author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    PHILLIPS v. STATE.
    No. 20874.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.

      Herbert G. Tigner and King C. Haynie (on appeal only), both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for life.

Winnie Fred Wilcox, the alleged injured party, testified, in substance, as follows: She was approximately 16 years of age at the time of the alleged offense. On the 3rd of August, 1938, Doris DeWall, Betty Lilley, Vernon Kulbeth, Fred Redding and appellant came to a point near her home in two Ford automobiles. She had not previously known Kulbeth, Redding or appellant, but was well acquainted with Doris DeWall. She had’ seen Betty Lilley around the school she attended but had never spoken to her. Doris DeWall introduced her to those she had not previously known. After this introduction she and Fred Redding entered one of the automobiles and drove away, following the car in which Doris DeWall, Betty Lilley, Vernon Kulbeth and appellant were riding. They proceeded to Magnolia Gardens, arriving there about 3:30 p.m. With the exception of prose-cutrix, everybody ordered beer. She expressed the desire to drink a coca-cola, but upon her companions becoming insistent, she ordered a bottle of beer. She drank only a few swallows, as beer always made her sick. Eventually some one ordered wine, and, with the exception of the prosecutrix, each member of the party drank the wine. After the wine had been finished, Vernon Kulbeth and Doris De-Wall went for a ride in appellant’s car. After they had driven away, Fred Redding insulted prosecutrix. Upon learning that prosecutrix would not comply with his request, Redding made the same suggestion to Betty Lilley. Eventually Redding and Betty Lilley drove away in Redding’s car, leaving appellant and prosecutrix alone. She and appellant discussed her school work, she stating to him that she was assistant librarian in the San Jacinto High School. After Redding and Betty Lilley returned with the car prosecu-trix expressed the desire to go home, saying that her grandmother would be worried if she stayed too long. However she said that she would like to see Doris DeWall before they left, as Doris had invited her to ride with appellant and the other parties. Thereupon she and appellant entered the car with Redding and Betty Lilley, she sitting in appellant’s lap.

At this juncture we quote from the testimony of prosecutrix, as follows:

“We got in the car. Fred Redding was driving and Betty Lilley was sitting in the middle, and I was sitting in Leo Phillip’s lap. It was just a coupe; that’s the only thing I could do. So they turned off on a little road, You know, there’s a highway, and then you go down a long dirt road to get to Magnolia Gardens — that’s the way I remember it — and there’s a way to turn off between the highway and Magnolia Gardens; there’s a sort of little turn off in there. So I learned that Fred Redding and Betty Lilley had already been there, or knew where they (Doris and Vernon) were. Anyway, as we went down there, Fred drove too fast. There was a sort of curve, and' their' car was parked there. Well, he went too far around thé curve, and we saw them, Vernon Kulbeth and Doris DeWall.

“Leo Phillips then started cursing Fred Redding, and told him he had gone too far, and that he knew better, and he would knock the hell out of. him if he didn’t get away from there. So. he backed up pretty fast, and Leo Phillips kept calling him everything he could think of. * * * Leo Phillips- hit Fred Redding, and Fred Redding didn’t hit back. He hit him several times, and Fred just-sat there. Leo sort of pushed me to the side and hit him several times, and told him to get out of the car, and he called him the same language that he had called him previous to that, and so Fred got out of the car, and when he did, Betty slid out and ran, and when Leo got out, I slid out and ran.. We each ran in a different direction. We thought the boys were fighting behind us, but they were both running after us. ,1 started running to Doris and hollering ‘Help!’ She was the only one I knew to run to. I was about half way there— it was about a block, I think; I am not quite sure — and it was very bumpy, uneven ground, and I. didn’t get quite half way to them when something hit me; it was Leo (appellant). We were both running, and I had on high heels and the ground was very uneven, and it seem to me that he hit me with the side of his hand; anyway, he pushed me over. Then he grabbed me up, because Fred had caught Betty and put her in the car. The car then left.”

Again, prosecutrix testified, in substance, as follows: After Betty Lilley and Fred Redding drove away, Doris DeWall and Vernon Kulbeth picked up the blanket upon which they had been lying, and entered the car. Appellant pushed prosecutrix in the car and “started after Fred Redding.” Kulbeth was driving, but appellant had charge of the car. Driving at a high rate of speed, they endeavored'to overtake Red-ding and Betty Lilley. Eventually appellant directed Kulbeth to turn off the highway, saying that he was “going to get what he came after.” After the car stopped Kulbeth and Doris DeWall got out. Kul-beth placed a blanket on the ground directly behind the car. Prosecutrix walked toward the road where she met Frank McGee. Be^ ing uneasy in the ■ situation in which she found herself, she told McGee she was in trouble and needed his help. She told him she wanted to go home. Observing-a ranch house, not far away, she asked McGee to let her ride, his horse. He replied that the horse was wild and he did not believe she could ride it.. When the last statement was made appellant was present. She then asked McGee to let her lead the horse, and he agreed. She, McGee and appellant were proceeding- toward the ranch house, she leading the horse when appellant apparently observed the house and stated' to her that he wanted her to get in the car. She replied that it was her desire to stay where she was. McGee also insisted that she be permitted to stay. An argument ensued, with the result that appellant ordered Kulbeth to get a gun and blow McGee’s head off. At this juncture McGee left the scene and proceeded toward the ranch house.

Again, we quote from the testimony of prosecutrix as follows:

“When the cowboy turned, I said I was going to stay there until the sheriff came, and Leo hit me; he didn’t just exactly hit me; he shoved me, shoved me down, and then he kicked me, and then he hit me sort of on the thigh or hip or something. It left a big black bruise for about two weeks;, it was kind of high up, almost to my waist, but not quite.

“He then told me to get back in that car, ‘get back in there damn quick’, and all the time he used terrible language, ‘damn’ and ‘hell’ and those words I told you a while ago. He used them all the time, and he called me a ‘bitch’ and ‘whore’ and a ‘satchel’. I don’t know what that means, but it didn’t sound right. He just cursed right and left, and shoved me back in the car. • He said he’d teach me to play around, * * * I was sort of sitting on his lap, sort of, not very much, and he started hitting me across the back of the head with both fists. He was so mad he could die, and he was just beating on me, just like that, right around in here, in the back of my head and my shoulders. I was not struck in the face, because I had it covered up like this, with my arms.

“Doris DeWall told him not to hit me, and so did Vernon, he said, ‘Leo, cut it out; she has had enough of that.’ He said something to that effect; I don’t remember just what he did say. Both ■ of them protested, but Vernon’s was kind of halfhearted. Leo told him to shut his damn mouth; he would ask him when he wanted something, or wanted some advice.”

Prosecutrix testified that after they left the pasture they drove down a road and stopped the car. Her feet were hurting her and she removed her shoes in order that she might run away in the event appellant sought to molest her. When appellant opened the door and procured a blanket she ran as fast as she could, but appellant overtook her and knocked her down. Again, we quote from the testimony of prose-cutrix :

“That time he hit me; I don’t know just how he did hit me. I was still sort of groggy from the other licks and was running as fast as I could, and just something hit me, and I know that time he knocked me down, and he sort of half way picked me up and about half way pushed and shoved me along. He said, ‘Come on, you are going back this way; I have had all this damn foolishness I am going to take off of anybody’, ‘off of any whore’, is what he said.

“Then he took me back down. I don’t quite remember much about that; I just remember getting there, and he just threw it down, the blanket or whatever it was, and next I went down. He caught me right here and shoved me down.

“I had on a two piece dress, sort of white linen crash; very heavy material, but its cool, but doesn’.t tear easily — a skirt and little jacket that comes up ánd buttons up at the bottom. He caught it right here and yanked it. He caught it at the front and yanked it open, and then he just sort of felt around.

“I had on a brassiere. It was not taken off of me. It was the kind that was very tight across the bottom, but was rather loose fitting across the- front; it was just tied and will hold up with the straps, but was loose across the top. He felt around my breast. It was open down the front, and he grabbed hold of the skirt. Then he raised the waist to tear it off. Anyway, he pulled it all off, and then he held me down with one hand. I was still fighting, but it didn’t do much good. I had on a sort of panty girdle effect, and he pulled that off; he yanked and unhooked that. He got some awful holds on my neck, and then yanked with the other. Every time I’d start to get up he’d push me back. He finally got it off and tossed it over on the side. And then, well, he did it.

“He put his hands right here on my shoulders like that, mashed them down, and used one knee, well, sort of separated mine, my knees, and then he did it. He put it in. I have heard what the private parts of a man are called since then, but I don’t remember what they are. It was daylight. Yes sir, he had sexual intercourse with me at that time.”

After leaving the place where appellant had assaulted the prosecutrix, the parties drove to a drink stand which was on the main highway. According to the testimony of prosecutrix, she left the car and entered the drink stand. However, appellant followed her and she only had the opportunity to say a few words to the woman who was in charge of the place. About the time she and appellant were re-entering the car she saw two men come around the side of the drink stand. She started to holler at them but appellant shoved her into the car and they drove away. According to her' version, they traveled to an oil field, where the car was again stopped. While at the oil field appellant again forcibly ravished her. Touching this assault, she testified as follows:

“While we were there this defendant had another act of intercourse with me. That was not with my consent and permission. Besides an act of sexual intercourse something- else happened with this defendant. Well, he got me by the back of the neck with a very awful hold, right across here, and, well, then he put it in my mouth. Yes sir, he put his private parts in my mouth.

“That was at the oil field where he did that, the place he had just previously had the sexual intercourse with me. I was about half way in and about half way out of the car at that time. That’s when he knocked me down and I got' the big bruise on my head. I hit my head against the steering wheel of the coupe.

“I don’t know how long we stayed there; I don’t remember much about it, but we couldn’t have stayed there over an hour, I don’t think.

“This defendant was mostly cursing; I don’t remember much of what he said; I was just sort of dazed.

