text:
    MOORE v. STATE.
    (No. 12380.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    W. D. Wilson, of Spur, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was adjudged to be a delinquent child and was committed to the custody of the Girls’ Training School at Gainesville until the 1st day of January, 1930, or until further orders of the court.

The sufficiency of the evidence is questioned. It is charged in the complaint filed against appellant that “Reta Moore does habitually wander about the street in the nighttime without being on any business or occupation, and that the said Reta Moore is incorrigible.”

The last clause charging appellant with being incorrigible has been held not sufficiently specific to sustain a conviction. Meggs v. State, 101 Tex. Cr. R. 415, 270 S. W. 262. Only the evidence which tends to sustain the first allegation will be considered.

Dad Robertson testified: “I have not seen her on the streets at night; she generally left before night.”

Dr. Cooper:- “She was in my employ as a house servant about three weeks. I have seen her on the streets of Girard, Texas, with men and with women. She came in at various times of the night while working for me. I would hear an automobile stop and honk and she would leave the house and often came back late at night.”

G. C. Dial: “I have seen her on the streets at Girard at night. I have seen her go off with boys. I have not seen her on the streets late at night, for I close my place of business about Nine or Nine-thirty o’clock.”

This is the state’s case. Is it sufficient to show that she “habitually [wandered] about the streets * * * in the nighttime, without being on any business or occupation”? The word “habitual” means “formed or acquired by or resulting from habit; frequent use or custom.” Hilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113; Meggs v. State, 101 Tex. Cr. R. 415, 276 S. W. 263. Single or occasional acts do not meet the requirment of the statute. Boswell v. State, 48 Tex. Cr. R. 47, 85 S. W. 1076; O’Kane v. O’Kane, 103 Ark. 382, 147 S. W. 73, 40 L. R. A. (N. S.) 655. We find nothing in the record to show that appellant habitually wandered about the streets without being on any business. It is shown that she went out auto riding at night and she had been seen on the streets at night, but in all these instances she may have been on business or upon some perfectly legitimate mission. For a girl under 18 years of age to merely be upon the streets at night or go auto riding at night does not violate this statute.

It is charged in the brief that appellant was arrested and tried without giving any written notice to her parent or guardian, without the benefit of counsel or opportunity to employ counsel, and without a jury, and was immediately ordered committed to the Girls’ Training School, and that she was actually committed there the day after the trial and is there at the present time. We find no bill of exception in the record with the certificate of the trial judge that the above-alleged facts are true. We therefore do not pass on the point, but content ourselves with calling the trial judge’s attention to the decisions of this court holding that a trial without notice to the parents or guardians of the accused where they are known renders the judgment of conviction void. Ex parte Tomlin, 107 Tex. Cr. R. 643, 298 S. W. 902; Ex parte Webb, 109 Tex. Cr. R. 192, 3 S.W.(2d) 810.

Because we think the evidence is insufficient to sustain the allegations of the complaint, the judgment'is reversed and cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by- the judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: HAWKINS, J. LATTIMORE, J.

license: Public Domain

text:
    WALLACE v. STATE.
    (No. 12237.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 20, 1929.
    J. S. Kendall, of Munday, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for rape; punishment being 50 years in the penitentiary.

We'find no necessity for setting out the evidence in detail. The facts make a complete case of guilt. Appellant’s confession left little, if anything, to he -supplemented by the other testimony.

There are no bills of exception in the record. In his motion for new trial, appellant complains, among other things, because his application for continuance was not granted. The application is before us by supplemental transcript. It has many times been held that the refusal of a continuance will not be reviewed in the absence of a bill of exception bringing the matter forward. For collation of authorities, see section 304, Branch’s Ann. Tex. P. C. Among later cases upon the same subject will be found Martin v. State, 92 Tex. Cr. R. 124, 242 S. W. 234; Miller v. State, 93 Tex. Cr. R. 163, 246 S. W. 87; Turner v. State, 109 Tex. Cr. R. 301, 4 S.W.(2d) 58.

Another ground of the motion for new trial avers that error was committed by the trial court in permitting appellant’s wife to testify to incriminating facts against him. We find no bill bringing any such complaint forward. Some other questions are suggested in. appellant’s brief, but they likewise ate not properly before us.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In order that the accused may plead to the indictment, and his identity be fixed, it is provided in articles 491-493 of our C. C. P. that, after the lapse of two entire days after service of a copy of the indictment, or when same is waived, the accused shall be arraigned. Nothing in our law undertakes to say when such arraignment shall take place, save that it cannot legally take place until two entire days have passed after service of copy of the indictment, as fixed by the terms of article 493, supra.

Fro-m the record in this case, we learn that the arraignment was had on August 17th, which was two entire days after service of a copy of the indictment upon appellant. In argument it is urged that the trial court appointed an attorney, this being a capital ease, before arraignment, and it is insisted that this violated tlie provisions of article 494, C. C. P., wherein it is provided that when arraigned, if it appear that accused has ne counsel, and is too poor to employ one, the court shall appoint one. Such appointment is an act of grace on the part of the state, and, it being a matter of human experience that the longer the time allowed to prepare a case for trial, the better, it appears not a matter for complaint but commendation, that counsel was appointed before the arraignment, and was! thus given longer time to get ready to properly represent the accused.

We are not able to accept the views of learned counsel for appellant that the court below has no power to make such appointment before the day of arraignment, tinder many decisions the time of arraignment is held to be npt so fixed by statute as that failure to arraign at once after the two days’ service of a copy of the indictment would be reversible error.

W© again say that the objections to the refusal of a continuance, to the character of cross-examination of appellant’s wife, and to complaints of procedure in other matters, cannot be reviewed by us in the absence of bills of exception. There are no bills of exception in this record.

The motion for rehearing will be overruled.


author: McOLENDON, C. J.

text:
    CITIZENS’ NAT. BANK OF LUBBOCK v. FIRST NAT. BANK OF BRONTE.
    (No. 7323.)
    Court of Civil Appeals of Texas. Austin.
    Jan. 23, 1929.
    Rehearing Denied March 13, 1929.
    Locthart & Garrard and F. D. Brown, all of Lubboet, for plaintiff in error.
    Hamner & Ponder, of Sweetwater, for defendant in error.
   McOLENDON, C. J.

Writ of error appeal by the Lubboet bant from a default judgment against it as garnishee in favor of the Bronte bant. The garnishment was ancillary to a suit by the Bronte bant against R. 5. and Ellen S. Williams. The writ was served March 23, 1928, and returnable June 4, 1928. April 4, 1928, the garnishee filed an answer, which disclosed an indebtedness to R. S. Williams of $3.26, and answered in the negative- all other questions propounded in the writ. The garnishee made no further appearance in the case, June- 7, 1928, the Lubboet bank filed a pleading containing exceptions to this answer and a prayer that it be stricken out and judgment rendered against the garnishee for the full amount of the judgment in the principal case. These exceptions urged that the answer did not show whether the garnishee was indebted to or held effects of the defendants in the main suit (1) on the return day of the writ; or (2) between the time the writ was served and the first day of the term of court to which the writ was returnable.

The trial court sustained these exceptions, struck out the garnishee’s answer, and rendered judgment against it for the full amount of the judgment in the principal case ($477.-32). A statement of facts 'was filed, signed by the judge alone, and reciting that it was presented by the Bronte bant, and that the garnishee presented no statement of facts. From this statement it appears that no evidence was introduced except the judgment in the main case, the record in the garnishment proceeding, and testimony to the effect that the judgment in the main ease was unsatisfied.

The Lubbock bank contends that the judgment should be sustained on the following grounds:

1. Because the answer was prematurely filed, in that the writ commanded the garnishee to appear on June 4, 1928, “then and there to answer upon oath,” etc., and was therefore defective, in that it did not show the relation of the garnishee to the main defendants with reference to indebtedness or effects on that date. This contention is without merit. R. g. art. 4087, expressly authorizes" the garnishee to answer “on or before appearance day of the term of the court to which such writ is returnable.”

