text:
    COMMANDER v. STATE.
    No. 21141.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.

      H. L; Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is maintaining a liquor nuisance; the punishment, a fine of $300 and confinement in jail for thirty days.

The complaint and information charged, in substance, that on the 16th day of November, 1939, appellant maintained and operated a common nuisance in a house, building, structure and place which he controlled and which was situated “about one-half mile northwest from the City of Nacogdoches, on the old Tyler Road in Nacogdoches County, Texas.” Specifying the acts of appellant in maintaining such alleged nuisance, the complaint and information charged that whisky was kept, stored, sold and bartered in violation of the laws of the State of Texas in such house, building, structure, etc. In addition to alleging that the offense occurred on or about the sixteenth of November, 1939, it was set forth that appellant kept, stored, sold and bartered such whisky on the premises mentioned on the first day of October, 1939, the fourth day of October, 1939, and the sixth day of November, 1939.

Appellant made a motion to quash the complaint and information, which, among other things, was based on the ground that such pleadings did not charge him in plain and concise language with any certain offense against “the State Prohibition Laws.” We take the following statement from the brief of appellant: “In charging the criminal offense of maintaining a common nuisance, the particular'act of which the state complains must be set forth in plain and intelligible words, so that the ac-eused may know what he will be called tq answer, and may be able to prepare for his defense, especially where there are a number of ways said offense may be committed; said pleading must not be indefinite and uncertain and must not charge more than one offense in one count ; * * *»

In support of his contention that the pleadings of the state are indefinite, appellant cites Carr v. State, 132 Tex.Cr.R. 438, 104 S.W.2d 866, 867, -in which a complaint in language as follows was held to be fundamentally defective: “Did then and there unlawfully maintain a common nuisance at Gladewater, Gregg County, Texas, the same being a building and structure and place where intoxicating liquor is sold, kept and bartered in violation of the law of this State against the peace and dignity of the State.”

In holding the complaint defective in Carr’s case, this court, speaking through Judge Lattimore, said: “We are constrained to believe said complaint and the information based thereon fundamentally defective, and that same do not charge an offense so as to apprise the accused >of what he shall be expected to meet. To merely charge that accused maintained a common nuisance is not sufficient when there seem some sixteen or eighteen ways laid down in article 1, chap. 467, Acts Second Called Session of 44th Legislature (Vernon’s Ann.P.C. art. 666 — 1 et seq.) in which intoxicating liquor may be kept, sold, and bartered in violation of law, and the information and complaint in this case do not specify or name any one of these ways. In other words, this appellant could not tell from an inspection of the State’s pleadings whether he might expect to be tried for keeping intoxicating liquor in broken and unsealed containers for sale for human consumption, or whether the offense was selling such liquor without having obtained a permit, or for not having a distiller’s permit and selling to some one ether than the holder of a wholesaler’s permit, or for selling intoxicating liquor between 12 o’clock p.m. and 7 o’clock a.m., or for selling on election day, or on Sunday, or to a person under twenty-one years old, or to an habitual drunkard, or to one visibly intoxicated, etc.”

The statute under which the complaint and information were drawn in Carr’s case was substantially the same as that involved in the present prosecution. We quote the pertinent part of the present statute, Article 666 — 29, Vernon’s Ann.Texas P.C., as follows: “Any room, building, boat, structure, or place of any kind where liquor is sold, manufactured, bartered, or given away in violation of this Act, * * * or any place where such beverages are kept for sale, barter, or gift in violation.of law, and all liquor and all property kept and used in said place, hereby are declared to be a common nuisance * *

When statewide prohibition prevailed in Texas Article 688, P.C.1925, provided as follows: “Any room, house, building, boat, structure or place of any kind similar or dissimilar to those named, where intoxicating liquor is kept, possessed, sold, manufactured, bartered or given away, or to be transported to or transported from in violation of law, and all intoxicating liquors and all property kept in and used in maintaining such place are hereby declared to be a common nuisance.”