“At the time this defendant put it in my mouth, why, I objected, naturally, and he said that was the way he made his living. He said, I might just as well get used to that, because that’s the way he made his living, like that. That was immediately after the act of intercourse that this defendant had had with me. * * *

“While we were there at the oil field some cars passed us going out of that road, but we had to back out to let them out, or let them in. Leo Phillips had to do that; he was in the car then, driving. Leo Phillips and I then were in the car alone, and every time some one would want out they would stop far enough up there that he would have enough room to pull up, he’d back up, and he would drive with the left hand and put his other around the back of my neck or shoulder, and it just hurt terribly, and he said if I hollered he’d kill me, and then he would back far enough down the road to let them by; it seems like nearly all of them went towards the highway, if I remember correctly.

“There was a car that came by there that had some men in it, and Doris DeWall screamed, and Vernon shoved her in the car, and they backed out as quick as they could and left.”

After leaving the oil field, the parties drove to the home of Doris DeWall’s mother, where prosecutrix and Doris left the car. Prosecutrix ran into the house and took down the receiver for the purpose of calling her uncle. She testified: “The first thing I did when I got inside was to call Mr. Jones, my uncle, and that’s all I ■ remember. I didn’t hang the receiver up they told me later; The next thing I recall or have any knowledge about is I remember Uncle Buck coming, and two policemen with him, or sheriffs.”

Prosecutrix was immediately removed to Jefferson Davis Hospital, where she was examined by physicians. One of the physicians testified that the hymen of prosecutrix showed a deep break; that the parts were discolored, swollen and bleeding. Another physician testified that he found a tear in the hymen, and flecks of blood about the vulva. Pie said: “It was fairly fresh blood. Within a few hours at least.” Further, it was his testimony that an analysis of a smear taken from the prosecutrix disclosed “a great many active male secretive cells, spermatozoa.” In short, the testimony of the physician was to the effect that the hymen had been recently ruptured.

Appellant did not testify. However, he introduced parts of the testimony of prose-cutrix taken on the habeas corpus hearing for the purpose of showing discrepancies between the testimony there given and that elicited upon the trial. He also introduced Doris DeWall, whose testimony was to the effect that there was nothing in the actions of prosecutrix during the time the parties were on the trip to Magnolia Gardens and the oil field to indicate to her that any force had been used on prosecu-trix. It was her version that when prosecu-trix and appellant returned to the car the clothing of prosecutrix was not disheveled and that there was no mud on her, notwithstanding the point at which they had stopped was muddy. Further, it was her version that prosecutrix at no time made-outcry. This testimony contradicted the-testimony of prosecutrix that she had screamed at the time she was assaulted. In short, the testimony of the witness tended to show that appellant had not had sexual relations with prosecutrix on the occasion in question.

Mrs. DeWall testified that prosecutrix’s clothing was in good order when she came, to her house, and called for her uncle.

In rebuttal, the state introduced a witness who testified that he saw prosecutrix after the alleged assault and that her clothing was rumpled and torn. He said: “Her dress was torn on the side.” This witness also testified that when he entered the home of Mrs. DeWall, Doris DeWall and prosecutrix were pulling their hair and screaming, “I am ruined.”

The state relied upon the transaction in the oil field, which was the second assault. In view of appellant’s contention that the fii’st act of intercourse rendered the prose-cutrix unchaste and ■ that the second act was with her consent, we have deemed it necessary to make the foregoing detailed statement of the testimony adduced upon the trial. If the first act of intercourse was with the consent of prosecutrix and not accomplished by force, appellant could not be properly convicted for the second act if prosecutrix consented to such act, notwithstanding he himself committed the first act. Article 1183, P.C., reads as follows: “Rape is the carnal knowledge of a woman without her consent obtained by force, threats or fraud; or the carnal knowledge of a woman other than the wife of the person having such carnal knowledge with or without consent and with or without the use of force, threats or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having carnal knowledge of her knowing her to be so mentally diseased; or the carnal knowledge of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of ■ force, threats or fraud; provided that if she is fifteen years of age or over the defendant may show in consent cases she was not of previotis chaste character as a defense" (Italics ours.)

Under the italicized portion of the statute this court has held that one prior act of intercourse renders the female unchaste, notwithstanding the prior act was with the defendant. Norman v. State, 89 Tex.Cr.R. 330, 230 S.W. 991. However, if the prior act constituted rape by force, such prior act would not render the female ■unchaste. See Coots v. State, 110 Tex.Cr.R. 105, 7 S.W.2d 539. In 35 Texas Jurisprudence 848 it is said: “A conviction for rape by force is not sustainable unless the evidence shows beyond a reasonable doubt that the prosecutrix did not consent to the act of intercourse and that she put forth every exertion and means within her power to thwart the purpose of her assailant.” We think the evidence we have hereinbe-fore set out was sufficient to warrant the conclusion of the jury that prosecutrix did not consent to the act of intercourse with appellant, and that she put forth every exertion and means within her power to prevent him from having sexual relations with her. It follows that we are constrained to overrule appellant’s contention that the evidence shows that prosecutrix was not a chaste woman at the time appellant had the second act of - sexual intercourse with her. We might add that we deem the evidence sufficient to show that the second act of intercourse was accomplished by the use of force.

Two counts were embraced in the indictment. In the first count the indictment charges the offense of rape on a female under the age of 18 years. In the second count rape by force, threats' and fraud is alleged. Only the first count was submitted to the jury. It is appellant’s contention that the count last mentioned does not directly and affirmatively allege that Winnie Fred Wilcox, prosecutrix, was not the wife of the appellant. Omitting the formal parts, the first count reads as follows: “Leo Phillips * * * did have carnal knowledge of Winnie Fred Wilcox, a female then and there under the age of eighteen years, and then and there not being the wife of the said Leo Phillips.” We are unable to agree with appellant that it is not affirmatively averred that prosecutrix was not the wife of the appellant. In looking to Section 1768 of Branch’s Ann.Tex. P.C., we find that the form of indictment there set forth is substantially the same as that hereinabove quoted. Further discussion of the question is not deemed necessary.

Appellant excepted to the charge of the court for its failure to define the terms “force,” “threats” and “fraud”. The opinion is expressed that the exception was not well taken. The evidence, from the standpoint of the state, was definite that prosecu-trix at the time of the alleged offense was under the age of eighteen years, and that the appellant did, in fact, have carnal knowledge of her. It has already been observed that it was her version that the act of intercourse was without her consent. In short, according to her testimony, appellant used force in consummating the rape, which she was unable to prevent, notwithstanding she made the utmost resistance. Under the state’s testimony, the appellant was guilty of rape, although he used no force, threats or fraud. Hence the court was not required to define such terms. Ne-Smith v. State, 93 Tex.Cr.R. 203, 246 S.W. 1038; Ulmer v. State, 71 Tex.Cr.R. 579, 160 S.W. 1188

Bill of exception No. 1 presents the following occurrence: Appellant had been indicted as “Leo Phillips, alias Roberts.” Upon it being shown that he had never gone by the name of Roberts, the court sustained appellant’s motion and ordered that the alias be stricken from the indictment. Upon the voir dire examination of the prospective juror Saxon, counsel for the state propounded to him the following ■question: “Do you know Leo Phillips, alias Roberts?” At the time this question was propounded the only juror who had been selected was sitting in the jury box less than ten feet away from the counsel for the state. Counsel for appellant immediately objected to the question, and the objection was sustained. Further, he requested the court to discharge the juror who had been selected. The court qualified the bill of exception as follows: “Sebillo was the first juror chosen or accepted; was the only juror in the jury box, where he had remained after being accepted, without objection on the part of the state or defendant, and there is nothing to indicate he heard or didn’t hear said question. State’s counsel never asked said question again, and the court admonished the juror chosen and the prospective juror Saxon not to consider said occurrence, if they-heard it at all, and thereafter jurors, after chosen, were sent into the jury room. Mr. Peyton asking said question stated he didn’t know said motion changing defendant’s name to Leo Phillips without the alias had been granted and thereafter refrained from asking said question and Saxon was peremptorily challenged by the defendant without stating any reason to the court.” In view of the qualification, which was not excepted to by appellant, to the effect that there was nothing to indicate that the juror Schillo had heard the question, we are of opinion that we would not be warranted in holding that the bill of exception reflects reversible error. It appears that it could have been easily determined whether the juror heard such question. It is to be.presumed that if appellant’s counsel had asked the court to make inquiry of the juror relative to the matter the- request would have been complied with. At all events, we are not impressed with the view that if the juror heard the question he would have been disqualified. In short, we are unable to reach the conclusion that the mere suggestion that appellant might have assumed the name of Roberts was calculated to prejudice the juror against the appellant.

Bills of exception 2, 3, 7 and 8 relate to the same general subject matter and will therefore be treated together. According to the testimony of prosecutrix,, immediately after appellant had ravished her he forced her to take his penis into her mouth, and stated to her “that she might just as well get used to that because that was the way he made his living.” The court qualifies the bills of exception with the statement that the testimony was received as part of the res gestae. The opinion is expressed that the act and declaration in question were part of the res gestae of the rape. Such act and declaration and the offense for which appellant was upon trial were intermixed and blended with one another and so connected that they formed an indivisible transaction. The testimony in question was related to the transaction in that it was part of a detailed statement by the prose-cutrix of the force appellant used upon her at the time he ravished her. Underhill on Criminal Evidence, 3rd Ed., Section 152, lays down the rule applicable here, as follows: “If several crimes are intermixed, or blended with one another, or connected so that' they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be made without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.”

See Claxton v. State, 109 Tex.Cr.R. 345, 4 S.W.2d 542.

In view of what we have said, it follows .that we are constrained to hold that the bills of exception fail to reflect error.