2. Because all indebtedness and effects of the main defendants were impounded from and after service of the writ, and the answer was defective, in that it did not show the garnishee’s relation to the main defendants between the dates when the writ was served and the answer filed. The answer specifically and fully covered each question propounded in the writ, and the writ was in the exact form, as to the questions' propounded, provided in R. S. art. 4081. R. S. art. 4085, requires only in this regard that the garnishee “shall make true answers to the several matters inquired of in the writ of garnishment.” Where the answer complies with the statute and the commands of the writ, it is manifestly sufficient.

Appellee cites in support of the above contentions Gallagher v. Pugh (Tex. Civ. App.) 66 S. W. 118. In that case it was held that an answer filed before the date the writ was made returnable was premature, and the garnishee could be required to make further answer covering the time between filing the answer and return date. It should be borne in mind, however, that that decision was rendered prior to the 1921 amendment to the garnishment statutes (Acts of 1921, c. 105). That amendment for the first time introduced into the statutes the requirement that the garnishee’s answer should be filed on or before appearance day. We are not to be understood as holding that a plaintiff may not, in a proper case and upon a proper proceeding for that purpose, require further disclosure by the garnishee. We do hold, however, that, where the disclosure is in full and literal compliance with the statutes and the writ, the answer is not subject to exceptions and cannot lawfully be stricken out as being either insufficient or evasive.

3. It is contended that, since no exception was taken to the trial court’s order sustaining the exceptions, the correctness of that ruling cannot be urged on appeal.

The judgment shows upon its face that it was rendered, not upon trial, but upon an insufficient answer. This judgment is attacked by proper assignments of error. The answer of the garnishee appearing in every way to fully comply with legal requirements, the trial court’s error in striking it out and rendering judgment against the garnishee in effect by default was clearly an error' of law appearing upon the face of the record.

Aside from this, however, we overrule this contention upon the following grounds:

The application for the writ showed that garnishee was “a banking corporation organized under the banking laws of the United States with its domicile and principal place of business at Lubbock, Lubbock County, Texas.” Under R. S. art. 4096, where the garnishee other than “a foreign corporation, not incorporated under the laws of this state,” is not a resident of the county in which the suit is filed, any contest of the answer must be transferred to and tried in the county of garnishee’s residence.

We are clear in the view that a national banking corporation, domiciled in Texas, is not a foreign corporation within the meaning of this article, and that the provisions thereof for transfer to the county of its domicile apply. See Texas & P. R. Co. v. Weatherby, 41 Tex. Civ. App. 409, 92 S. W. 58; 14a C. J. p. 1214, § 3924, and authorities cited under note 19.

While there are expressions in some of the opinions of the Courts of Civil Appeals to the effect that, where a nonresident garnishee files an answer, it enters its appearance for all purposes, this question was set at rest to the contrary by the Supreme Court in the case of American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990. That case, it is true, arose prior to the above 1921 amendment, but the amendment worked no change in article 4096 with reference to trial of a contest of garnishee’s answer, in so far as nonresident garnishees other than foreign corporations were concerned. Under the prior act the nonresident garnishee was not even required to file an answer. Under the 1921 amendment an answer was required of all garnishees. Under the prior act, as well as under the 1921 amendment, the voluntary appearance of the garnishee by answer put the nonresident garnishee in court for the purpose only of testing the legal sufficiency of his answer ; but, if the answer was sufficient, he was not required to take further notice of the proceeding.

The trial court’s judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

On Motion for Rehearing.

In view of the rehearing argument of defendant in error, we deem it proper to make a further statement in regard to our holding in this case. It is urgently insisted in the argument that we erred in holding that' the 1921 amendment (R. S. art. 4087) worked a change in the garnishment statutes as regards the stipulation therein that the garnishee answer on or "before appeaz-ance day. It is insisted that this holding is in conflict with articles 4079 and 4080; the former requiring that the writ command “the garnishee to appear before the court out of which the same is issued, on the first day of the ensuing term thereof, to answer upon oath,” etc.; and the latter prescribing the form of the writ which commands the garnishee to appear “at the next term” of the court “then and there to answer upon oath,” etc.

We see no conflict between our holding and these provisions of articles 4079 and 4080. The latter merely fix the time limit in which the garnishee is given to answer. See in this connection, R. S. art. 2022. As pointed out in our original opinion, there was no other provision in the garnishment statutes prior to 1921 which prescribed the time in which answer might be filed. The cases which support the contention of defendant in error are all based upon the prior statutes. That amendment in requiring the garnishee to answer on or before .appearance day is clear and unambiguous, and, unless it be construed as meaningless, it authorizes exactly what it purports to authorize; that is, that the answer may be filed before as well as on appearance day. We can give it no other construction. We cannot presume that the Legislature inserted it without purpose, which alone, so far as we can see, was to authorize answer before appearance day as a full compliance with the garnishment statutes.

Defendant in error for the first time calls attention to the case of Challenge Co. v. Sartin (Tex. Civ. App.) 260 S. W. 313, by the Dallas court. The facts of this case arose after the 1921 amendment. It is to be noted, however, that the court did not advert to the amendment, and also that a construction of the amendment was in no sense material to a decision. The issue there was whether the status of a fund held by a receiver, as regards its being gamishable, was fixed as of the date of service of the writ. The court held that it was not. The answer in that case was filed after the order of distribution, and the court pointed out that this status was not changed between the date of the order and appearance day in the garnishment suit. Manifestly, the judgment in that case would have been the same under our construction of the 1921 amendment.

The only other opinion we have been able to find which might in any sense have bearing upon this question is that of the Ft. Worth Court of Civil Appeals in Oklahoma Petroleum Co. v. Nolan, 253 S. W. 650, in which writ of error was refused. Whether the facts in that case arose prior to the 1921 amendment is not disclosed, nor is the amendment referred to. Aside from this, it is to be noted that the answer only covered the time the writ was served and'did not deny the existence of indebtedness, etc., at the time the answer was filed. We do not deem the decision in either of these cases in con.flict with our holding.

The holding in Lamb-McAshan Co. v. Ellis (Tex. Com. App.) 270 S. W. 547, and other cases of like tenor, to the effect that the 1921 amendment required all garnishees, whether resident or nonresident, to answer, was followed in our original opinion. We also held that under the 1921 amendment, as under the prior law, a nonresident garnishee, by voluntarily answering, submitted to the court’s jurisdiction for the purpose of testing the sufficiency of his answer.

If this latter holding were extended so as to require the nonresident garnishee to take notice of an order striking out an answer that fully met the demands' of the statutes, the benefits of the requirement that a contest of the answer be tried in the county of his residence and upon notice would he materially impaired. The manifest purpose of the 1921 amendment was to require disclosure by the nonresident garnishee without the necessity of issuing a commission, but at the same time to preserve to him the benefits of a local trial in case of contest. In making this change in procedure, we can readily see the importance of permitting the answer to be filed before appearance day. It might require a nonresident garnishee to employ local counsel, or subject him to other expense or inconvenience, if he were required to answer only on that day.

We adhere to our original holding and overrule the motion.

Overruled.


author: PLEASANTS, O. J.

text:
    EMPLOYERS’ LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, v. FLINT et al.
    (No. 9238.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1929.
    Rehearing Denied March 7, 1929.
    Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
    W. J. Howard and E. T. Chew, both of Houston, for appellees.
   PLEASANTS, O. J.

This suit was brought by appellant to set aside an award of the Industrial Accident Board in favor of appel-lees Mrs. Josephine Flint and J. W. Howard against appellant.