In Davis v. State, 106 Tex.Cr.R. 425, 292 S.W. 1109, 1110, this court had before it the question whether an indictment charging the offense denounced in the last quoted statute was sufficient against exceptions, as follows: “(a) It was not alleged that^ accused kept the intoxicating liquor in the building; (b) it was not alleged that accused himself sold said intoxicating liquor; and (c) it failed to allege that accused ‘knowingly’ kept intoxicating liquor for the purpose of sale.”

In upholding the sufficiency of the indictment, this court, speaking through Judge Hawkins, used language as follows: “It is believed the absence of none of the aver-ments mentioned affects the validity of the indictment. The offense denounced in article 688, supra, is not the sale of liquor, nor 'the keeping of it for the purpose of sale, but maintaining a nuisance by keeping or maintaining a building in which intoxicating liquors are kept, possessed, or sold in violation of law. For one to be guilty of the offense so denounced it is ■ not thought to be requisite that accused himself sell or keep for sale the intoxicating liquor in the building, hence no necessity for so averring; it therefore follows that it would likewise be unnecessary to allege that accused ‘knowingly’ kept the liquor for the purpose of sale. Neither would it be required to allege that accused ‘knowingly’ kept or maintained the building, etc. The word ‘knowingly’ is not used in the statute under consideration. Article 688. It is used in article 687, in defining a kindred offense, and by reason of its use there this court held in Morris v. State, 93 Tex.Cr.R. 99, 245 S.W. 915, that its omission by the pleader in attempting to charge an offense under said article 687 would be fatal to the validity of the indictment.”

It is observed that in upholding the sufficiency of the indictment in the Davis case the court considered and discussed its sufficiency only in the light of the exceptions embraced in the motion to quash. Stated in another way, the court held it was not necessary to allege that the accused kept the intoxicating liquor in the building; and that it was not necessary to allege the accused himself sold intoxicating liquor, etc.; and again that it was not necessary to allege that the accused knowingly kept such liquor for the purpose of sale. Whether an indictment merely following the language of the statute was sufficient was not decided. Hence we are of opinion that the Davis case — cited by the state — is not authority for holding thé complaint and information in the present case sufficient. On the contrary, the opinion is expressed that when we look to the questions decided in the Carr and Davis cases there is an absence of conflict and that the holding in Carr’s case in controlling in determining the sufficiency of the state’s pleadings in the instant case. It ■follows that in giving application to the holding in Carr’s case we must hold the complaint and information defective.

We are of opinion that the complaint and information' are not subject to appellant’s complaint that they are duplicitous. We quote from 33 C.J. page 734, as follows: “Since maintaining a nuisance is a continuing offense, it may be alleged to have been kept and maintained on a day named ‘and on divers other days and times’ prior to the, indictment.”

The proof fails to support the allegations in the state’s pleadings relative to the description of the premises where it was alleged the nuisance was maintained. Proof supporting such averment was necessary.

The judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    Ex parte NEWSOM.
    No. 21366.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Wm. E. Davenport and Clyde Vinson, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

It appears from the record that relator was charged by complaint, in Reagan County, Texas, with the offense of burglary, and at a hearing thereon on July 19, 1940, he was held in bond in the stun of $1,500. That thereafterwards a bond in said sum was presented to the sheriff of Reagan County, who refused to accept said bond, and this writ of habeas corpus is brought for the purpose of releasing relator from his confinement in said jail of Reagan County, at Big Lake, and is based upon the proposition that a good and sufficient bond has been presented to the sheriff of Reagan County, and he has arbitrarily refused to approve such bond.

Under Art. 53a, Vernon’s Ann. C. C.P., it appears that we have the power,, if we so desire, to grant the writ of mandamus in certain cases whenever necessary to enforce the jurisdiction of this court, but only to that extent. It seems to us-that this hearing is an effort to obtain from this court a writ of mandamus directing the sheriff of Reagan County to approve this proffered bond, of which action we have no jurisdiction.