Bill of exception No. 5 complains of the conduct of counsel for the state, and ■the court, with reference to proof of venue. It is contended by appellant that the bill shows that leading and suggestive questions were propounded by the court, as well as by counsel for the state, in seeking to have prosecutrix testify that the offense occurred in Harris County. It might .be that some of the questions set forth in the bill of exception were leading. Be that as it may, it is observed that upon cross-examination by counsel for appellant prosecutrix testified' positively that the' ■ assault upon her occurred in Harris County. We are unable to agree with appellant that the bill of exception reflects reversible error.-

Bill of exception No. 10 is concerned with- the argument of counsel for the.state. We quote the remarks of counsel: “After he had completed that act she says' he stuck his private parts in. her mouth again.” It is clear from the record that the argument was based upon testimony which had been properly received during the progress of the trial. Counsel had the right to comment upon the testimony that had gone before the jury under the rulings of the court.

As hereinbefore shown, the testimony for the state was to the effect that appellant ravished prosecutrix twice. It is shown in bill of exception No. 12 that in argument the district attorney referred to the details of the first transaction in the following language: “Didn’t that arouse your manhood, your brotherhood and your fatherhood as true American Citizens?” Upon objection try appellant to the argument the jury were instructed to disregard it for any purpose. If it should be conceded that the remarks of counsel were improper — and this is not conceded — we would not feel warranted in holding that the argument was so obviously prejudicial that it could not be withdrawn from the jury by timely instruction.

Bill of exception 13 also relates to argument of counsel for the state. It is shown in such bill that counsel employed the following. language: ' “What you do (referring to .the jury), that’s your responsibility. We have put the facts up to you; you are men who say that you are men of courage, say that you can do it, and I submit to you gentlemen under the facts in this case, the defendant’s testimony, ‘that is how I make my living, you will have to learn to like it’ — under that testimony, and if you believe it is the truth, you are bound under your oath to return a verdict of guilty, and assess the maximum penalty. I submit it to you.” Appellant’s counsel objected to the argument on the ground, among others, that it constituted a reference to the failure on the part of appellant to take the stand and testify. We are unable to perceive any reference in the remarks to the failure of the appellant to testify.

Bill of exception 14 is concerned with the remarks of counsel for the state in argument to the jury. As shown in the bill, counsel for the state referred to the mental anguish prosecutrix must have suffered in giving her testimony before a crowded courtroom. It is appellant’s contention that the argument appealed to the prejudice, passion and sympathy of the jury. We find nothing in the remarks which we deem to have been improper.

The argument set forth in bill of exception 15 also was construed by counsel for appellant to constitute an appeal to prejudice. Among other things, counsel for the state said: “This little girl (pros-ecutrix) has to go through life as long as she lives with the thought of that man or beast * * *.” The reference to appellant as “a beast” was no stronger than the language used-in Borders v. State, 72 Tex.Cr.R. 135, 161 S.W. 483, 484, in which it is shown that the prosecuting attorney pointed his finger at the accused and called him “a cold-blooded brute” and “an animal.” In overruling the contention in that case that reversible error was presented, this court said: “While the prosecuting officer ought never to, use epithets of any character, yet the killing, as shown by the evidence in this case, was done in rather a deliberate and brutal manner, and under such circumstances the language used would not present reversible error, and especially is this the case where no special charge was requested in regard thereto.” Nor was the language employed by counsel in the instant case stronger than that used in argument in Frizzell v. State, 30 Tex.App. 42, 16 S.W. 751, 752, 753, in which a death penalty was assessed. There the district attorney referred to the accused as “a tramp, vagabond; and a villain.” Presiding Judge White, in holding that the remarks did not present reversible error, said: “We are of opinion that no injury is shown by this bill of exceptions. It is not shown that the remarks were such that under the circumstances they were calculated to illegally affect the defendant’s rights.” In Jackson v. State, 118 Tex.Cr.R. 443, 42 S.W.2d 433, 434, in which a death penalty was assessed, it is shown that the prosecuting attorney referred to Jackson as “a beast, a black murderer.” The argument was not approved by the court, but was held not to warrant a reversal of the judgment. In the present case, if the state’s testimony was to be believed by the jury, appellant committed an atrocious crime. Having accepted the state’s version of the transaction, it is not strange that the 'jury condemned appellant to confinement in the penitentiary for life. The conclusion is inescapable that the jury looked alone to the facts and circumstances in evidence in assessing the penalty. In determining if an improper argument is of such nature as to be obviously hurtful and prejudicial the facts and surroundings of the particular case must be looked to. We quote from opinion on motion for rehearing in Silver v. State, 110 Tex.Cr.R. 512, 8 S.W.2d 144, 148, 9 S.W.2d 358, 60 A.L.R. 290, as follows: “Another thing that must be borne in’ mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances.” Giving application to the principles controlling, the opinion is expressed that the argument could not have prejudiced appellant’s rights.

Bill of exception No. 23 relates to the action of the court in overruling appellant’s motion for new trial in so far as it was based upon the alleged misconduct of the jury in referring to the failure of the appellant to testify. On hearing of the motion for new trial some of the jurors testified that during their deliberations reference was made to appellant’s failure to testify. Others heard no such reference. One juror said that the matter was referred to but not discussed. We quote from the testimony of one of the jurors: “I said that such a statement was made relative to the failure of the defendant to testify, because I am positive it was made; the statement was made as a side remark to myself. There was no discussion of it generally; it was merely a statement which was immediately cut off.” Another juror testified as follows: “It is not possible that there was some discussion about the defendant not having told his story. I would say definitely that there was no statement about that. It was not discussed absolutely and positively. Whether he took the stand or didn’t was not discussed in the jury, or about his story being told.” The opinion is expressed that the conclusion was warranted that, if any reference was made to the failure of the appellant to testify, it constituted a mere casual mention, which was not followed by any discussion and was not considered by the jury as a circumstance ¿gainst the appellant. See Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266, 267. The evidence heard upon the motion for new trial' is conflicting. Under the circumstances, the decision of the trial judge is conclusive upon this court unless from the record it is apparent that there was an abuse of discretion. This rule has prevailed since the beginning of our jurisprudence. In Day v. State, supra, we said: “The finding of the judge on conflicting evidence is analogous to the verdict of the jury upon the testimony. In each instance the result is binding on the court unless its unsoundness is demonstrated by the record.” Again, we said: “The granting of a new trial for misconduct of the jury is largely in the discretion of the trial court, whose action in refusing a new trial will not be disturbed in the absence of abuse of such discretion.” We think the trial court was warranted in overruling the motion for new trial.'

Appellant contends that the state failed to prove venue. We are unable to agree with this contention. It has already been observed from our discussion of bill of exception No. 5 that prosecutrix stated upon cross-examination by counsel for appellant that the assault upon her occurred in Harris County.

The last contention made by appellant is that the verdict is excessive. As heretofore stated, if the state’s testimony was to be believed by the jury, appellant committed an atrocious crime. Having, accepted the state’s version of the transaction, the jury were, in our opinion, fully warranted in inflicting the penalty shown herein.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

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.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant urges some of the same alleged errors which were considered and discussed in our original opinion. Our views therein expressed remain unchanged, and we see nothing to be accomplished by writing further.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    SNODGRASS v. KELLEY et al.
    No. 10734.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1940.
    Rehearing Denied June 12, 1940.
    Brown & Bader and J. F. Carl, all of Edinburg, for appellant.
    Kelley & Looney and L. C. McLean, all of Edinburg, and Strickland, Ewers & Wilkins, and R. D. Cox, Jr., all of Mission, for appellees.
   SMITH, Chief Justice.

Appellant, Robert C. Snodgrass, instituted this suit in a district court of Hidalgo County, against A. A. Kelley, W. H. Bra-den, Ben King, Otto Woods, Tom Lovett and R. T. Funk, appellees herein, and R. A. Mitchell, J. W. Snodgrass and Lionel La-Borde, for the recovery of $25,275, alleged to be damages from personal injuries received by him while working as an alleged employee of appellees. The injuries were received by him while working on an oil well being drilled on a lease located in Starr County.

The trial court properly sustained a plea of privilege filed by Lionel LaBorde. Snodgrass v. Kelley, Tex.Civ.App., 118 S.W.2d 836. J. W. Snodgrass, father of the appellant, did not prosecute an appeal, and appellant took a nonsuit as to R. A. Mitchell at the close of the plaintiff’s testimony.

Appellant predicates his right to recover against appellees on the theory that they had entered into a mining partnership with said R. A. Mitchell, and that his injuries were proximately caused by the negligent acts of Mitchell in furthering the business of the partnership.

Each of the appellees under oath denied the existence of the alleged partnership, and at the conclusion of the plaintiff’s testimony the trial court granted the appellees’ motion for an instructed verdict. Robert C. Snodgrass has appealed.

On December 21, 1934, Fidel Salinas and wife executed and delivered to R. A. Mitchell an oil and gas lease upon, and conveyance of the 7/8 mineral leasehold estate in, a tract of land in Starr County. Thereafter, on various dates, said lessee Mitchell sold and conveyed specified undivided working interests of said lessee “in and to said lease and all rights thereunder insofar as it covers the” leased premises, to various assignees, including appellees, J. W. Snod-grass, Kelley, Braden, King, Woods, Lovett and Funk, respectively, as well as Clyde Aylesworth and William Sturgeon, who were not impleaded in the case. The record shows that Lovett paid Mitchell, the lessee, $150 for his 1/16 interest; Funk and Aylesworth furnished Mitchell with fuel oil to be used in drilling the well in exchange for their interest; Wood and King paid Mitchell $150 for their 1/16 interest; Braden and Sturgeon paid Mitchell $150 for their 1/1.6 interest; Kelley traded Mitchell a truck to be used in connection with the drilling of the well for his interest, and J. W. Snodgrass was to work on the well for his interest.

Mitchell used his own machinery and machinery he rented in drilling the well in question. The money that he received from the sale of the various interests to the ap-pellees was used by him in drilling the well. He also supplied the additional money needed in drilling the well. He had complete charge of all drilling operations and the employment of all the laborers, including the appellant. His assignees, appellees herein, did not contribute any money, supplies or labor towards the drilling of the well and exercised no control or supervision over it.