By their answer, appellees alleged their cause of action upon which the award was made, and asked judgment against the appellant for a sum in excess of that for which the judgment of the trial court was rendered.

The substance of appellees’ cause of action is sufficiently stated in appellant’s brief as follows:

“That J.- T. Flint was the husband of ap-pellee, Mrs. Josephine Flint, and that he received an accidental injury in the course of his employment on or about May 31,1927, and died on or about June 8, 1927, as a result of said accidental injury.
“As to the kind and character of accidental injury sustained, it was alleged that on May 31, 1927, the deceased Flint was engaged in dipping material or automobile parts or the rag with which he was wiping same in a certain vat or can which contained a certain character of liquid; that the said material or parts or rags were by the said J. T. Flint being thrust into such liquid and hastily withdrawn and the material piled in a suitable place, and that during this process the liquid either splashed on his foot or dripped thereon from the material and burned, bruised and blistered his foot, thus removing the skin from a portion of the foot, and that while so engaged in said work, his foot became infected and that as a result of such injury and infection, he died on June 8, 1927.
“It was further alleged .that all preliminary prerequisites required by the 'Workmen’s Compensation Act had been complied with in order to give the District Court of Hárris County, Texas, jurisdiction.”

Appellant answered appellees’ suit by a general demurrer and general denial. The trial in the court below with a jury resulted in a verdict and judgment in favor of appel-lees.

In answer to issues submitted by the court, the jury found that “J. T. Flint had -an accident in the course of his • employment with the Ford Motor Company, in the place of employment, on May 31, 1927,” that, as a proximate result of such accident, he sustained an injury to his right foot, and that such injury wás the proximate cause of his death. The jury further found that no manifest hardship or injustice would result to Mrs. Flint if her claim for a lump sum compensation should not be allowed.

By agreement in evidence, it was shown that the Ford Motor Company carried a workmen’s compensation policy with the appellant ; that notice of injury was duly and properly given; claim for compensation made; award made by the Industrial Accident Board; timely notice of appeal and timely filing of suit.

The evidence shows that appellees are entitled to the compensation due under the policy for the death of J. T. Flint; such compensation being shown by the evidence to be the sums adjudged to appellees, respectively.

Appellant assails the judgment on the ground that the evidence is insufficient to sustain the finding that the death of J. T. Flint was the result of an accidental injury suffered by him in the course of his employment. This contention is based upon the theory that, in order to hold appellant liable on its contract of insurance, it must be shown by the evidence that the germs or bacteria which caused the death of J. T. Flint entered the wound on his foot while he was engaged in the course of his employment.

The authorities do not sustain this view of the law applicable to cases in which liability is claimed for accidental death resulting from blood poisoning consequent upon a traumatic injury. If appellant’s contention is sound, death from blood poisoning could never be shown to be the result of an accidental injury sustained in the course of employment; since the germ which produces the poisoning of the blood cannot be seen, the exact time and place of its entry into the wound can never be shown.

The following correct summary of the evidence in this case is copied from appellee’s brief:

“J. T. Flint, the husband of appellee, Mrs. Josephine Flint, died on the 8th day of June, 1927. The cause of his death was blood poisoning or an infection of the blood caused by a germ entering his system through a cut or abrasion on his foot. This cut or abrasion he received while in the employ of Ford Motor Company of Hoiiston, Texas, on May 31, 1927. Said Flint, at the time of his injury, lived at Eureka, about six or seven miles from the Court House in Houston, Texas, and it is about two or three miles from the Court House to the Ford Motor Plant. Flint left for his work on the morning of May 31, 1927, at 5:00 o’clock A. M. and his working hours were from 6:00 A. M. until 2:30 P. M. Flint was employed in the enamel department of the Ford Plant and the nature of his duties, as testified by his foreman, Mr. Dial, was to wipe certain parts of the cars with the solution known as M-167, being a special solution between coal oil and gasoline, a towel being dipped in this solution and the material being then wiped off with it. The foreman further testified that on the 31st day of May, 1927, said J. T. Flint was working in the enamel department of the Ford Motor Company. He further stated that it was possible for some of the solution to drop on his shoes; that there was some on- the floor, but not a great deal; that they dipped the towel in this solution M-167 and would then take it out; that they were supposed to wring it out, but sometimes they did not, that it would drip ■on the shoes and then on the floor. The foreman further testified that they had a rule to inspect the shoes twice a week and if they found any of the men with bad shoes to send them home and get a good'pair of shoes. He testified further that if the men had on good shoes the solution M-167 would not likely get their feet wet. He further stated that a man can get burned with M-167 easy enough. There is no doubt but what at times at least this solution would burn the flesh. Not only did Mr. Dial, the foreman, so state, but the witness R. E. Summers so stated. Dr. Cruse, a witness for the appellant, testified ‘most any kind of a solution, kerosene or gasoline, where you get it in your shoe and cut the air off, might produce an irritation ⅜ * * most anything will burn if you exclude the air from it.’
“Flint’s foot was all right when he went to work on the morning of May 31st. The witness, E. F. Turney, so testified, and so did Mrs. Flint. When he went home that afternoon at 3:30 his foot was swollen and red and blistered between the toes and on the ball of the foot. Mrs. Flint testified that when hef husband got home about 3:30' on May 31st, the day of his injury, his shoes were wet. He complained of his foot at that time and said that it was paining him right smart, and he told her he got his foot injured by the stuff dropping on his shoe and his shoe was wet and the stuff dropped on his foot off the material ; that he first began to feel the effects at about 11:00 or noon, and he pulled off his shoe and his foot was red and inflamed at the time. The witness Turney testified, that he saw Flint about 4:00 P. M. on the day he was injured and that at that time Flint told him he got his foot injured by the solution or paint, or whatever he was working with, dropping on it.”

We agree with appellees that the evidence amply sustains the findings of the jury that the death of J. T. Flint was the proximate result of the accidental burning of his foot while engaged in the performance of his work at the Ford Motor Company plant. The undisputed evidence shows that the chemical mixture Flint was using in his work, if it were dropped upon and penetrated the leather of his shoe, would have caused the burns and blisters on his foot of which he complained, and which were observed by his wife when he took off his shoe after his return from work, and further shows that these burns and blisters upon his foot opened the way for the entry into his blood of the germs or bacteria which' so poisoned the blood as to cause his death. The entry of these germs being a natural probable sequence of the injury to his foot, such accidental injury was the proximate cause of his death. The evidence further shows that there were no burns or blisters on his foot when he left home in the morning to go to his work.

From the undisputed' facts shown by the evidence above set out, we think the only reasonable inference that the jury could have drawn was that the burns and blisters found upon Flint’s foot when he returned home were caused by his careless dropping of the inflammatory chemical upon his shoes while engaged in his work, and its penetration through the shoe to his foot. It is well' settled that an injury thus caused is accidental. Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517.

It cannot be reasonably inferred that, he intended to spill or drop the chemical upon his foot, or that he realized or expected that he had spilled or dropped enough of the liquid to penetrate his shoe and burn and blister his foot, and the fact that the burning and blistering did not occur immediately after the liquid was dropped on the foot in no way affected the accidental character of the injury sustained thereby. If Flint had been shoveling fire from a furnace and had dropped hot coals upon his foot, the accidental character of the injury would not have been more clearly shown.