It further appears that the undertaking of the bond was to bind the relator to await the action of the grand jury on the matters set. forth in the complaint,, which grand jury was to meet in Big Lake' on October 7, 1940, which date has already passed, and doubtless the bond, should same be approved, would now be functus officio^ at this time.

The appeal is dismissed.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    WEEKS v. STATE.
    No. 21168.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    Rehearing Denied Nov. 6, 1940.

      Myres & Myres, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is the sale of beer in a dry area. The punishment assessed is a fine of $100.

Appellant challenges the sufficiency of the evidence to sustain her conviction.

The record shows that on the 24th day of October, 1939, W. F. Williams and four companions went to the home of the appellant and purchased from her five cans of beer for which Williams paid her one dollar. He further testified: “I think that is the lady sitting there (pointing to Mrs. Jim Weeks) that sold us the beer.”

Juanita House testified that she accompanied Mr. Williams and three others to the home of Mrs. Jim Weeks; that she had known Mrs. Weeks prior to the time in question; that they went into her home and took seats at a table, and Mrs. Weeks brought five cans of beer to them and opened them. We quote from her testimony as follows: “I won’t say for sure that that lady sitting there (pointing to defendant, Mrs. Jim Weeks) was the one that brought us the beer, because the lights was dim * * * but I think it was Mrs. Weeks that brought the beer in to us. * * * .She was the only woman there, except the one in our crowd.” •

Appellant did not testify or offer any affirmative defense. It was admitted on the trial that Johnson County was a dry area.

We think the evidence is sufficient to identify the appellant as the person who sold the beer.

Her next contention is that the evidence fails to show the alcoholic contents of the beer and is therefore insufficient to show that it was intoxicating. This court has held that it will take judicial knowledge that beer is intoxicating. See Scott v. State, 112 Tex.Cr.R. 84, 14 S.W.2d 272; Moreno v. State, 64 Tex.Cr.R. 660, 143 S.W. 156, Ann.Cas.1914C, 863; Fulmer v. State, 115 Tex.Cr.R. 239, 29 S.W.2d 789.

Appellant also complains of the court’s action in declining to sustain her motion to quash the complaint and information. We deem the complaint and information sufficient. It is alleged that Mrs. Jim Weeks, on or about the 24th day of October, 1939, possessed for the purpose of sale an intoxicating beverage, to-wit: beer; and it is further charged that the beer was possessed in Johnson County after an election had been held within and for said county for the purpose of determining whether the sale of intoxicating liquors should be prohibited; that such election resulted in favor of prohibition, etc. This was sufficient under the law to charge the offense of' which she was convicted.

All other matters complained of have been examined by us and are deemed to be without merit.

No reversible error appearing in the record, the judgment of the trial court 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.

BEAUCHAMP, Judge.

In her motion for rehearing appellant insists that the evidence was insufficient to warrant a conviction because it does not show that the beer involved was intoxicating. On the other hand, the witnesses who drank a part of it said that they did not become intoxicated.

Appellant presents that under the rule laid down in Holman v. State, 111 Tex.Cr.R. 459, 14 S.W.2d 849, the proof is insufficient because it does not affirmatively show the beverage to be intoxicating. It is apparent that appellant overlooks the definition of “beer” as contained in the present statute. Furthermore, the case is distinguishable from the Holman case in that there was an issue raised as to whether or not it was “beer” or “home brew.” Defendant testified in that case that the liquid in question was not beer; that it was not intoxicating: and that it was home brew in the making which had not reached the stage at which it could be served for drinking, hut had only “started.” An issue was squarely raised in that case and this court properly held that it should be submitted to the jury. No such issue appears in the case at bar.