Appellant testified that he was employed by Mitchell, that he received all his orders and pay from Mitchell and that he did not know any of the appellees before the trial except Kelley. He received serious injuries while attempting to grease some of the machinery used by Mitchell in the drilling operations.

The appellees having denied under oath the existence of the partnership relation, the burden was upon the appellant to prove that they were members of a partnership. Bolding v. Camp et al., Tex.Com.App., 6 S.W.2d 94; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Cox et al. v. Bond et al., Tex.Civ.App., 91 S.W.2d 479.

Appellant rests his case'upon the contention that appellees, as assignees of undivided interests in the lease owned by Mitchell, the lessee, were engaged in a joint adventure, or mining partnership, with Mitchell, and were therefore jointly liable for the torts committed in the operations of the partnership. We overrule the contention. 12 Tex.Law Rev, 410; 31 Tex.Jur.p. 1039, § 322; Lowry Oil Corp. v. Bennett, Tex.Civ.App., 16 S.W.2d 947; Gardner v. Wesner, Tex.Civ.App., 55 S.W.2d 1104; Bolding v. Camp, Tex.Com.App., 6 S.W.2d 94; Dunigan etc., Co. v. Carroll, Tex.Civ.App., 60 S.W.2d 296.

Appellant contends that the appel-lees participated in the drilling of the well because the money that was paid by some of them for their undivided interests in the leasehold estate was used by Mitchell in drilling the well; that Kelley had traded Mitchell a truck for his interest in the leasehold estate and that Mitchell had used such truck in connection with the drilling of the well; and that Funk furnished Mitchell with fuel to be used in drilling the well in exchange for his interest. We are of the opinion that it is immaterial what consideration each of the parties paid to Mitchell for his interest, and it is also immaterial what Mitchell did with the consideration after he received it. It was his. This point was decided in the case of Lowry Oil Corporation v. Bennett, supra, wherein the Court said [16 S.W.2d 949]:

“We conclude that since J. Lewis Jackson acquired a one-sixteenth interest in the lease in consideration for the hauling of, the drilling rig for Ferguson, and did not agree to become liable for any part of the. expense that might be incurred by Ferguson in the drilling of the well, but merely agreed to haul the rig in consideration of a transfer' to him of one-sixteenth interest in the lease, and the agreement of Ferguson with him to put down the well to a depth of 1,600 feet, he likewise was not a partner with Ferguson in the drilling of the well, and therefore was not liable to the plaintiffs for the oil sold to- Ferguson. The authorities cited above we believe support this conclusion as to Jackson to the same extent as they are applicable to the defense of the Lowry Oil Corporation.

“With respect to the question of partnership growing out of that transaction, in principle, Jackson’s relation to the development of the lease as a result of Ferguson’s contract with him to convey him a one-sixteenth interest in it and to drill the well thereon, for the consideration of hauling the rig, was not different from that of the owner of land who conveys an interest therein in the way' of an oil lease, and in consideration therefor the lessee agrees to develop the lease for oil and gas and to pay the lessor a one-sixteenth or some other portion of the oil, which, under authorities cited above, would not create a partnership relation between the lessor and lessee.”

It is well settled in this State that mere ownership of an undivided interest in the 7/8 leasehold estate created by an oil and gas lease does not make one a mining partner with the others who own an interest in such leasehold estate. Bolding v. Camp et al., Tex.Com.App., 6 S.W.2d 94; Gardner v. Wesner, Tex.Civ.App., 55 S.W.2d 1104; Dunigan Tool & Supply Company v. Carroll et al., Tex.Civ.App., 60 S.W.2d 296.

It has also been held that the sharing in net profits of a mining adventure does not create a relation of a mining partnership. Gardner v. Wesner, Tex.Civ.App., 55 S.W.2d 1104; Lowry Oil Corporation v. Bennett et al., supra.

Appellant further contends that the appellees and Mitchell were joint owners of the leasehold estate and had agreed to jointly drill the well and were to share the profits from the production .of oil, if any, and that the parties were mutual agents for each other. The question of mutual agency has little or no bearing on the issue of whether or not the partnership has been created. We are inclined to believe it is an incident that follows in the event the partnership was created rather than a fact to consider in determining the existence of such pártnership. We are also of the opinion that the evidence in this case fails to show a joint ownership of the leasehold estate. The assignments clearly show that each party owned an undivided interest in the estate, but there is no evidence to show that they were joint owners of any portion of such leasehold estate. This distinction is clear and material. We are also of the opinion that the evidence fails to show a mutual undertaking pf the drilling operations. The evidence is undisputed that Mitchell had absolute control of all drilling operations. There is no evidence to' show that the appellees contributed any money, labor, or services toward the drilling of the well. As above stated, the only thing that they did was to purchase an undivided interest in the leasehold estate. We are also of the opinion that the evidence fails to show that any mutual sharing of profits was contemplated in Mitchell’s drilling the well in question. Under the law as it now exists in this State each of the appellees was entitled to his undivided interest in the minerals and would also be entitled to the same if production was had. As co-tenants they would be entitled to receive their portion of the production, but it does .not necessarily follow that they were to share in any profits made by Mitchell out of his undivided interest, if any profits were made by him. The profits, if any, made by him out of his leasehold estate would be his profit, and not one that he would have to share with someone else.

The principal holding herein seems to be more or less inconsistent with the opinion in. the recent case of Sheffield v. Burch, Tex.Civ.App., 136 S.W.2d 252, in which writ of error has been granted by our. Supreme Court, upon the ground that “we are inclined to the view that the record shows no mining partnership.”

We are of the opinion that the record does not ■ show -that appellees entered into a mining partnership with Mitchell, and for such reason the judgment will be affirmed.

NORVELL, J., disqualified and not sitting.


text:
    LOBBAN v. WIERHAUSER.
    No. 10669.
    Court of Civil Appeals of Texas. San Antonio.
    April 24, 1940.
    Rehearing Denied June 12, 1940.
    Ingrum & Morris, of San Antonio, for appellant.
    Harry Hertzberg and Marion R. McClan-ahan, both of San Antonio, for appellee.
   SMITH, Chief Justice.

Appellant, W. P. Lobban, brought this suit in equity against appellee, H. J. Wier-hauser, seeking to impress a parol trust upon certain real estate conveyed to Wier-hauser by a stranger, on April 12, 1913. The facts of the case will be stated from plaintiff’s petition, to which the general demurrer was sustained below.

Appellant contacted one D. C. Jones, the owner of the property which appellant believed could be resold within a reasonable time and at a reasonably good profit over the proposed sale price of $1,250. Not having the purchase money, and being unwilling to involve himself in debt, appellant entered into an agreement with appellee, whereby the latter, on April 22, 1913, furnished the money for the purchase price, which was paid over to Jones, the vendor. By consent of all, Jones conveyed the property to appellee, upon an agreement that appellant should not incur any personal liability in the transaction and that appellee would look alone to the property for repayment of the purchase price, with interest. Appellee agreed that the title should vest in him in trust for appellant, as security for the loan, and that he would convey the property to appellant’s nominee when appellant paid appellee, or caused to he paid to him, the sum of $1,250 with 8% interest from April 22, 1913.

It was further agreed that the rents and revenues from the property should be- collected by appellee, and applied to taxes and maintenance costs, the surplus, if any remaining, to be retained by appellee and credited upon the sum he had advanced until it was liquidated, the net balance to go to appellant. About a year after this agreement, which was in parol, the parties entered into a written stipulation, which was in accordance with the oral agreement. This suit, however, is based entirely on the oral contract.

Thereafter appellee collected the sum of $2,100 or more as rental from the land up to about the year 1921. At that time appellee sold one-half of the land for $2,500, and, in 1927, the other one-half for $3,500.

At the time of the first sale, appellant requested an accounting, but the only written statement made by appellee in response thereto was not dated, itemized or intelligible. On numerous occasions during the next fifteen years appellant orally requested an accounting, which appellee orally agreed to furnish, but never did. On August 5, 1935, appellant made a written request for a statement, whereupon appellee repudiated the trust. This suit was brought on July 1, 1937. Appellant claimed that all of the real •estate was sold and converted into cash by appellee, at a profit of at least $7,500, for which appellant sued and prayed for an accounting.

Wierhauser urged a general demurrer to the petition, which was sustained, and Lobban, refusing to amend, has appealed from the resulting adverse judgment.

Appellant contends that the facts alleged are sufficient to create an express trust in his favor under the familiar doctrine of James v. Fulcrod, 5 Tex. 512, 5 Am.Dec. 743.

An express trust is one which results from, and is based on, a contract which involves the separation of the legal and the •equitable title. Wheeler v. Haralson, 128 Tex. 429, 99 S.W.2d 885.

An express trust must be supported by a valid consideration, which may consist of a prior interest in the land, a payment of the purchase price, or a legal obligation to repay all or a part of the purchase price. This obligation of repayment may be payable at a fixed time, or on demand, or on an installment basis. The point is that it must be a legal obligation to repay the money. Wright v. Wright, Tex.Com.App., 132 S.W.2d 847; Trinity Fire Ins. Co. v. Solether, Tex.Civ.App., 49 S.W.2d 940; Solether v. Trinity Fire Ins. Co., 124 Tex. 363, 78 S.W.2d 180.

Prior to the conveyance by Jones to Wierhauser appellant had no interest in the land, nor did he furnish, or become bound for, any part of the purchase price. Wier-hauser’s agreement was no more than a promise to buy land and later convey it to appellant at a certain price. Such a promise does not create a trust. Watkins v. Watkins, Tex.Civ.App., 141 S.W. 1047; Schutz v. Harris, Tex.Civ.App., 149 S.W. 242; Friedsam v. Rose, Tex.Civ.App., 271 S.W. 417.