The facts of this case negative the contention of appellant that the blood poisoning which caused Flint’s death was an occupational disease, and not the result of accidental injury. The cases of Ætna Life Insurance Co. v. Graham (Tex. Com. App.) 284 S. W. 931, Buchanan v. Maryland Casualty Co., 116 Tex. 201, 288 S. W. 116, and Jerner v. Imperial Furniture Co., 200 Mich. 265, 166 N. W. 943, are not in point. In each of the two cases first cited, the death of the insured was caused by a disease which was gradually contracted because of the conditions surrounding the place in which the deceased performed his work, and could not have been held an accidental death. The Jerner Ease, supra, is more nearly in point, but does not present a case of accidental injury. The sore through which the germs entered the' blood of the deceased in that case appears to have been gradually produced by the continued absorption of chemicals used by the deceased in his work. Such sore might be more properly regarded as an occupational disease than an accidental injury. The facts of this case do not show a diseased condition of Flint’s foot caused gradually by the conditions under which he worked, nor by the continued gradual absorption of the chemical used by him in his work, but, on the contrary, show that the abrasion on his foot through which the fatal germ entered his blood was caused by the one accidental application of the inflammatory liquid. These conclusions are fully sustained by the case of Texas Employers’ Ins. Ass’n v. Drews (Tex. Civ. App.) 297 S. W. 633.

Appellant’s further objection to the judgment on the ground that the trial court erred in allowing Mrs. Flint and the witness Tur-ney to testify to statements made by the deceased when he reached home on the day he received the injury to his foot, as to when and how the injury occurred, cannot be sustained. These statements of the deceased have been heretofore set out in substance in our fact findings. The record discloses the following facts as to the time and circumstances under which the statements were made to witnesses:

Flint got off from- work at 2:36 p. m. He returned home at 3:30 p. m. He had to travel about nine miles through city traffic. There is nothing to show that he did not come straight home from work. Considering the distance and allowing him time to change his clothes, he had just about time enough to do so. He made the statement to his wife as soon as he got home. His foot was paining him at the time, and it was sore and swollen. He made the same statement to the witness Turney, a neighbor who came to his home only about thirty minutes later. There is nothing in the circumstances of this case to show that the statements were the result of premeditation or deliberate design. They sprang forth as the natural result of his pain and injury in telling his wife and his'neighbor how his injury occurred. There is nothing to show that he hoped to. gain anything by the statements.

We do not think the trial judge abused his discretion in holding the statements admissible in evidence under the res geste rule. We think the circumstances under which the statements objected -to were made show that they were made without premeditation, were voluntary and spontaneous, and were' made at a time near enough to the occurrence to negative the idea of any deliberate design' to misstate the facts There is nothing in the evidence to cast any suspicion or raise any doubt of the truth of the statements. As we interpret the decisions of our Supreme Court, we cannot hold that the court erred in admitting the statements in evidence. Pilkinton v. Gulf, C. & S. F. Ry. Co., 76 Tex. 226, 7 S. W. 865; City of Galveston v. Barbour, 62 Tex. 172, 56 Am. Rep. 519; Dallas Hotel Co. v. Fox (Tex. Civ. App.) 196 S. W. 647.

What we have said disposes of all the material questions presented by appellant’s brief. All of the propositions presented in the brief have been considered, and none of them should, in our opinion, be sustained. The judgment is therefore ordered affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    WILLIAMS v. CITY OF GALVESTON.
    (No. 9256.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 27, 1929.
    Rehearing Denied March 21, 1929.
    See, also, 297 S. W. 1101.
    Thos. H. Dent, of Galveston, for plaintiff in error.
    Bryan F. Williams, of Galveston, for defendant in error.
   PLEASANTS, C. J.

This suit was brought by plaintiff in error to recover of defendant in error the sum of §30,000 damages for personal injuries alleged to have been caused by the negligence of the defendant.

The petition alleges, in substance, that plaintiff at the time of his injury was in the employment of the defendant city as a helper upon a garbage truck operated by the city, and that it was his duty to help collect and place garbage upon the truck to be carried away, and in the performance of his work it was necessary for him to hold to the sides of the bed of the truck; that on the night of the 15th of May, 1925, he was at work on the truck, and while he was holding to a side of the truck bed, the latter gave way, and he was caused to fall and suffer the injuries of which he complained.

The ground of negligence alleged was the failure of the defendant to use reasonable care to provide plaintiff a safe place in which to perform his work, in that the defendant failed to use ordinary care to maintain the truck, especially the sides thereof, in a reasonably safe condition by failing to provide sufficient bolts- and pins to securely fasten the sides.

“That at the time and place aforesaid, solely by reason of carelessness and negligence of said defendant, in failing to furnish said plaintiff with a safe place to do his work as an assistant on the garbage truck aforesaid, and the negligence of said defendant in failing to insert the bolts and loins and to see to the bed of said truck being securely fastened and protected to see that the said truck was safe and secure, while the plaintiff was at work on said garbage truck and while holding to the side of said bed of said truck while engaged at his work as aforesaid, the bed of said truck gave way, and it fell over by reason of not being properly bolted, pinned and securely held together and threw the plaintiff out over the side of the said truck1 to the pavement with great force and violence causing the plaintiff serious and permanent wounds.”

The evidence shows that the truck on which plaintiff worked had a box-shaped receptacle for trash and garbage attached to the floor of the truck behind the driver’s seat. This box-shaped portion of the body of the truck is firmly fastened to the floor of the truck, and is solidly constructed to a height of about three feet, its sides and ends being firmly nailed or bolted together. On each of these solidly fastened sides there is a board about 10 inches wide which is attached to the solid portion of the structure by hinges, and when the load in the truck increases so as to require the sides to be made higher these hinged boards are raised and held in place by bolts so attached to the end of the truck as to extend through a hole in the end of the hinged side board, the side boards being fastened on to the bolts by an iron pin placed through a hole in the end of the bolt. There are two of the bolts at each end of these loose side boards.

From the undisputed evidence of both plaintiff and his witness, Herbert Sanches, who was at work with plaintiff on the night of the accident, there were only two pins- or bolts available on the truck to hold up the flap boards, one pin being inserted at the front end on each side. There had only been the two pins in use on the truck for quite a long while before plaintiff’s injury.

The truck had a crew of three men, a white driver and plaintiff and his witness, Sanches, whose duty it was to collect the garbage and place it upon the truck. In starting to collect a load the flap boards or hinged sides would be left down and both of the men would work from the ground and throw the garbage into the truck bed. When the load had been built up to. about level with the solid sides of the bed, the hinged side boards would then be raised and fastened and one of the men would get up into the truck bed on top of the load for the purpose of receiving the receptacles as they were passed up from the ground by the other.

Shortly before plaintiff’s fall the load had been built up sufficiently to require that the hinged side boards be raised and fastened, and that was done with the use of the two pins available, one pin being inserted in the front end on each side. At that time the load of garbage was about even all over the truck. Plaintiff got up into the truck bed, and was standing up in it about midway holding on to the side of the bed while the truck was in motion, and when some obstruction in the street was run over he fell from the truck and was injured. With reference to the cause of his fall he testified: “He (the driver) was running pretty fast and the street was torn up and I heard something go ‘wham’ and I didn’t know anything else. The truck hit something in the street. At that time I was standing about middle ways of that truck holding on to the side of the bed. That was necessary in loading and unloading the garbage to stand up in the truck this v?ay with your legs spraddled out and catching hold of the sides of the bed with your hands. * * * qijjg si,je 0-£ truck I was on fell. I don’t know what part fell. I know the side fell. I never seen the truck after I fell. I don’t know any more about it. I don’t know nothing about which way I went or what I' done. I just know I fell and couldn’t tell what happened. I just hit the ground.”