We adhere to the original opinion. The motion for rehearing is overruled.


text:
    RAINWATER v. STATE.
    No. 20908.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    For prior opinion, see 141 S.W.2d 364.
    James E. Faulkner, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

A second motion for a rehearing has been presented herein, same being received on July 8, 1940, after.the adjournment of the term of this court on the last Saturday in June. At that term this cause was affirmed in an opinion handed down on May 8, 1940; thereafter, on June 26, 1940, appellant’s motion for a rehearing therein was overruled in a written opinion of this court, 141 S.W.2d 364, and this court on the 29th day of June 1940 adjourned for the term by operation of law. This application to file a second motion for a rehearing was not received by the clerk of this court until nine days after the adjournment of the term of court at which the judgment of affirmance became final. In the case of Silver v. State, 110 Tex.Cr.R. 512, 8 S.W.2d 144, 9 S.W.2d 358, 359, 60 A.L.R. 290, we held:

“From what has been said it is apparent that by no provision of the statute is the Court of Criminal Appeals authorized to entertain a motion for rehearing after the adjournment of the term. It has been the practice to do so, however, in instances 'in which the first decision of the court is announced at a time less than 15 days before adjournment. The practice rests upon very little, if any, legal basis, but as a practical matter has much to commend it. ' The practice, however, has never been extended to authorize the court to consider a so-called ‘second motion for rehearing’ after the adjournment of the term.

“In the present instance the power of this court to revise a judgment which became final during the term upon the overruling of the motion for rehearing ceased with the close of the term, and' at this time the court possesses no power to change the final judgment entered during the previous term, and, having no power to change its judgment or grant the relief prayed for in the application before it, it would be futile to permit the filing of said application.”

The application to file second motion for a rehearing is denied.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    COTHREN v. STATE.
    No. 21134.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Granted Oct. 23, 1940.

      J. Mitch Johnson, of San Saha, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of a violation of the local option liquor laws, and fined the sum of $200.

It was pleaded and proven that appellant had heretofore been convicted in the county court of said county of a similar offense, and on account of such previous conviction he seems to have been given double the lowest penalty.

The herein appealed cause bears the county court number of 1786, and it appears that the previous conviction of a similar offense relied upon in order to enhance the punishment bore the San Saba County Court number of 1744.

The introduction of the previous conviction was objected to as shown by bill of exceptions because this same cause No. 1744 had theretofore been used in cause No. 1786, which is the county court number borne by this case. We also find a further objection to the introduction of such conviction in this cause because, as said in the objection, said No. 1744 had been • theretofore used in enhancing the penalty in county court cause No. 1779. There is no proof, however, of its use in cause No. 1779, and the use of cause No. 1774 in this instant cause impresses us as being free from error in not being shown to have been theretofore used in any case for the enhancement of punishment purposes.

The condition that we find this record in is rather confusing, but we gather therefrom that county court cause No. 1774 was properly used for the enhancement of punishment purposes in this instant cause, it being county court No. 1786, and this judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

In copying the foregoing opinion there has appeared a typographical error whereby the number 1774 has at two places been substituted for number 1744. This has given rise to a vigorous motion for rehearing in this court. Similar errors in the motion make it appear that the former conviction discussed in the opinion had been previously utilized in enhancing the penalty in number “1786”. That is this very case on appeal. However, from an examination of the record, even in the face of the confusion resulting from appellant’s bill of exception, and the still more confusing brief on the- subject, it appears that the former conviction in Cause No. 1744 had been previously util-' ized in another prosecution for a similar offense under Cause No. 1779, as well as in other cases. See Cothren v. State, Tex.Cr.App., 140 S.W.2d 860. The doctrine announced in that case is applicable here and is adhered to.

The motion for rehearing is granted, and the judgment of the trial court is reversed. •


author: CHRISTIAN, Judge.

text:
    CORMIER v. STATE.
    No. 21138.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    D. F. Sanders and J. A. Veillon, both of Beaumont, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Article 979, P. C., reads as follows: “He is guilty of forgery who without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were. true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.” (Italics ours.)