Appellant alleges that Wierhauser lent him the money and that he thereby furnished the purchase price for the land. This is but a conclusion of the pleader, which we think is negatived, rather than supported, by facts specifically pleaded. Appellant did not want to involve himself in debt, was very careful to assume no personal liability for the so-called “loan,” and imposed a positive condition that he be not obligated to repay any part of the money. It was agreed, and so transpired, that Wier-hauser would look to the property alone for reimbursement. Appellant owed nothing to appellee and the relation of debtor and creditor did not exist. 13 Tex.Jur. 548, § 2,

Appellant was not obligated to find a purchaser for the land in order to repay the advancement by a sale within a reasonable time and for a reasonable price; he was not even bound to accept the land if appellee had attempted to convey it to him. He suffered no detriment, and appellee gained no benefit by reason of the alleged loan.

Appellant contends that certain services he performed in clearing the title to the land are sufficient to support the trust. Those services were no part of the purchase price and there is no allegation in the petition that appellee requested that they be performed, or that they were performed for his benefit. Appellee would not have entered into the agreement at all if the vendor’s title had been imperfect. While appellant may have a claim against the vendor or appellee for an agent’s commission or an attorney’s fee for the services rendered, they do not constitute any consideration which can support the alleged trust.

In the absence of allegations that appellant paid, or became legally bound to pay, some part of the purchase price, the petition does not state facts constituting a trust. Friedsam v. Rose, Tex.Civ.App., 271 S.W. 417; Frank v. Gaffney, Tex.Civ.App., 2 S.W.2d 885.

The legal title to the land was conveyed to appellee and appellant never did own the equitable title. Appellee promised to reconvey the land at an advanced price, but this promise, made in parol, in addition to being without consideration, comes within the inhibitions of the statute of frauds, and is therefore unenforceable. Allen v. Allen, 101 Tex. 362, 107 S.W. 528.

Under the facts alleged in the petition,- there is no theory by which appellant can recover and the trial judge did not err in sustaining the general demurrer. This question is raised in appellant’s first assignment of error, which is overruled. Appellant’s remaining assignments of error rest' upon the premise that the trial judge gave effect to certain special exceptions in ap-pellee’s answer. The record shows, however, that those exceptions were not passed upon by the trial judge, and the assignments of error relating thereto are not sufficient to invoke rulings on appeal.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    NORTH EAST TEXAS MOTOR LINES, Inc., v. HODGES.
    No. 12875.
    Court of Civil Appeals of Texas. Dallas.
    April 27, 1940.
    Rehearing Denied June 8, 1940.

      Truett & Truett, of McKinney, and R. T. Bailey, of Dallas,- for appellant.
    John W. West and W. H. Hall, both of Dallas, and Smith & Dowdy, of McKinney, for appellee.
   YOUNG, Justice.

The action beloyv was for damages, by J. L. Hodges against appellant company, alleged to have resulted from defendant’s negligence in the operation of one of its trucks within the corporate limits of McKinney. Personal injuries were suffered by plaintiff’s wife, as well as property damage to the truck driven by Mr. Hodges.

Plaintiff alleged generally that: U. S. Highway No. 75, leading to Dallas, passes through the City of McKinney and, from the public square thereof south to the City limits, traverses Tennessee Street, a paved thoroughfare approximately 36 feet wide; that on November 24, 1936, shortly after sundown, he was en route to Dallas, driving his truck and accompanied by his wife, when he suddenly became blinded by the lights of a car coming from the opposite-direction; that he collided with the rear of defendant’s truck, negligently parked, as plaintiff claimed, on the street; charging various infractions of the Penal-Code with respect to the location of the motor company’s said vehicle. Facts constituting negligence, both direct and. contributory, were plead by the parties, being concisely reflected by the following jury answers: (1) That the rear of defendant’s truck was parked three feet from the . west curb of South Tennessee Street at the time, which was negligence, and a proximate cause of the collision; (2) that defendant’s truck was so parked without headlights burning, being negligence, and a proximate causé of the resulting injuries; (3) that defendant’s truck was without any rear or tail-light burning at the time, which was negligence, and a proximate cause of the collision; (4) that defendant’s driver stopped his truck at said place more than thirty minutes after sundown, and as long as fifteen minutes before the collision; -(5) failure of defendant’s driver to place flares on the highway was a proximate cause of the collision; (6) that immediately before the collision, plaintiff became blinded by the lights of an oñ-coming car, but such was not a new and independent cause of the collision; (7) that plaintiff’s failure to drive clear of defendant’s truck, to the left thereof, was not negligence; (8) that the truck driven by plaintiff was equipped with adequate headlights, then burning; (9) that both plaintiff and his wife were keeping a proper lookout for vehicles parked on said street; (10) that plaintiff had the truck he was driving under proper control; (11) plaintiff was driving twelve miles per hour immediately before the collision, which was not negligence, or a proximate cause; (12) that Mrs. Hodges warned plaintiff of the presence of defendant’s truck prior to the collision; (13) plaintiff’s failure to stop his truck'when he became blinded by the lights of the car approaching from the opposite direction was not negligence; (14) the collision was not the result of an unavoidable'accident; (15) the reasonable cash market value of plaintiff’s truck before and after the accident was $600 and $100. Compensation for injuries to plaintiff’s wife were fixed at $5,000. Following a judgment against it of $5,500, appellant has duly appealed in numerous assignments, the propositions therein complaining, — (1) of the court’s failure to submit “sole proximate cause” in connection with certain primary issues touching the conduct of plaintiff; (2) of improperly placing the burden of proof on defendant in fact issue No. 13 (new and independent cause) ; and of upsetting such burden in issue 22 (unavoidable accident) ; (3) refusal to submit particular issues requested by defendant; (4) alleged error in using the phrase “a proximate cause” instead of “proximately contributing to cause”, following issues involving plaintiff’s negligence; (5) error in admitting plaintiff’s testimony as to the cash market value of his truck.

The trial court did not err in refusing defendant’s requested issues on “sole proximate cause”. In the charge were various fact questions concerning plaintiff’s acts or omissions, and whether same constituted “a proximate cause” of the collision. Affirmative answers to the issues submitted would have been a complete defense to plaintiff’s claims, without visiting upon defendant the more onerous burden of securing findings on “sole proximate cause”. The requested issues become immaterial in a two-party lawsuit where, as here, the negligence of the husband is imputed to the wife, and where, as the court charged, the particular act or omission need not be the sole cause, but may be only a concurring cause, which contributed to produce the resulting injury. Houston Electric Co. v. Settle, Tex.Civ.App., 51 S.W.2d 648; Carter v. Ferris, Tex.Civ.App., 93 S.W.2d 504; 30 Tex.Jur., Negligence, p. 694, Sec. 42. Defendant cannot complain when the issues submitted were more favorable than those embodied in its request; it thereby suffered no prejudice and was deprived of no right. 3 Tex.Jur., Appeal and Error — Civil Cases, Sec. 890, p. 1271.

In proposition seven, appellant contends that the burden of proof was improperly placed upon it in issue 13, reading: “Do you find from a preponderance of the evidence that the blinding headlights of the automobile that J. L. Hodges met immediately prior to the collision in question was a new and independent cause of the collision in question?” Defendant company expressly plead in defense the facts comprehended in the issue just stated. The term “new and independent cause” was defined in the court’s charge in connection with “proximate cause”. Plaintiff had discharged the duty incumbent upon him on the whole case, by securing findings from the jury about defendant’s negligence that excluded the theory of new and independent cause. When defendant sought to utilize the same as an affirmative defense, the burden was upon it to establish the fact, similar to the burden imposed upon the motor company in the submission of its other defenses. Dallas Ry. & Terminal Co. v. Stewart, Tex.Civ.App., 128 S.W.2d 443. While on the subject, we also overrule appellant’s further proposition, that the court’s submission of issue 22 required of it a showing “by a preponderance of the evidence that the collision in question was the result of an unavoidable accident.” The grounds of complaint are quite similar to those urged by the appealing party in McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901, dismissed by agr. The trial court submitted the question in almost the identical language of Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956. Judge Taylor, in Gulf, C. & S. F. Ry. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795, suggested an improved form for this rather troublesome issue, but in no sense did the Supreme Court disapprove the earlier ruling. Hence, the court’s manner of submitting the particular question should not be deemed objectionable. Jackson v. Edmondson, Tex.Civ.App., 129 S.W.2d 369, Syl. 7; Traders & General Ins. Co. v. Jaques, Tex. Civ.App., 131 S.W.2d 133, Syl. 12.

Appellant urges error in the failure to submit issue 7, viz: “Do you find from a preponderance of the evidence that immediately prior to the collision in question. J. L. Hodges was operating his truck at such a rate of speed as that he could not stop it within the range of his vision?”; and issue 12, inquiring if, immediately pri- or to the collision, plaintiff failed to reduce the speed of his truck upon meeting an automobile with blinding lights, approaching from the opposite direction. Collateral thereto, were issues of whether such constituted negligence, and, if so, proximately contributed to cause the collision. We think the fact elements of the requested issues were fairly embodied in the issues given by the court. Certainly No. 12 above, referred to plaintiff’s lack of proper control over his truck; and No. 7 involved not only this element (proper control) but also plaintiff’s inability to see, and stop his truck. Said charge presents all of such facts, as will be seen by a study thereof, and the issues touching plaintiff’s. conduct at the time. The former issue (No. 7) is also multifarious and somewhat indefinite. Its refusal by the court is not considered error.

. It is strongly contended under many propositions, that the court’s charge imposed upon appellant a greater burden than required by law; arguing that the fact questions concerning the negligence of plaintiff and wife were followed by issues inquiring whether same was “a proximate cause” of the collision; that a complete defense to plaintiff’s cause of action is shown, if any of the alleged acts or omissions on the part of Mr. and Mrs. Hodges “proximately contributed to cause” the resulting injuries; and the court erred in refusing all issues wherein its defense was so worded and limited. The language “proximately contributed to cause”, as contained in the issues, was designed to elicit jury answers involving contributory negligence : i. e., whether plaintiff was guilty of acts or omissions amounting to a want of ordinary care, as, concurring or co-operating with the negligent acts of. defendant, were the proximate cause of the injuries complained of. We think all the elements contended for by appellant had been already presented by the court. After defining “ordinary care” and “negligence”, and in connection with the term “proximate cause”, the jury was instructed, “It need not be the sole cause, but it must be a concurring cause which contributed to the production of the result in question, and but for which the said result would not have occurred.” Under such instruction, the jury was privileged to find against plaintiff, if either he or his wife was guilty of any act of negligence which proximately contributed to cause the collision; and appellant’s apprehensions to the contrary are groundless. As pointed out by appellee, it is to be presumed that the jury understood and followed the court’s full definition of proximate cause, and applied the test thereof to each defensive issue answered by them.