The only other evidence having any bearing on the cause of the plaintiff’s fall came from Sanches, who testified: “We put the boards up before we left Twenty-second and Strand and about Twenty-second street was being paved and it was all torn up and as we went down there we must have jolted the bolts out and threw John out of the wagon. We didn’t miss John until we got to Twenty-third and Postofiice. Then we saw he was gone and we goes back down Market Street walking and looking for him; we were looking for John and the first time we didn’t see him and when we got back to the truck, we noticed that the trash had been spilling out of it, and we followed the trash back where it had been spilled out and we seen something laying there by the side of the curb; there was a shadow and we couldn’t see him very good and we went over there and looked in the dark and there lay John over there in the ditch. We found John laying there unconscious and we then rushed him to the hospital. » ⅜ ⅜ ^ey were fixing Twenty-second and Strand that night; tearing it all up and fixing the track or taking up something there, they were putting down more bricks or something, we could tell by the jostling of the truck by the tracks, running over the tracks, you know, jolting. The jolting knocked the pin out you see and that is why John fell.”

The plaintiff also testified: “I never saw one of these pins jump or jolt out of the bed of the truck 'when it had a load on it. I never saw one jolt out with such a load as we had on that night. I have seen the side boards down but I never saw a pin jolt out with a load as big as the one we had that night. I never seen a pin on ’ those trucks jolt out when they were empty, but I have seen them coming empty with one side up and the other down, I didn’t see the pin jolt out.”

Sanches was not questioned as to whether he had ever known of a pin jolting out, nor was he, though his testimony apparently put him in a position to know, interrogated as to the condition of the flap boards on the truck bed, that is, whether they were found to be fastened up or hanging down after plaintiff’s fall.

The court, among others, submitted to the jury the following issue: “Was or was not, the plaintiff John Williams caused to fall from the truck by reason of the collapse of the side of the bed of said truck to which he was holding?” To which the jury answered: “No.”

In response to other issues submitted the jury further found: (1) That the defendant city was guilty of negligence in failing to equip the side of the truck with sufficient bolts or pins to hold it securely in place; (2) that such negligence was not the proximate cause of the injuries sustained by plaintiff; and (S) that plaintiff was not- guilty of contributory negligence in bolding to tbe side of tbe truck while it was in motion, knowing of tbe condition of tbe fastening.

Tbe appellant presents six assignments and propositions upon which be insists the judgment should be reversed.

Tbe first assignment complains of tbe refusal of tbe court to give tbe jury ,an instruction requested by plaintiff upon tbe issue of contributory negligence, and tbe duty of the defendant to furnish and maintain a safe place for tbe performance of plaintiff’s work.

If these were proper charges upon tbe pleadings and evidence, their refusal was manifestly harmless in view of tbe findings of tbe jury that plaintiff was not guilty of contributory negligence, and that tbe defendant was negligent in failing to equip tbe sides of tbe truck with sufficient bolts and pins to bold them securely in place.

Tbe second assignment complains of fhe refusal of tbe court to instruct the jury that assumed risk was not a defense to plaintiff’s suit if tbe jury should find that the injury was caused by tbe pins, which held the sides in place, having been jolted out when tbe truck was driven over an obstruction in the street.

The issue of assumed risk, if raised by the evidence, was not submitted to tbe jury, and it therefore follows that refusal of tbe plaintiff’s requested charge upon this issue was not error. The jury having found that plaintiff’s injury was not caused by tbe collapse of tbe side of tbe truck to which be was bolding, tbe question of assumed risk by tbe plaintiff in holding to the side of tbe truck is eliminated from tbe case and tbe refusal of tbe court to charge upon that issue cannot be complained of by appellant.

Tbe third assignment complains of the failure of the trial judge to submit to tbe jury tbe question: “Was tbe falling of tbe truck bed caused by a pin jolting out of its socket, after tbe said truck bad been driven over an obstruction in the street?’ As before set out, tbe court submitted to tbe jury tbe question of whether tbe plaintiff “was caused to fall from tbe truck by reason of tbe collapse of the sides of tbe bed of said truck to which be was bolding.” Tbe jury having answered tbe question submitted in tbe negative, it is wholly immaterial what caused the¿ falling and collapse of tbe sides of tbe truck to which plaintiff was bolding, and tbe error, if any, in refusing tbe requested charge is made harmless by tbe verdict.

Tbe fourth and fifth assignments complain of tbe refusal of tbe court to submit questions which only affect tbe issue of appel-lee’s negligence as alleged in tbe petition, and tbe sixth assignment complains of tbe refusal of tbe court to submit a question which could only affect tbe issue of contributory negligence on tbe part of plaintiff. Since tbe jury found in appellant’s favor on both of these issues, tbe alleged errors complained of by these assignments were clearly harmless to appellant.

The only question which could arise upon tbe record before us is whether the evidence is sufficient to sustain tbe verdict of tbe jury that plaintiff’s injury was not caused by the collapse of tbe sides of tbe truck, and this question is not raised by any assignment or proposition presented by appellant.

If tbe question was properly raised by the brief, we would not feel justified in bolding upon tbe evidence before set out that the verdict of tbe jury is so against tbe overwhelming weight and preponderance of tbe evidence as to be clearly wrong, and therefore would not be authorized to reverse tbe judgment on this ground

It follows from what we have said that tbe judgment must be affirmed, and it has been so ordered.

Affirmed.


author: BLAIR, J.

text:
    FERGUSON et al. v. ACADEMY CONSOL. INDEPENDENT SCHOOL DIST.

    (No. 7291.)
    Court of Civil Appeals of Texas. Austin.
    Jan. 16, 1929.
    Rehearing Denied Jan. 30, 1929.

      A. L. Curtis and Tyler & Hubbard, all of Belton, for appellants.
    Bowmer & Brewster, of Temple, and J. W. Thomas, of Belton, for appellee.

      Writ of error refused.

   BLAIR, J.

Appellee, Academy Consolidated Independent School District, sued appellants, Mrs. Miriam A. Eerguson and her husband, James E. Ferguson, for delinquent taxes, interest, and penalties, accrued as school taxes for the year 1926, against lands owned by them in the district. A trial to a jury on special issues resulted in a verdict and judgment for appellee; hence this appeal, predicated upon the following three propositions:

(1)That certain proffered testimony, which was excluded, of the value at which appellants’ lands were assessed by the state and county for the same year, was admissible and pertinent upon the issue of whether said lands had been assessed by the school district “for an amount in excess of their true and fair market value.”
(2) That appellants’ defense, raised by the pleadings and evidence, that the “lands were so remote and inaccessible with reference to the location of the schoolhouses as not to be benefited” by the schools or taxes, should have been submitted to the jury as requested.
(3) That “after the board of appraisers had fixed the values of the lands * * ⅜ and assessed them for' taxes * * * the assessor .and collector * ⅜ * arbitrarily and without authority of law increased said valuation by ten per cent, as a penalty for failure to render said property for taxation for the year 1926.”

The court correctly excluded the testimony relating to the value at which the state and county assessed the lands for the same year. Neither of appellants’ propositions complains that their lands were assessed by appellee district in excess of their true and fair market value, and therefore the court’s action excluding testimony relating to that issue is not material here.

But, aside from that reason, the testimony was not admissible because immaterial and irrelevant and sheds no light upon the issue of what was “the true and fair market value” of the lands at which the school district could assess them for taxation, which was the material issue in the case. The state and county and appellee school district are separate and distinct corporate bodies, each with power to tax property within their respective jurisdictions and without reference to the value the other may assess the same property for taxation; that is, the assessed valuations fixed by one body is not binding upon the other, and each body is left free to assess all property within its jurisdiction at what its officers charged with that duty find the true and fair market value to be. Therefore the value at which one such body may assess property for taxation for its purposes is wholly immaterial and irrelevant as to what value the other may assess it for its purposes.

Appellants cite the case of Power v. Andrews (Tex. Civ. App.) 253 S. W. 870, in support of the admissibility of -the prpffered testimony. But that case is not authority for the proposition asserted. It merely holds that the action of a school board which “arbitrarily, and without regard to market value of the lot in question, placed the valuation on said lot for school taxes at three times that fixed by the commissioners’ court for state and county taxes, and for city taxes at twice said valuations,” was void, because such ■valuation was made without reference to the fair 'market value and because the school authorities “were not guided by the market value” in making the assessment. In this case the testimony is undisputed that the school board valued the property of appellants at what it found the true and fair market value to be and without regard to what the lands were assessed at for state and county purposes. It also appears that the testimony of the witness offered was hearsay and properly .excluded on that ground.