Article 988, P.C., provides: “The instrument must purport to be the act of ‘another,’ and within the meaning of this word, as used in defining forgery, are included this State, the United States, or either of the States or Territories of the Union; all of the several branches of the government or either of them; all public or private bodies, politic and corporate; all courts; all officers, public or private, in their official capacity; all partnerships in professions or trades; and all other persons, whether real or fictitious, except the person engaged in the forgery." (Italics ours.)

The alleged forged check set out in the indictment purported to be the act of N. S. Wittman. Mr. Wittman testified that ,the check had not been signed by him and that he had given no one authority to execute the check. Among other things, the court instructed the jury in his charge as follows: “The instrument must purport to be the act of another and you are instructed that within the meaning of the word ‘another’ as herein used, are included any other person except N. S. Witt-man" (Italics ours.) Appellant’s timely and proper exception to the charge was overruled. The exception should have been responded to and the charge amended. Wittman purportedly signed the check. Hence an instruction to the effect that he was not included in the term “another” was contrary to the provisions of Article 988, supra, wherein it is observed that, among other things, it is provided that the term “another” as used in Article 979, supra, defining forgery, includes “all other persons, whether real or fictitious, except the person engaged in the forgery.” The act having purported to be that of Wittman, he was included within the term “another”. It follows that the instruction in question was erroneous.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    JONES v. STATE.
    No. 21137.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    D. F. Sanders and J. A. Veillon, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is knowingly passing a forged instrument; the punishment, confinement in the penitentiary for two years.

The question involved in the appeal is the same as that discussed in the companion case of Alfred Cormier v. State, 143 S.W.2d 959, this day delivered. There we reversed the judgment after holding the following charge to be erroneous: “The instrument must purport to be the act 'of another and you are instructed that within the meaning of the word ‘another’ as herein used, are included any other person except N. S. Wittman.” The act involved in the forgery of the check appellant is alleged to have passed purportedly was the act of N. S. Wittman. The same charge appears in the record herein. It was timely and properly excepted to. We deem it unnecessary to do more than refer to the opinion in Cormier’s case in making disposition of the appeal herein.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    HENRY v. STATE.
    No. 21232.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    H. L. Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in Nacogdoches County on a charge of driving an automobile on a public highway while intoxicated, and assessed a penalty of one year and six months in the penitentiary.

The record contains five bills of exception, but no statement of facts. It is strenuously argued in appellant’s brief that each bill may be considered without a statement of facts.

Bill No. One complains of the act of an officer in labeling- a bottle of whiskey found at .the scene of the accident in which he said it was received from the appellant on December 11, 1939, at 4 o’clock in the afternoon, which was at the time of the accident. The bill further sets out that objection was made to the introduction of the bottle and of the label because defendant had not been shown to have be.en connected with said whiskey. This objection -was overruled by the court, to which exception was duly taken.

There is nothing in the certificate of the judge which verifies the objection by the attorney. It only certifies -that such objection was made. We have no - statement of facts by which we can say that appellant had not been connected with the whiskey; that it was not labeled in his presence, or even that he had not agreed to it. So far as we may know from the record, appellant might have taken the witness stand and admitted all of the things proven and against which objection is lodged.

Bill of exception No. Two complains of the introduction of certain statements by the state’s witness while under cross examination by appellant’s attorney. The bill on its face shows that the evidence complained of was brought out by appellant’s attorney and not by the state. Certainly it shows no error, as he would. not be in position to complain of evidence which he himself developed in the manner indicated in this record.

Bill No. Three complains of the admission in evidence of the testimony of one of the arresting officers as to a statement made by appellant shortly after his arrest, by which the appellant admitted the whiskey found and introduced in evidence belonged to him. It is further stated in the bill that at the time this testimony was offered and admitted, the defendant had already testified that he did not make any such statement to the officer. We are unable to say what other evidence preceded the introduction of the testimony by the officer and cannot, therefore, conclude that it was improper and inadmissible. It appears that the subject was raised by the appellant himself. If he put a fact in issue which had not been brought out by the state’s witnesses, it would seem that the rule should be relaxed to permit the state -to use its available evidence to controvert that which had been offered by the defense. No rule can be announced, however, and none can be followed in the absence of a statement of facts showing the circumstances under which such evidence comes to the court for consideration. This forcefully illustrates the necessity of the rule requiring, in such cases, a statement of facts before a bill of exception can be properly appraised.