Lastly, appellant predicates error in the trial court’s admission of evidence from the plaintiff as to cash market value of his truck before and after the collision, because (it is argued) the witness was shown to be no more qualified than the jurors to give such evidence. Mr. Hodges said, unconditionally, that he knew secondhand values at the particular time and place. This seems to be sufficient, at least to invoke the discretion of the court, and, if admitted, after full direct and cross-examination, becomes a question of the weight the jury sees fit to place upon it. Foster v. Burgin, Tex.Civ.App., 244 S.W. 244; City of Waco v. Roberts, Tex.Civ.App., 12 S.W.2d 263; Ft. Worth & D. C. Ry. Co. v. Hapgood, Tex.Civ.App., 210 S.W. 969; City of Trinity v. McPhail, Tex.Civ.App., 131 S.W.2d 803, Syl. 4; or, as briefly stated in 19 Tex.Jur., Expert and Opinion Evidence, Sec. 141, p. 218: “Where a witness' swears positively to the market value of an article the fact that his testimony tends to show that he does not in fact know the market value merely weakens his estimate and leaves it to be weighed by the jury.”

We are convinced that no reversible error appears in this record. Appellant’s assignments £nd propositions must therefore be overruled, and the judgmént of the district court affirmed.

Affirmed.


author: LOONEY, Justice.

text:
    GRAHAM v. NEW MEXICO EASTERN GAS CO.
    No. 12862.
    Court of Civil Appeals of Texas. Dallas.
    April 27, 1940.
    Rehearing Denied May 25, 1940.

      Marshall McCullough, of Dallas, and Joe Burkett, of San Antonio, for appellant.
    Scott Hughes and Willis L. Lea, Jr., both of Dallas, for appellee.
   LOONEY, Justice.

Marion S. Graham, a feme sole, resident citizen of Bexar County, Texas, sued the New Mexico Eastern Gas Company, a Delaware corporation, doing business in this State under a permit, and maintaining its principal office and place of business in the City of Dallas, Dallas County, Texas, alleging that, she was the holder and owner of a certificate of 25 shares of the preferred stock of the Consumers Natural Gas Company, also a Delaware corporation, providing among other things, that: “In the event of any liquidation, dissolution or winding up of the affairs of the corporation, whether voluntary or involuntary, the holders of the Class A. Cumulative preference stock shall be entitled, before any assets of the corporation shall be distributed among or paid over to the holders of the common stock to be paid thirty dollars ($30.00) per share, together with a sum of money equivalent to the amount of any unpaid cumulative dividends accrued thereon. * * alleged to be $16 per share; alleging further that: “* * * the Consumers Natural Gas Company sold and transferred all of its assets to the defendant, New Mexico Eastern Gas Company, on or about March 30, 1938, and the defendant assumed all of the debts, duties and obligations of the Consumers Natural Gas Company; that at the time of such sale and transfer of the assets, properties and obligations of the Consumers Natural Gas Company, to the defendant, the defendant was informed and well knew that there was outstanding at that time * * *” a certificate for said 25 shares in the hands of plaintiff; praying judgment against the defendant Company, on its alleged assumption, for the value of her stock, $750, the accumulated dividends $400, and $200 attorney’s fees.

Among other defenses, the defendant plead that, the matter in controversy “concerns claims of said plaintiff in her capacity as a stockholder of a foreign corporation, to-wit, Consumers Natural Gas Company, a Delaware corporation, and involves the internal affairs thereof, and that such claims and controversies aré exclusively and properly cognizable before the courts of the said State of Delaware. Wherefore, defendant prays judgment that this court take no further cognizance of this suit.”

The court sustained the plea and dismissed the cause (without prejudice to the right to sue in the courts of Delaware) to which plaintiff excepted, gave notice of and perfected this appeal.

The sole question presented is, whether or not the trial court was correct in sustaining defendant’s plea and dismissing the suit. The doctrine, we think, is well-settled in this state, as well as in the country over, that, it is not within the province of the courts of one state to undertake the supervision, direction or management of the affairs of a foreign corporation. See Royal Fraternal Union v. Lundy, 51 Tex.Civ.App. 637, 113 S.W. 185, 187, and the authorities, cited; Zarate v. Ateca, Tex.Civ.App., 99 S.W.2d 628;. 11 Tex.Jur. p. 192. The major reasons for the rule are stated in Fletcher’s Cyc.Corps., Vol. 17, Sec. 8426, p. 374, as follows: “Two major reasons influence courts of chancery to refuse to interfere in the management of the internal affairs of a foreign corporation: First, because the rights arising between a corporation and its members out of such management depend upon the laws of the state under which the corporation is organized. Second, the courts of that state afford the most appropriate forum for adjudication upon the relation between the stockholders and the corporation, and frequently such courts alone possess jurisdiction and power adequate to the enforcement of all decrees that justice may require. A third reason sometimes assigned is that commonly neither the officers, the governing body, nor the records of the corporation, are within the reach of the decrees, orders or processes of any except the domiciliary courts.”.

Applying this doctrine to the facts of the instant case, we do not think it can be correctly said- that, in order to. try the issues presented it would be necessary to trench upon or violate the reasons underlying the doctrine, for, obviously, the alleged cause of action being ex contractu in nature, and controlled by the principles of the common law and not by the statute of the State of Delaware, trial of the cause would not necessarily, require the presence of any officer or member of the governing body of the Consumers Natural Gas Company, or the production of any of its books or records; and if the relief sought should be granted, that is, judgment against the defendant for debt, its enforcement could be accomplished by the usual process issued and executed in such cases.

The certificate provides that, in the event the corporation is liquidated, dissolved, or its affairs wound up, either voluntarily or involuntarily, the holders of its certificates of the class here involved, would be entitled to be paid $30 per share for their stock, plus cumulated dividends, being precisely the amount alleged to be due and sued for.

As the Consumers Natural Gas Company sold and transferred all of its assets to the defendant Company, the event happened that matured the obligation evidenced by the certificate, and rendered it immediately actionable; that is, the sale of *all its assets, in law, was tantamount either to a voluntary liquidation, dissolution, or winding up of its affairs. In 13 Am.Jur., p. 1163, Sec. 1293, the following pertinent rules are announced: “Voluntary Sale of Assets. — Unquestionably, all corporations are not under positive obligation to the state of their creation- to carry on the business for which they are formed. Purely private corporations may, as a general rule, at any time put an end in fact to their transactions in whole or in part. TheyNinay, subject to the rights of creditors and a qualified right of minority dissenting stockholders, sell all the corporate property and after payment of the corporate debts distribute the balance among the stockholders, thereby in effect working a dissolution of the corporation.”

By purchasing all the assets of the Consumers Natural Gas Company and assuming all its debts, duties and obligations (necessarily including the debt or obliga•tion herein sued upon), the assumption being accepted by the plaintiff, as evidenced by the institution of the suit, the defendant company became the principal obligor, suable alone, without the necessity of making the selling company a party to the action. See Uvalde Const. Co. v. Lawrence, Tex.Civ.App., 93 S.W.2d 213, 216.

The action, being transitory in nature, was maintainable where the defendant was found, for, in the last analysis, the action is simply one for the recovery of debt against the principal obligor. It follows that, in our opinion, the court erred in sustaining the plea and dismissing the suit; therefore, the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: STOKES, Justice.

text:
    BYNUM v. LONG-BELL LUMBER CO.
    No. 5157.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1940.
    Rehearing Denied June 10, 1940.
    A. A. Lumpkin, of Amarillo, for appellant.
    Kimbrough & Boyce, of Amarillo, for appellee.
   STOKES, Justice.

This suit was instituted by appellee against appellant upon a promissory note in the principal sum of $1,257.47, dated June 8, 1931, due and payable December 31, 1932, bearing interest from date at the rate of 10% per annum, and providing for 10% additional as attorney’s fees. Appel-lee filed its original petition December 29, 1936, two days before the note would have become barred by the provisions of subsec. 1, Art. 5527, R.C.S.1925, being our four-year statute of limitation. Citation was immediately, issued to Potter County where it was alleged appellant resided and returned unexecuted because, as stated in the return, appellant was not found in Potter County. Alias citation was issued and directed to the sheriff of Bexar County on March 30, 1938,-which was some fifteen months after the first citation had been returned unexecuted. The alias citation likewise was returned unexecuted for the reason, as stated in the return, appellant could not be found in Bexar County. Pluries citation was issued to Dallas County on the 11th of January, 1939, received by the sheriff of that county on January 12, 1939, and served upon appellant January 13, 1939.

Appellant filed his answer March 17, 1939, in which, after pleading the general issue, he pleaded by special exception and special answer the four-year statute of limitation in bar of appellee’s suit. The case was submitted to the court without the intervention of a jury and judgment was rendered against appellant on the 23d of June, 1939, from which he has perfected an appeal to this court.

The case is presented here upon a single assignment of error in which the action of the court in rendering judgment against appellant in the face of his plea of limitation and the evidence thereon is assigned as error for which it is' insisted the judgment should be reversed.