With reference to appellants’ second proposition, they requested the submission of the following issue to the jury, which was refused: “Are the lands of defendant so remote from any public school supported or maintained by said taxes and is such school or schools so remote and inaccessible to persons residing thereon that the same are of no benefit to them or to said lands?”

Appellants contend that the issue should have been submitted because raised by both the pleadings and the evidence. We do not sustain the contention. Appellee was created an independent school district by special acts of the Legislature, under provision of article 7, § 3, of the Constitution, as it existed at the time, and is therefore a body corporate, with full power and authority to levy and collect taxes against all lands within its territorial limits for the support and maintenance of public free schools. Under article 7, § 1, of the Constitution, the establishment and maintenance of public free schools is made a state object, and the power granted by the Constitution to the Legislature to. create school districts and to the board of trustees to maintain public free schools therein in order to effectuate this state object is necessarily governmental. Tisdale v. Eldorado Independent School Dist. (Tex. Civ. App.) 287 S. W. 147, affirmed by Com. App. 3 S.W.(2d) 420. Neither the Constitution nor statutes place any restraint upon the Legislature’s power to create school districts, or upon the power of the board of trustees to levy and collect taxes against lands therein with which to maintain schools with regard to ascertaining if any lands in the districts are so remotely located from the schools as not to be benefited by such schools or taxes.

In the case of Glass v. Pool, 106 Tex. 266, 166 S. W. 375, where the Legislature had by special act created an independent school district, it was held that the owners of lands in such district had no constitutional or lawful right to complain that their lands were so remote and inaccessible to the schools maintained as to derive no benefit from the schools or taxes. We quote the following statement of the Supreme Court from that case: “This conclusion embraces all of the objections which relate to the unfairness, injustice and wrong to the complainants whether they occurred through fraud, inadvertence or want of information, all of these matters were settled by enacting the law.”

This decision is based upon the settled doctrine that, where the Constitution gives the Legislature full and plenary power to deal with political subdivisions of the government, it may do so as it deems wise and best; or, as is said by Mr. Cooley: “Restraints on the legislative power of control must be found in the Constitution of the state, or they must rest alone in the legislative discretion. If the legislative action in these cases operates injuriously to the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right, through the ballot box, all these wrongs.” Cooley, Const. Lim. (6th Ed.) p. 229.

We therefore conclude that the special legislative acts creating appellee an independent school district with full power and authority to levy and collect the taxes sued for settled any question of whether the schools to be maintained* by the taxes were so remote and inaccessible to persons residing on appellants’ lands as to be of no benefit to them or to said lands.

Appellants cite the Archer County Special Road Bond Case (Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 416)‘ in support of their lack of benefits plea. But that case specifically recognizes the rule here announced, and distinguishes itself from this case by the following language: “Where a local improvement territory is selected and the burden is spread by the legislature, or by a municipality to which the state has granted full legislative powers over the subject, the owners of property in the district have no constitutional right to be heard on the question of benefits.” Syllabus 6, 46 S. Ct. 141.

Appellants’ third proposition, that the addition of 10 per cent, to the already assessed valuations as a penalty for failure of appellants to render their lands for taxation was without authority of law, is sustained. There is neither constitutional nor statutory authority, for this action of the school board. Appellee contends, however, that since under appropriate special issues the jury found that appellants’ lands, including the added penalty, were not assessed in excess of their true and fair market value, any error of law or mistake ,of fact made by the board as to the manner of arriving at that value was harmless and. immaterial. The contention cannot be sustained, because in arriving at that true and fair market value the board failed to assess all taxes equal and uniform as required by the Constitution; that is, the board did not assess against lands of the same character and value of appellants’ lands, and belonging to owners who rendered theirs for taxation, the 10 per cent. penalty or increase. Therefore. there is a lack of equality and uniformity between the valuations of lands belonging to those who rendered for taxation and appellants’ lands, which were not rendered for taxatibn, to the extent of the 10 per cent, -penalty. But, ap-pellee further contends that, since the board passed the 10 per cent, penalty or increase alike to all lands not rendered for taxation, such action constituted a proper classification or grouping of such lands for taxation purposes, and that the action of the board was therefore not violative of the equal and uniform provision of the Constitution. The vice of this contention is that, in assessing the penalty or making the increased valuations the board’s action was not based upon any proper classification of the lands themselves, but upon a classification of the owners, and solely as a penalty, and without any reference to true and fair market value of the lands. There is no authority of law for the penalty, and its addition to the already assessed valuations of appellants’ lands was therefore void as being in violation of the equal and uniform taxation clause of the Constitution.

However, appellee offers, in the event this court holds the 10 per cent', penalty added to be unlawful, to file a remittitur of the taxes based thereon. The remittitur is ordered filed, and the judgment is reformed so as to deny a recovery of all taxes, interest, and penalties based upon the 10 per cent, penalty added to the already assessed valuations of appellants’ lands for their failure to render same for taxation for the year in question; but in all other respects the judgment is affirmed.

Reformed and affirmed.


author: LANE, J.

text:
    KEPPLER v. STEVENS.
    (No. 9270.)
    Court of Civil Appeals of Texas. Galveston.
    March 4, 1929.
    Rehearing Denied March 21, 1929.
    Jones & Jones, of Houston, for appellant.
    Earle M. Manint and Thomas R. Cox, both of Houston, for appellee.
   LANE, J.

This suit was brought by F. L. Stevens against Carl Keppler to recover upon six promissory, notes, alleged to have been executed by Keppler and made payable to the order of Brenard Manufacturing Company of Iowa City, Iowa. Five of said notes were for the sum of $120 each, and the sixth one for the sum of $85, all dated February 24,1927.

The plaintiff alleged that the notes had been, by the payee, assigned to him for a valuable consideration before maturity, and that he was the legal owner and holder thereof. He also sued for reasonable attorney’s fees as stipulated in the notes. Defendant answered by plea of non est factum and general denial.

The cause was tried by the court without a jury, and judgment was rendered for the plaintiff for the principal sum of the notes and for 10 per cent, attorney’s fees, and de-: fendant has appealed.

Appellant insists that the finding of the court, that appellant executed the notes, is against the great weight and preponderance of the evidence, and for that reason the judgment based on such finding should be reversed and the cause remanded.

We think appellant’s contention should be sustained. Only three witnesses testified in behalf of appellee relative to the execution oí the notes, namely, M. A. Pheney, H. W. Gordon, and F. W. Ilfrey. All of these witnesses qualified as experts on handwritings. None of them knew appellant, nor had any of them ever seen him sign his name or execute any other writing. They were furnished with the admitted signature of appellant, signed to his sworn plea of non est factum, and based their conclusions as to whether or not the notes had been signed by appellant solely upon a comparison of the signature on the plea with those on the notes.

M. A. Pheney testified that from the comparison of the signatures on the notes with that on the plea he was of opinion that they were all signed by the same person; that the width of each of the signatures, on the notes is the same; that each of the signatures from the extreme left to the extreme right measures exactly the same.

The testimony of both Gordon and Ilfrey was practically the same as that of Pheney. Each of them testified that in his opinion Mr. Keppler signed the notes, judging by the comparison made. They also testified that they had never seen two signatures made by the same man which were absolutely identical in every respect.

Appellee Stevens testified by deposition •that he was the legal and sole owner and holder of the notes; that he purchased them from Brenard Manufacturing Company for value, etc., before maturity, and that at the time of such purchase he had no notice of any infirmity in them; that he was not now, nor was he ever directly or indirectly, in any way connected with Brenard Manufacturing Company.

