. * * * 1. That the defendant was the agent of the person or corporation as alleged, and by the terms of his employment was charged with the duty of receiving the money of his principal. 2. That he did so receive money belonging to his principal. ' 3. That he received it in the course of his-employment. 4. That he embezzled, misapplied, or. converted, it to his own use.” That statement is found in Pye v. State, 91 Tex.Cr.R. 158, 237 S.W. 916; Gilliard v. State, 79 Tex.Cr.R. 46, 182 S.W. 1136; Pope v. State, 71 Tex. Cr.R. 261, 158 S.W. 527; Hamer v. State, 60 Tex.Cr.R. 341, 131 S.W. 813; Taylor v. State, 29 Tex.App. 466, 16 S.W. 302; Huntsman v. State, 12 Tex.App. 619; Webb v. State, 8 Tex.App. 310, 311.

It is apparent then that the relation of principal and agent must exist in some form. If the proof fails to show that the same was established beyond a reasonable doubt the proof would be insufficient to sustain the conviction. That rule is applicable to the facts of this case.

It is also fundamental that in cases of embezzlement or theft title must be at the time the offense is committed in the injured person. This $70 check was payable to appellant and was his, given to him by the U. S. Government for some reason not shown, and title passed into him. The $30 check belonged to Mr. Green, coming from the same source, and was Green’s property, with full title- thereto. The only reason that Green could claim any portion of appellant’s check was because of that portion of the rental contract which provided that “if and when we obtain any U. S. Govt, money on this farm we agree to share equally in the division of same.” Then by virtue of this contract each owed the. other equal division of these moneys, failing which they violated this last portion of the contract, and thereon would lie a civil suit for such violation.

The necessary element of principal and agent is not here present. Mr. Green had no greater rights nor different rights from appellant. Both obligations were the same and rested not in the penal law of embezzlement but only in the right given by this contract. There is no agency present, each check being the property of the person to whom it was made payable. When these funds went into each person’s possession, they were his own to do with as each pleased, and there became subject to the terms of this contract which each' could follow as he saw fit, and which contract depended for its enforcement upon the civil code alone. The facts herein do not evidence an embezzlement. See Copeland v. State, 127 Tex.Cr.R. 611, 78 S.W.2d 972; also Branch’s Penal Code, Sec. 2605.

The judgment is therefore reversed and the cause remanded.


author: BEAUCHAMP, Judge.

text:
    VALDEZ v. STATE.
    No. 20802.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Russell S. Ponder, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was charged by complaint and information with the offense of aggravated assault with a motor vehicle. Upon the trial of the case he was convicted of a simple assault and his punishment assessed at a fine of ten dollars.

The record is before us without statement of facts or bills of exception. Nothing has been presented authorizing a reversal. The judgment is therefore affirmed.


text:
    MONEYHUN v. STATE.
    No. 20809.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    W. E. Martin, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted under a complaint and information containing two counts, one for the possession of intoxicating liquor, to-wit: whisky, for the purpose of sale in a dry area, and the other for the sale of whisky in a- dry area, and he was sentenced to serve ninety days in the county jail.

We are early met with the proposition that the verdict of the jury is insufficient, and therefore no verdict upon which a judgment can be predicated herein. The verdict reads as follows:

“No. 10311. Guilty, 90 days in jail
“Geo. T. Moore, Foreman.”

Appellant cites us to the case of Shaw v. State, 2 Tex.App. 487, in which case the following verdict was held to be fatally defective: “We, the jury, the defendant guilty, and assess the punishment at two years’ confinement in the penitentiary at hard labor.” It will be noticed that the jury omitted the word “find” in their verdict, and on account of the omission of such word the verdict was held insufficient. We think this Shaw case went too far in demanding exactitude in a jury’s verdict, and this court has gradually adopted a more liberal view in such matters, which has evidenced itself in the overruling of some of the older cases in recent years as evidenced in Bowman v. State, 101 Tex.Cr.R. 535, 276 S.W. 275; also Sec. 646, Branch’s Penal Code, and cases there cited.

The better rule, so we are impressed, would be that if the intention of the jury can be arrived at by a fair interpretation of their written findings, and from such findings, then such interpretation thereof should be given effect; however some element of accuracy should appear therein showing that same is a finding of the jury, and its finding should correspond to the court’s charge thereon. Too much can not be left to interpretation, nor to speculation. Probably this jury intended to find defendant guilty, and to assess his punishment at confinement in the county jail for ninety'days, but it would take rather a comprehensive interpolation to thus write their verdict. For example we will attempt to do so, placing the interpolated words in parentheses: “(We, the jury, find the defendant) guilty, (and assess his punishment at) 90 days in jail. Geo. T. Moore, Foreman.”

It will be noted that the major portion of this verdict has to come by our construction, and we are impressed with the idea that such is too great a departure from Art. 693, C.C.P., which reads as follows: “The verdict in every criminal action must be general. Where there are special pleas upon which the jury are to find, they must say in their verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, they must find that the defendant is either ‘guilty’ or ‘not guilty,’ and they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.”

We are not willing to lend our approval to such a scantily worded verdict as here presented. To do such would establish a precedent that might finally eventuate in but two words upon the part of the jury in its verdict, leaving the balance of a complete verdict to be interpolated by others than the jury.

The judgment is reversed and the cause remanded.


text:
    HERD v. STATE.
    No. 20731.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Conviction for a misdemeanor; punishment being assessed at a fine of $200.

The verdict reads, as follows: “Guilty. Penalty $200. Joe M. Stacy.”

Appellant’s contention that the verdict is insufficient must be sustained. In Mo-neyhun v. State, Tex.Cr.App., 136 S.W.2d 219 this day delivered, the court held the following verdict to be insufficient:

“No. 10311. Guilty, 90 days in jail.
■ “Geo. T. Moore, Foreman.”

In the course of the opinion in the Mon-eyhun case the court said: “Too much can not be left to interpretation, nor to speculation. Probably this jury intended to find defendant guilty and to assess his punishment at confinement in the county jail for ninety days, but it would take rather a comprehensive interpolation to thus write their verdict. For example we will attempt to do so, placing the interpolated words in parentheses: ‘(We, the jury, find the defendant) guilty, (and assess his punishment at) 90 days in jail. Geo. T. Moore, Foreman.’

“It will be noted that the major portion of this verdict has to come by our construction, and we are impressed with the idea that such is too great a departure from Art. 693, C.C.P., which reads as follows: ‘The verdict in every criminal action must be general. Where there are special pleas upon which the jury are to find, they must say in their verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, they must find that the defendant is either “guilty” or “not guilty,” and they shall assess the punishment in all cases where the same is not absolutely fixed by law to spme particular penalty/

“We are not willing to lend our approval to such a scantily worded verdict as here presented. To do such would establish a precedent that might finally eventuate in but two words upon the part of the jury in its verdict, leaving the balance of a complete verdict to be interpolated by others than the jury.”

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.