The undisputed facts as revealed by the evidence are that, at the time he executed the note, appellant resided at .Amarillo, in Potter County. Soon thereafter, however, he removed to Dallas, leaving with appellee his local address there, and ap-pellee’s manager wrote him a number of letters between that time and 193S, addressing them to his place of residence at Dallas. The letters were mailed in envelopes with appellee’s name, address and request for return printed thereon and, while none of them was answered, none was returned to appellee undelivered. During these years between 1931 and 1935 the manager of appellee had a number of conversations with appellant, met him on the streets at Amarillo on some occasions, and appellant visited in appellee’s local office on several occasions. In the early Fall of Í.938, appellee’s manager met appellant on the street in Dallas, when appellant informed the manager that he lived in Dallas and at some time thereafter, appellee’s manager informed his attorney of the fact, but still pluries citation was not issued to Dallas County until January 11, 1939. When it ultimately was issued to Dallas County and placed in the hands of the sheriff of that county, it was promptly and apparently without difficulty, served upon appellant there. The only excuse offered by appellee for not having the citation served more promptly was that its local manager did not know where appellant was living. Appellee’s manager testified that in 1935, in a conversation with appellant, the latter left with him the impression that he was leaving Dallas. No effort was made by the manager, however, to ascertain the place to which appellant was moving nor where he would thereafter be located. The fact is undisputed that during all of the time appellant resided at Dallas. His name appeared in the telephone and city directories and during one year he was in the automobile tire business at a prominent location there. When the note was placed in the hands of appellee’s attorney for suit, he was not informed of appellant’s location nor given any information concerning his removal to Dallas, nor that he had ever resided there. After the case had remained on the docket some fifteen months appel-lee’s attorney was informed that appellant was at the Gunter Hotel in San Antonio, and alias citation was then issued and forwarded to the sheriff of Bexar County. The testimony shows appellant was- at San Antonio on numerous occasions for a few days at a time when he had business there, but at no time did he ever reside there. After closing out his automobile tire business at Dallas appellant accepted employment which required him to travel over the state a great deal and he was away from home about half of his time, but his family, consisting of his wife and two children, continued at all times to reside at Dallas, and the testimony warrants the conclusion that he could have been located there with little difficulty at any time during the two years and more that elapsed between the time the suit was filed and citation ultimately served upon him. Appellee’s manager testified that during this time he made some general inquiries and was unable to locate appellant. He said he could not remember any particular person of whom he made inquiry, but that he made an occasional check-up as to appellant’s whereabouts on an average of about every ninety days. R. C. Alexander, who was bookkeeper and office manager for appellant at Amarillo about twelve years prior to July 4, 1935, testified that he knew appellant moved to Dallas because appellant informed him and the manager of that fact when he moved to Dallas and also that he so informed them upon occasional visits to the office at Amarillo after his removal to Dallas. He said that their letters to appellant were addressed to him at Dallas and that they received letters from appellant showing that he resided there.

Art. 199, Sec. 108, Vernon’s Ann.Civ.St., provides that the court of the 108th Judicial District in which the case was tried convenes six times a year and remains in session approximately sixty days each term. The record shows the court convened upon the regular date each term during the pen-dency of the suit. A calculation will show, therefore, that thirteen terms of the court convened between the filing of the original petition and the service of the citation. Fifteen months elapsed between the issuance of the first citation and the alias citation to Bexar County, and approximately ten months more elapsed before the pluries citation was issued.

From the foregoing statement it will be seen that practically no diligence was exercised by appellee after filing its original petition to procure service of citation upon appellant. During all of the time, amounting to more than two years, appellant lived at Dallas and could, with the slightest diligence, have been located there. Both the local manager and the bookkeeper of appellee not only had no valid reason to believe appellant resided elsewhere than at Dallas, but had every reason to conclude that he did reside there. No information was given its attorney concerning his residence at Dallas and, although the attorney several times made inquiry of appellee’s manager and bookkeeper, they gave him no information concerning appellant’s place of residence, and the only effort to locate appellant which the record shows to have been made by them was an occasional check-up which appears to have been nothing more than a mere routine of business policy in the office which brought the matter to their attention on an average of about every ninety days. In other words, no sort of effort to locate appellant was made oftener than about four times each year and even those that were made were merely superficial in their nature. In our opinion, the record is conclusive that appellee did not exercise reasonable diligence to procure service of the citation. It is well established in this state that statutes of limitation are not interrupted by the mere filing of the petition and casual efforts made to serve the citation. Ricker et al. v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Veramendi v. Hutchins, 48 Tex. 531; Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Ferguson v. Estes, Tex.Civ.App., 214 S.W. 465; Landers v. Jordan, Tex.Civ.App., 126 S.W.2d 677; Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565; First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16.

Art. 5527, subsec. 1, R. CIS.1925, provides that a suit for debt where the indebtedness is evidenced by a contract in writing, shall be commenced and prosecuted within four years after the cause of action shall have accrued. In the above cited cases and many others our courts have consistently held that the limitation provided by the statute is not tolled by filing the petition merely, but that reasonable diligence must be exercised by the plaintiff to have citation served upon the defendant. It was said in Buie v. Couch, supra, that the object of the statute requiring suits to be filed and prosecuted within a fixed time is not only to require the plaintiff definitely to commit himself as to his intentions, but also to advise the defendant thereof in order that the latter may prepare his defense and preserve his evidence in support thereof before it is lost by lapse of time. Whatever may be the reason for the enactment of statutes of limitation, 'they exist in the statutes of all the states, and, in order to interrupt their continuous progress by the filing of a suit, diligence on the part of plaintiffs legally to inform those against whom suits are filed of the fact that suits have been instituted is required by the courts in most of them. Certainly that rule is well established in Texas as will be observed by a reading of the authorities above cited and many other opinions of similar import that have- emanated from our courts.

From what we have said it follows that, in our opinion, the court below erred in rendering judgment against appellant in the face of his plea of limitation and the evident lack of reasonable diligence on the part of appellee to have citation served upon him. The case appears to have been fully developed and no purpose could be served by another trial. The judgment is, therefore, reversed and judgment will be here rendered that appellee take nothing by its suit;


author: MURRAY, Justice.

text:
    ZIMMERMAN v. MILLAN.
    No. 10725.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1940.

      Ditzler H. Jones, of Uvalde, and Geo. C. Herman, of Crystal City, for appellant.
    R. S. Crawford,. of Crystal City, and Suttle &■ Kessler, of Uvalde, for appel-lee.
   MURRAY, Justice.

This is a suit _ for a final accounting of the proceeds derived from the sale of a certain spinach crop planted, grown and harvested in Zavala County.

The trial was to a jury and upon their answers to two special issues judgment was rendered in favor of W. R. Millan, plaintiff below, against Ed Zimmerman, one of the defendants below, in the sum of $3,692.21.

On August 30, 1938, W. R. Millan and Ed Zimmerman entered into the following contract, - to-wit:

“The State of Texas County of Zavala

“This contract and agreement for the growing and financing of a spinach crop, made and entered into this the 30th day of August, A. D. 1938, by and between W. R. Millan and Ed Zimmerman, both of Zavala County, Texas, Witnesseth:

“The said W. R. Millan is the owner of a 360 acre farm, which is equipped for irrigation, situated in Section 114 of the Cross S. Ranch in Zavala County, Texas, and has certain farm tools and equipment now on hand, all of which he agrees to furnish in their present condition.

“It is understood that the said Millan is indebted to the Federal Land Bank of Houston in the sum of -Dollars,. which he must secure with a portion of the crop grown on the above mentioned farm.

“The said Ed Zimmerman agrees to furnish the necessary money with which to buy the seeds, prepare the land from this date forward, keep such machinery in condition, buy the fuel, and pay the labor necessary to prepare and timely plant, irrigate and grow such crop of spinach; and to advance said money along as needed for such purposes.

“The said Millan further agrees to supervise the growing and harvesting of said crop without additional charge.

“When such crop, or any portion thereof, is ready for harvest the same shall be harvested, packed and loaded and sold to the best advantage, and sold under the supervision of the said Ed Zimmerman, who shall have the final control of the sale of any and al-1 crops. It is understood, however, that the said Millan shall work with the said Zimmerman in affecting 'sale of any and all crops in order that the same may be sold to the best advantage. The parties hereto further agree that it is their desire to, at all times, when possible to sell said spinach f. o. b. cars at Crystal City, and agree to do so if there is an f. o. b. price for such spinach acceptable to both parties. However, if no f. o. b. price be available that is acceptable to both parties, then and in that instance the parties will consign such crop as agreeable, or dump the same if agreeable, and if consigned, both parties agree to use their best efforts to procure sale by wire thereof in order to recoup the expenses incurred in loading such crops and gain all profits possible.

“When such spinach is sold the parties agree to pay the necessary sum above set out to the Federal Land Bank of Houston, Texas, which payment shall be charged against the 20% interest of said W. R. Millan; all proceeds thereafter received from the sale of such crop shall be retained by the said Zimmerman until all of his advance money, including harvesting, baskets, cutting, icing and loading has been fully repaid without interest; after these items have been repaid, the remaining proceeds of such crop shall be divided equally between the said W. R. Millan and the said Ed Zimmerman, shar.e and share alike, but with the agreement that the said Millan shall receive 20% rentals, less the sum theretofore paid to the Federal Land Bank.

“It is agreed that if the said Millan fails to supervise and handle the growing, harvesting and loading of said crop, the said Zimmerman may complete the same, keep an account of his expenses therefor which shall be charged against the crop the same as advance money. It is further agreed that if for any reason the said Zimmerman fails or refuses to advance the necessary money, then and in that event the said Millan shall have the right to procure the money from other sources, charging the same against the crop as. in the first instance.

“The parties hereto further agree that they will turn back all lands covered by this lease as fast as the last crop therefrom is harvested.

“Witness our hands, each in duplicate, this the 30th day of August, A. D. 1938.