Appellant testified that neither of the signatures to the notes was his signature; that he never signed any of them or authorized any one to sign them for him; that he had never seen any of the notes until they were presented to him for payment; that he never knew of the Brenard Manufacturing Company, and never had any transaction with them; that about February, 1927, a stranger came to his place of business and asked him if he was interested in radios; that he told him no, that he was iñ the oil business and could not sell radios ; that the stranger asked him if he could explain, and that he said all right, and that at this stage of the conversation Mr. McConnell stepped in his office; that this stranger wanted him to solicit purchases for the radios; that the stranger said that all he (Keppler) would have to do was to solicit names of people who wanted radios, and said that after he got a list of names to send them in to the company, and that would not cost him anything; that all he was to do was to solicit trade, and that, if any were sold he (Keppler) would get a commission; that he told the stranger that he would not be interested unless he could see one of the radios, and asked him if he would bring one out; that he thought the man was working for some one in Houston; that the stranger said he would bring one out, but to do so he would have to get his name so as to show where it should be delivered; that at the request of this man he wrote his name on a piece of paper, and the man took it and left with it, and that he had never seen nor heard of him since; that he never ordered anything from this man and he never brought him any instrument; that he does not remember the name of this man; that he never received a radio from this man or from Brenard Manufacturing Company; that he wrote his name for this man only one time, and that signature was not to any note; that the paper he signed was not like either of the notes; that in the conversation mentioned nothing was said about a note; that his business was a filling station business and he had been engaged in it for three years; that he did sign a paper shown him, but he did not know what it was, as he did not read it because it was in fine print, and he thought it was only an order to bring a radio out for him to see, but it now appears to- have been an agency agreement between himself and Brenard Manufacturing Company.

W. H. McConnell testified: “That he lived in Harris County, Texas, and knew the appellant and was at his place of business on February 24, 1927, and was there when the man came talking the sale of radios; that he heard all that was said; that nothing was said about notes; no paper was drawn up at that time; that the salesman asked Keppler to sign his name on a piece of paper so it would be known where to take a machine; it would state just where he was located and the appellant just wrote his name one time; that there was no discussion between them about signing notes; no note was mentioned; that witness had never seen the man before and had never seen him since; Keppler signed his name one time; he did not write it any more than' that; I saw the paper he signed leisurely. As to the words of this man, it was about like this: ‘Keppler said he would not be interested without he could see a machine,’ and the saleman remarked: ‘If you will sign this I can get you one out here and demonstrate it.’ I went to the defendant’s place to sell oil. I heard the discussion. This fellow drove up just ahead of me and he walked in just about ten feet ahead of me. He did not know what paper appellant signed but would have known if 'it was a note. I left a few minutes after the salesman left. Witness was in a position to hear everything that went on in the conversation. Keppler said it is dark and I cannot read without any glasses, but he said it is just stating where you are located and he just wrote his name one time.”

The stranger, or supposed salesman, was not a witness at the trial, and it is not shown that plaintiff made any effort to secure his testimony or to learn where he could be found; nor was there any testimony by any one connected with Brenard Manufacturing Company that that firm ever saw or heard of the notes.

Appellant testified that in about three weeks after he saw the stranger he received a letter from loica stating that they had shipped him six or seven radios, and the next day the express man brought six or seven radios to his place of business, and he refused to receive them.

It was sh,own that measurements were taken of the signatures on each of the notes, and that the signatures on each were of the same measurement to the minutest fraction; that they were of the same width from left to right, and that all the letters forming the signatures were of the same size and height. It is. hardly conceivable that any person could make signatures so exactly the same, except where they were made by tracing from a signature.

Having reached the conclusion, from all the evidence and circumstances shown, that the finding that appellant executed the notes was so against the weight and preponderance of the evidence as to be clearly wrong, it becomes our duty to reverse the judgment and remand the cause, and it is so ordered.

Reversed and remanded.


author: MORROW, P. J.

text:
    Jess ANDREWS v. STATE.
    (No. 12452.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    Lockhart & Garrard and F. D. Brown, all of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Driving an automobile while intoxicated is the offense; punishment fixed at confinement in the county jail for a period of 60 days.

Upon the written request of the appellant, verified by his affidavit, the appeal is dismissed.


author: LATTIMORE, J.

text:
    N. O. GUNNIN v. STATE.
    (No. 12375.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    Burch & Woodruff, of Decatur, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for delivering intoxicating liquor; punishment, one year in the penitentiary. The record is here without statement of facts or bills of exception. There are some exceptions to the charge of the court, whose weight and pertinence cannot be appraised in the absence of statement of facts. The indictment, the charge of the court, the verdict, and judgment are in regular form.

No error appearing, the judgment will be affirmed.


text:
    Porfirio LOPEZ v. STATE.
    (No. 12373.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    W. H. Tolbert, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The record is here without bills of excep tion. The evidence appears sufficient to support the verdict and judgment. Appellant was found in possession of three gallons of whisky. He was drunk at the time. The only defense offered was his own testimony, in which he said he had the liquor for personal use, and not for sale. This was for the jury, and we are not prepared to say that they were not justified in declining to accept his testimony, and in returning a verdict of guilty.

The judgment will be affirmed.


text:
    John PARR v. STATE.
    (No. 12386.)
    Court of Criminal Appeals of Texas.
    March 6, 1929.
    H. G. Brown, of Mt. Pleasant, for appellant. A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The record is accompanied by no statement of facts, and is bare of any complaints of the rulings of the trial court by bills of exceptions or otherwise.

The judgment is affirmed.


author: CHRISTIAN, J.

text:
    Leon ROBINSON v. STATE.
    (No. 12472.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

No statement of facts or bills of exception appear in the record. No question is presented for review.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Virgilio RODRIQUEZ v. STATE.
    (No. 12493.)
    Court of Criminal Appeals of Texas.
    Feb. 27, 1929.
    Earl W. McKay, of Brownsville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for receiving and concealing stolen property; punishment, two years in the penitentiary.

The record is here without any statement of facts. The indictment correctly charges the offense, and is followed by the judgment and sentence.

No error appearing, the judgment will be-affirmed.


author: DANE, J.

text:
    R. A. GROVES v. Gladys GROVES.
    (No. 9243.)
    Court of Civil Appeals of Texas. Galveston.
    Feb. 12, 1929.
   DANE, J.

This suit was brought by Mrs. Gladys Groves against her husband R. A. Groves, praying for a decree dissolving the bonds of matrimony existing between the two. Plaintiff alleged statutory grounds, which, if proven, would entitle her to the decree prayed for. Defendant made no answer.

Upon sufficient proof the court rendered judgment decreeing a dissolution of the marriage relation as prayed for. The defendant has appealed, but has filed no brief in this court. Had our attention been called to the failure on the part of appellant to file briefs before the cause was submitted, we would have dismissed the appeal for want of prosecution. However, since the cause has been submitted, and we find that the plea of the plaintiff and the evidence are sufficient to support the judgment rendered, it is ordered that the same be affirmed.

Affirmed.


author: TAYLOR, Commissioner.

text:
    SAYLORS et al. v. WOOD et al.
    No. 1826—7513.
    Commission of Appeals of Texas, Section B.
    May 22, 1940.
    Landman & Landman, of Athens, for plaintiffs in error,
    W. D. Justice and Justice & Justice, all of Athens, for defendants in error.
   TAYLOR, Commissioner.

This is a trespass to try title case, to try title to a part of the J. M. Eakin Survey in Henderson county. Upon conclusion of the evidence defendants in the trial court, Maud Saylors and others, filed a motion for an instructed verdict. The motion was denied and the cause was submitted to the jury upon the following issues :

Issue No. 1. “Do you find * * * that the land in question was sold at' sheriff’s sale for a grossly inadequate consideration * * * ?”