A similar discussion may be applied to bills of exception Nos. Four and Five. Appellant himself in discussing these bills in his brief finds it essential that he state certain facts, some of which he has also stated in his bills of exception, but there is no proof of the correctness of such statement by the court and no agreement by the prosecution that they are, in fact, true and correct. Consequently, this court is in no position to accept them as such. We cannot consider as evidence matters found only in the attorney’s statement as grounds for objection, or in his brief. There must be a statement' approved by the court.

In the absence of any error which we may consider, the judgment of the trial court is affirmed.


author: KRUEGER, Judge.

text:
    NEWBERRY v. STATE.
    No. 21229.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.

      H. R. Rolston, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for a violation of the Local Option Law. The punishment assessed is a fine of $100.

The only ground urged by the appellant for a reversal of the judgment of conviction relates to the court’s action in overruling her motion to quash the jury panel for the term. It appears from the record that appellant, in her, motion to quash the array of the jurors summoned, charged that the court failed to appoint a jury commission to select the jurors for the county court in accordance with Article 2109 of the Revised Civil Statutes of Texas in this, that the May term of the county court convened on the 6th day of May, 1940, and the court appointed a jury commission on the 15th day of April, 1940, to select petit jurors for the succeeding May term of said court; that the court intentionally and arbitrarily declined and failed at the previous December term of said court to appoint a jury commission to select the jury panel for the May term as required by the article of the statute above mentioned. The motion was overruled by the court and the defendant in due. time excepted. The bill of exception sets out the motion in detail. The facts agreed to by and between the State and the defendant pertaining to the allegations of the motion are also set out in the bill and sustain the allegations therein contained. It appears from the bill that the court, after hearing the motion, stated that it was a discretionary matter with him as to when to appoint jury commissioners to select jurors for the court and that he exercised- his discretion in not appointing a jury commission at the preceding December term of said court in accordance with Art. 2108 of the Revised Civil Statutes, and for that reason no jury commission was appointed by the court until the month of April, 1940.

A similar question as the one here presented was before this court in the case of Clark v. State, 138 Tex.Cr.R. 107, 134 S.W.2d 676, wherein we held that the trial court could not arbitrarily disregard the mandatory provisions of the statute. We do not deem it necessary to reiterate what we have said there, for the reason that a mere reference to the opinion in that case will be sufficient. See also Holmes v. State, 99 Tex.Cr.R. 298, 269 S.W. 96, and Johnson v. State, 31 Tex.Cr.R. 456, 20 S.W. 985.

In view of the fact that the court wil-fully disregarded the mandatory' provisions of the statute with respect to the appointment of jury commissioners to select petit jurors, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


text:
    E. E. FANN v. STATE.
    No. 21228.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    H. R. Rolston, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense charged is a violation of the Local Option Law relating to intoxicating liquor. The punishment assessed is a fine of $125.

The question here presented is the same as that which was before the court in the case of Newberry v. State, Tex.Cr.App., 143 S.W.2d 962, this day decided. For the reasons therein stated, the judgment of the trial court in the present instance is reversed and the cause remanded.

PER CURIAM.

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


text:
    GARRETT v. STATE.
    No. 21292.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is 'for murder. The punishment assessed is confinement in the state penitentiary for a period of five years.

The record is before us without statement of facts or bills of exception. No error appearing in the record, the judgment of the trial court 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:
    WHITEHURST v. STATE.
    No. 21184.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Shead & Smith, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

The record is before u’s without a statement of facts or bills of exception. -No-question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    HAYS v. STATE.
    No. 21388.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    No attorney for appellant.