“W. R. Millan

“Ed Zimmerman”

Appellant does not complain of any part of the judgment except that awarding the appellee rental in the sum of $2,-263.31. It is contended that this part of the judgment is unsupported by. either pleadings or evidence. The contract was copied in full in appellee’s petition and contained the following provision: “* * * the remaining proceeds of such crop shall be divided equally between the said W. R. Millan and the said Ed Zimmerman, share and share alike, but with the agreement that the said Millan shall receive 20% rentals, * *

This provision of the contract, when taken in connection with the other allegations of the petition, to the effect that appellant and appellee were joint venturers on a spinach growing deal, that each had certain duties to perform, that appellee had fully complied with his duties, that the contract was fully performed, except a division of the profits, that an accounting had been demanded setting out what was due to appellee and a refusal '.by appellant to make such accounting, also alleging the amount of gross proceeds, amount of expenses, amount of advances, the net proceeds, amount of division due to appellee and that such joint venture had terminated, constituted sufficient pleadings to support the judgment for 20% rentals.

The evidence in addition to showing the provisions of the contract with reference to 20% rentals showed that in Zavala •County there existed a custom of allowing the owner of the land on which spinach was grown by these joint venture contracts a 20% rental for the use of the land, and that the 20% was figured on the net profit.

Appellant plead that the 20% rental provision was included in the contract by accident and mistake, but no issue was submitted to the jury on this theory, nor was such an issue requested. Appellant also plead that after the contract was executed appellee waived this provision. This issue was submitted to the jury and decided adversely to appellant.

We conclude that the item of $2,263.31, allowed by the judgment as rental, was supported by both the pleadings and the evidence. Accordingly, the judgment is affirmed.


author: LESLIE, Chief Justice.

text:
    CITY OF RANGER et al. v. GHOLSON et al.
    No. 2005.
    Court of Civil Appeals of Texas. Eastland.
    April 12, 1940.
    Rehearing Denied June 7, 1940.

      Earl Wyatt, of Amarillo, for appellants.
    Levy & Evans, of Fort Worth, for ap-pellees.
   LESLIE, Chief Justice.

The City of Ranger, a municipal corporation, instituted this suit against Howard R. Gholson, administrator, and Mrs. John M. Gholson, to recover on the obligations of paving certificates and .to foreclose such liens. From a judgment in favor of the defendants the plaintiff and an intervener appeal. The court filed findings of fact and conclusions of law.

The parties will be referred to as in .the trial court

The original petition was filed by the City of Ranger July 5, 1934, and it alleged fully the origin and nature of the obligations in suit and the fact that such" indebtedness was owned by the Real Estate Land Title & Trust Company, Trustee, “as owner and holder of said certificates * * * ”; that plaintiff had been “requested to exercise its charter powers to enforce the payment of the amount due thereon as aforesaid and suit has been instituted thereon * * * ”, including “reasonable attorney’s fees” stipulated for and alleged to be $250. The cause of action was presented strictly in behalf of the Trust Company and based solely on the obligations arising out of the paving assessments, etc.

The same date, July '5, the .Trust Company filed what it denominated a plea of intervention. , This pleading referred briefly to the plaintiff’s original petition, adopted the allegations of the same, and claimed the benefit of any recovery that might be had thereon. Its prayer was that “judgment be rendered in this cause in fayor of the City of Ranger * * * for the use and benefit of the intervener * * *

Thereafter, ’ on September 20, 1937, the Land Title Bank & Trust Company, Trustee (foi'merly the Real Estate Land Title and Trust Company), filed what it denominated an “Amended Plea in Intervention.” In the first division thereof it alleged, in substance, the same cause of action and the only one presented in the plaintiff’s original petition, namely, one based on the assessments, ordinance and paving certificates, etc. In addition to the re-statement of such original cause of • action, the Land Title Bank and Trust Company, Trustee, for the first time, alleged a cause of action based upon a mechanics lien contract executed by said John M. Gholson and said wife on March 8, 1928. By this contract the Gholsons agreed to pay W. E. Burke, or his assigns, the “sum as evidenced by said certificates” etc. The indebtedness evidenced by the paving certificates accrued as per ordinance as of July 17, 1928. The “obligations” covered by the mechanics lien contract, were alleged to be “cumulative of such assessments and certificates * * *.”

From July 5, 1934, when plaintiff’s original petition and the first plea in intervention by the Trust Company were filed, down to January 10, 1939, the cause remained upon the docket of the 91st District Court of Eastland County. On the last named date the judge of the 88th District Court, sitting for the 91st District Court, discovering the disqualification of the judge of the 91st District Court to try the case, transferred the cause to the docket of the 88th District Court. During the pendency of the cause in the 91st District Court, the judge of that court was related within the prohibitive degree to the defendants, thereby preventing his making any valid orders pertaining to the cause. During this period of time the pleas in intervention appear to have been filed. About March 2,' 1939, the defendants made a motion to strike both pleas in intervention on the ground that they had been filed without permission of a judge qualified to grant such permission for the above reasons. After the respective litigants filed pleadings defining such issue, the trial court (88th District Court) on March 3, 1939, struck out, for the reasons given, the pleas in intervention filed, respectively, July 5, 1934, and September 20, 1937. To this action of the court no exception was taken by the intervener, Land Title Bank and Trust Company, but it immediately requested tire court’s permission tó refile in that court the pleadings stricken out. The court granted such permission, and the pleading was re-filed as of March 3, 1939.

Certain issues presently to be considered must determine the intervener’s right on this pleading filed as of that date (March 3, 1939). In the meantime, the defendant, Mrs. John M. Gholson, presented her defenses alleging non-liability under the assessment and paving certificate, coverture, homestead, limitation of two and four years. Howard R. Gholson, individually and as administrator, answered by general demurrer, general denial, specially pleaded two and four years’ statutes of limitation and that cause had become extinguished when last filed, etc.

The trial court denied plaintiff and in-tervener any recovery on different grounds, as may be seen from the findings of fact and conclusions of law. These reasons we have carefully examined.

As to Mrs. John M. Gholson, the the testimony shows that long prior to the creation of the obligations in suit and at the date of the same, she was a married woman, the wife of John M. Gholson, and that she and her s’aid husband lived together for many years continuously until the death of John M. Gholson April 20, 1932, and occupied said property as their family homestead. It conclusively appears that she was not personally liable on the paving certificates sued upon because the amount of such certificates was not assessed against her but was assessed against John M. Gholson as the owner of the property.

Under her plea of coverture it is' equally certain that she had no personal liability on the written or mechanics lien contract of date March 8, 1928.

As for Howard R. Gholson in his individual capacity there was no personal liability against him on either the paving assessments and certificates, or the mechanics lien contract, for the reason that no liability was attempted to be assessed or fixed against him by the assessment and certificates, and he was not a party to the March 8th contract.

Since the original plea in intervention (July 5, 1934) and the amended plea (September 20, 1937) in lieu thereof were stricken out March 3, 1939, no exception taken to that ruling, and said amended plea re-filed on the same date, it follows that Howard R. Gholson’s individual plea of limitation of four years was then valid against any claim thereby asserted by the intervener and based on the mechanics lien contract of March 8, 1928. The same was true of Mrs. Gholson.

Stated somewhat differently and more fully: While the last installment, or coupon had been due since July 17, 1932, no claim was ever presented to the administrator until June 21, 1937, and it was rejected by him June 23, 1937. Said amended plea in intervention filed September 20, 1937, alleged for the first time a presentation and rejection of the claim by the administrator who, as stated, qualified as such immediately after the. death of his father, April 20, 1932. This amended plea, for the first time setting up the written contract (mechanics lien) of March 8, 1928, was stricken out on March 3, 1939. Whether the trial court properly or improperly struck out the amended plea in intervention, to which action no exception was taken, the intervener’s right of recovery on that contract must be tested by this pleading re-filed March 3, 1939. On that date the cause was in effect re-instituted by permission of the court on the voluntary request of the intervener. Certainly it was then barred by the plea of four years limitation being urged as a defense and that is true whether September 20, 1937 (date amended plea in intervention was filed), or March 3, 1939 (when stricken out and re-filed), be considered the date of the intervener’s institution of the present cause of action based on the mechanics lien contract.

Further, on March 3, 1939, after the cause was re-filed, the claim was, as against the administrator, extinguished because suit was not filed within 90 days after the rejection of the claim June 23, 1937. Art. .3522, R.S.1925.

The conclusion just announced is based upon our further conclusion that the subject matter of the suit was a claim for money against an estate within the contemplation of Art. 3509, R.S.1925; Anderson v. First Nat. Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768; and Jaye v. Wheat, Tex.Civ.App., 130 S.W.2d 1081, 14 Tex.Jur. p. 28, sec. 282, et seq; Art. 3522, supra.

As stated in the outset, the allegations of the original petition filed by the City of Ranger amply presented the cause of action in behalf of the so-called intervener. That pleading was never stricken out but remained as the basis for the adjudication of the rights of the respective litigants. The decree is sufficiently supported by such allegations and the court’s findings are sustained by the testimony.

While we have some doubt that the trial court properly struck out the amended plea in intervention on the grounds stated, nevertheless intervener’s rights being fully presented by the plaintiff’s pleadings, this action of the trial court becomes" immaterial, certainly not controlling in the disposition of this appeal. Hence we find it unnecessary to determine the true legal effect of this ruling of the trial court, especially since no exception was taken to the same and the pleading was re-filed. For the reasons assigned the judgment of the trial court is affirmed.

On Rehearing.

In response to the appellants’ motion for rehearing we write briefly on a suggested proposition found therein.

As to the appellants’ right to refile the suit March 3, 1939 and escape the pleas of limitation, we think that Art. 5539a has no application, because the court in, which the suit was filed each time had jurisdiction of the same. In other words, at no time was there a “want of jurisdiction of the Trial Court in which such action” was filed, as stated in the statute.

Article 5539b, Vernon’s Ann.Civ.St., does not benefit the appellants. The cause of action evidenced' by the paving assessment to which the plea of two years limitation applies, grows out of a “distinct or different transaction and occurrence” from that evidenced by the written contract or mechanics lien of date March 8, 1928 (set up in “amended plea in intervention” for the first time, September 20, 1937) to which cause of action four years limitation applies.

The motion for rehearing is overruled.