Issue No. 2. “Do you find * * * that the officer executing the order of sale failed to give notice to Mrs. Maud Say-lors that said lands would be sold under order of sale * * * ?”

Issue No. 3. “Do you find * * * that the officer executing the order of sale * * * failed to publish a notice of the sale * * * in a newspaper of general circulation in Henderson County, Texas?”

No objections to the charge were filed by either the defendants or the plaintiffs, nor was the submission of a special issue requested.

The answer by the jury to the first issue reads: “-We think it (the land) sold for a fair price considering the indebtedness against the place.”

The second issue was not answered, the court having instructed the jury to answer it only in the event it answered issue No. 1 in the affirmative. The third issue was answered in the negative.

The verdict was received by the court without objection. Defendants filed a motion for judgment notwithstanding the verdict. The court denied the motion and judgment was rendered in favor of plaintiffs, which was affirmed by the Court of Civil Appeals. 120 S.W.2d 835. Reference is made to the opinion of the court for a fuller statement of the nature of the case.

The general ground alleged in the motion non obstante as to why it should have been granted is that defendants’ motion-for an instructed verdict should have been granted. This general ground is predicated on three reasons which are set out at length in the motion.

The first is, briefly stated, that the testimony is to the effect that the land had a value of “Eighteen Hundred Dollars to Twenty-six Hundred Dollars over and above the Federal Land Bank debt (the bank was not a party to the suit) of between Seven Hundred and Eight Hundred Dollars,” and that the sale price of $50.00 paid by the purchaser at the judicial sale was grossly inadequate as a matter of law, and -that “as 'a matter of law there should be judgment for the defendants because of such grossly inadequate consideration.”

The substance of the jury’s finding is that the land did not sell for a grossly inadequate consideration. Since there is evidence to support the finding it is final in view of the Court of Civil Appeals’ holding on this point.

The second reason defendants allege why the trial court should have instructed a verdict in their favor is that the evidence is to the effect that the notice of sale was published in the Malakoff News, which, while it had a general circulation in a portion of the county in which the land was located, did not have a general circulation in that particular section of the county in which it is located.

It is not contended that the newspaper in which the notice was published was not published in Henderson county in which the land is situated. The Court of Civil Appeals correctly holds that the law does not require that the paper shall have a general circulation in the particular locality in the county where the land is situated. Art. 3808, R.S.1925.

The third reason alleged is that article 3808, R.S.1925, makes it mandatory that an officer levying on real estate for the purpose of sale shall give the defendants named in the judgment personal notice or notice by mail, and that the evidence shows as a matter of law he did not do so. Defendants contend that the un-contradicted evidence shows that the officer who handled the transaction, mailed the notice to the defendants at an incorrect address.

This contention is overruled.

Mrs. Saylors and the other defendants testified they did not receive a copy of the notice. The officer who handled the matter, who is presumed to have done his official duty, testified in effect that he had no independent memory as to the matter; that he attended to it some four years prior to the time he was testifying; that he uniformly made inquiry to ascertain the post office addresses of the parties and mailed the notices accordingly; also that the return address was on the envelopes, and they were not returned. His testimony in response to the question as to whom and where he mailed the notices, follows:

“I don’t remember now off hand. That has been four years ago. In my return I mailed three notices. I mailed them to who they were directed to- — -in those things —I don’t remember.
“Q. Where did you mail them to?' A. I don’t know that.
“Q. Do you know the post office? A. No. I always ask who gives me the order of sale where the post office is on those things and mail them out to them. I don’t remember now.
“Q. You don’t have any record at all, where you mailed them to? A. No, sir.
“Q. Well is it your opinion that you mailed them -to Murchison, or not? A. Well I imagine I did mail—
“Q. Where did Jack Saylors live? A. He lived down there between Murchison and Brownsboro somewhere.”

The copy of the return order filed by the court shows on its face among other things that he mailed “to each of the within named defendants a copy of said notice of sale.”

It appears from what has been stated that the evidence, at most, raised only a question of fact. The trial court did not err in submitting the issue raised.

Defendants contend, however, that the trial court erred in submitting the issue conditionally, that is, in instructing the jury to answer it only in the event it answered the preceding issue affirmatively-

No such, objection, in fact no objection of any kind to the charge was offered prior to its submission to the jury, which is consistent with defendants’ theory that the court should have instructed’ a verdict in their favor. There was no error in submitting the issue. The contention is also overruled.

We may add that the writ of error was granted under the view that the evidence conclusively showed, as alleged in the application, that the officer executing the order of sale mailed the notices of sale to the wrong address.

We are not to be understood as holding, however, that even if it had been conclusively established that the officer mailed the notices to an incorrect address it would be a sufficient ground for setting aside either the judicial sale in question or the sheriff’s deed executed pursuant thereto. We'may add further in this connection that defendants did not plead in the trial court any failure on the part of the officer to mail notices to defendants. The pleaded complaint was with respect to the publication of the notice in the Malalc-off News. Nor did defendants plead a tender of any kind on their part other than a conditional tender, conditioned upon the trial court’s “entering judgment passing full title .to the lands in question to these defendants, that is all surface title to the land, all lease rights to the land, and all mineral rights to the land”. This conditional tender was made in the face of the fact that the holder of the encumbrance upon the land above referred to was not a party to the suit.

No error on the part of the Court of Civil Appeals having been pointed out, its judgment, affirming that of the trial court, is affirmed.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    WEST et ux. v. CULPEPPER et al.
    No. 2243—7368.
    Commission of Appeals of Texas, Section A.
    May 22, 1940.
    Lewright, Lewright & Young, of San Antonio, for plaintiffs in error.
    Perkins & Floyd, of Alice, for defendants in error.
   GERMAN, Commissioner.

On July 1, 1937, plaintiffs in error, Buck S. West and Tommie Scott West, filed this suit in the District Court of Live Oak County against W. G. Culpepper and J. F. Stewart, as defendants. The parties will be designated as in the trial court.

Plaintiffs asked for temporary injunction, 'and as final relief prayed that the temporary injunction be made permanent. The basis of the prayer for injunction was that plaintiffs were in possession of certain lands aggregating about 2,300 acres; that they had for a number of years been in actual and peaceable possession of said lands; that defendants had wrongfully entered upon said lands and were attempting to construct certain fences thereon and around certain portions thereof; that the construction of said fences, if permitted, would interfere with plaintiffs’ possession and would prevent the grazing of their cattle on said lands, and would deprive them of the benefit of water for their cattle.

A temporary injunction was granted in favor of plaintiffs. On appeal, the Court of Civil Appeals, on November 3, 1937, dissolved this injunction. 110 S.W.2d 231. Although writ of error was granted, plaintiffs at no time requested the Supreme Court to grant temporary injunction, and have in no manner indicated that a restraining order was necessary.

After the submission of this case here, a suggestion was made that the cause was moot. In response to request by the Supreme Court the Honorable W. G. Gayle. Judge of the District Court of Live Oak County, held a hearing and made report to the Supreme Court with reference to the conditions now prevailing as regards the subject matter of this suit. From this report it clearly appears that if any controversy exists between the parties it involves purely a claim of title to land, and does not pertain to interference with possession of plaintiffs.

We are of the opinion that it would be wholly useless to now determine whether or not the trial court was justified in issuing temporary injunction, as was done, and therefore the cause as pending here is moot. Besides, it is reasonable to presume that plaintiffs are now ready for a speedy hearing upon the merits of their action, if they desire to further prosecute same.

This cause is, therefore, in so far as it involves temporary injunction, dismissed at the cost of plaintiffs in error, and the cause would stand upon the docket of the district court for further hearing upon the merits of the case.

Opinion adopted by the Supreme Court.