      Lloyd W. Davidson, State’s .Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted upon a charge of driving a motor vehicle upon a public road while appellant was intoxicated. Punishment was assessed at five days in jail and a fine of $50.

No statement of facts or bills of exception appear in the record. Nothing is presented for review.

The judgment is affirmed.


text:
    LEADON et al. v. STATE.
    No. 21259.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    H. H. Wellborn, of Henderson, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the theft of cattle. The punishment assessed is confinement in the state penitentiary for two and one-half years.

No notice of appeals appears in the record. Such notice, given in open court and entered of record, is essential to the jurisdiction of this court. See Article; 827, C.C.P., and cases cited in Vernon’s Ann. Tex.C.C.P., Vol. 3, p. 197; also Branch’s Ann.Tex.P.C., Sec. 588 and cases there cited.

The appeal is dismissed.

PER CURIAM.

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


text:
    LEADON et al. v. STATE.
    No. 21260.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    H. H. Wellborn, of Henderson, for appellants. '
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This case is before us without bills of exception or statement of facts. Furthermore, the transcript contains no notice of appeal. The appeal is, therefore, dismissed.


text:
    WILSON et al. v. STATE.
    No. 21261.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    H. H. Wellborn, of Henderson, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two and one-half years.

The record fails to show that appellants gave notice of appeal. Under the circumstances, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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


text:
    LEONARD v. STATE.
    No. 21226.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    No attorney for appellant.
    Lloyd' W. Davidson, .State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was jointly indicted with other parties in Martin County for the offense of burglary. Upon a separate trial he was given two years in the state penitentiary.

The proceedings appear to be regular. The record is before us without a statement of facts or bills of exception and nothing is presented for our consideration.

The judgment of the trial court is affirmed.


text:
    McCLAIN v. STATE.
    No. 21189.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    C. W. Falvey, of Lufkin, for appellant.
    Lloyd W.- Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Conviction is for passing a forged instrument; punishment, five years’ confinement in the penitentiary.

The indictment properly charges the offense. The record before us contains neither statement of facts nor bills of exception, hence no matter of procedure is presented for review.

The judgment is affirmed.


text:
    REYES v. STATE.
    No. 21227.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    W. E. Wilson, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, confinement in jail for ninety days.

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

The judgment is affirmed.

PER CURIAM.

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


text:
    BEARD v. STATE.
    No. 21161.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.

      W. D. Justice, H. B. Green, G. W. Allison, and R. H. Moore, all of Athens, for appellant.
    Harry Boyd, Co. Atty., of Athens, Tom Pickett, Dist. Atty., of Palestine, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is misapplication of public funds. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant’s, first complaint is that the trial court erred in declining to sustain his motion to quash the indictment based upon the following grounds:

(a) Because the offense is not charged with sufficient certainty to enable the defendant to plead a conviction or acquittal thereunder in bar of a subsequent prosecution for said offense.

(b) Because it fails to charge with sufficient certainty the particular money he is charged with having misapplied.

(c) Because it is not averred by whom the money was paid to the defendant so that he may be prepared to meet the same.

(d) Because it is not averred what the money was paid to him for, whether for court costs, trust fund, or for some other purpose, etc.

The indictment contains two counts. The first, under which he was convicted, omitting the formal parts thereof, reads as follows: “ * * * Pat Beard was then and there the District Clerk of said county, and as such officer, by virtue of said office, there had come into, and was then in his custody and possession, the sum of $50.-00 in money, of the value of $50.00, the same being then and there the property of said County, and the said Pat Beard did then and there fraudulently take, misapply and convert the same to his own use.”

Article 95 of the Penal Code, 1925, reads as follows: “If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other thing of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less than two nor more than ten years.”

It occurs to us that the indictment charges the offense under the statute and is sufficient. It seems to follow the form laid down by Willson in his Texas Criminal Forms, 4th Ed., page 13, Form 25. This form has been approved by this court in the following cases: Crump v. State, 23 Tex.App. 615, 5 S.W. 182; Tankersley v. State, 105 Tex.Cr.R. 220, 288 S.W. 221; Steiner v. State, 33 Tex.Cr.R. 291, 26 S.W. 214. We therefore overrule the appellant’s contention.

Appellant next complains of the action of the trial court in overruling his application for a continuance based on the absence of certain witnesses therein named, who resided at or near Red Schute in the State of Louisiana, and also because of the absence of Tom Beard and his wife, Earnestine Beard, who resided in Smith County, Texas, by whom he claims he could prove, and would prove if present in court, that the appellant was not at Athens in Henderson County on the day of the commission of the alleged offense, but that he was in the State of Louisiana. The indictment was returned against the appellant at the September term, A. D., 1939, charging him with having committed the offense in the County of Henderson, State of Texas, on or about the 3rd day of January, 1939. Appellant knew from the charge in the indictment that the State would expect to prove that he committed the offense on or about the 3rd day of January, A. D., 1939, hut he made no effort to take the depositions of the witnesses in the State of Louisiana to prove by them the facts which he claims he could prove. Consequently, appellant failed to exercise that degree of diligence required of him by law. See Qualls v. State, 131 Tex.Cr.R. 606, 100 S.W.2d 711; Weaver v. State, 98 Tex.Cr.R. 474, 266 S.W. 408; Huffman v. State, 107 Tex.Cr.R. 188, 296 S.W. 313.

With reference to the witnesses, Tom Beard and his wife, Earnestine Beard, it appears from the record that they attended court and testified in behalf of the defendant on the trial of this cause. Consequently no error is reflected in the ruling of the court with respect to said witnesses.

By Bill of Exception No. 4 appellant complains of the action of the trial court in declining to peremptorily instruct the jury to return a verdict of not guilty for the following reasons:

(1) Because the evidence is insufficient to support his conviction.

(2) Because the State has failed to prove that the money which the defendant is charged with having misapplied or converted were funds belonging to fienderson County.

(3) Because the State failed to prove that the fine assessed against Bill Kirkwood which the appellant is alleged to have misapplied and converted were funds that belonged to Henderson County.

We are not in accord with the appellant’s contention. The record contains the indictment against Bill Kirkwood in cause No. 11,050 in which he was charged with driving a motor vehicle upon the public highway in Henderson County, Texas, while intoxicated. The judgment of conviction showed that Kirkwood was awarded a jail sentence of five days and a fine of $50. This judgment was entered “9/5/38”.

The State proved by F. T. Aunspaugh that on the 31st day of December, A. D., 1938, he was at the Koon Kreek Klub on a hunting and fishing trip; that Bill Kirk-wood was there with him at the time; that Homer Williams, a deputy sheriff of Henderson County, came there to collect the fine and costs assessed against Kirkwood-; that he (Aunspaugh) gave his check in the sum of $75 to the deputy sheriff in payment of the fine and costs due by Mr. Kirkwood. The check in question was then introduced in evidence.

Homer Williams, the deputy sheriff, testified in substance that the first time he met Mr. Aunspaugh was about the last of December, 1938, at the Koon Kreek Klub; that Mr. Aunspaugh was in company with Bill Kirkwood; that he at the time had a capias pro fine for Bill Kirkwood. From the testimony of the witness we quote: “I found him a Koon Kreek, talking to Mr. Aunspaugh. Mr. Aunspaugh at that time gave me a check. The check was for a fine for Bill Kirkwood. I cashed the check. * * * The endorsement on the back is my endorsement. I cashed it at the First National Bank of Athens, Texas. * * * I got the amount of $75.00, in money, on the check. * * * I turned that money over to John Karnes, the office deputy.”

John Karnes testified that he was a deputy sheriff of Henderson County, Texas, at the time in question and his duties included the handling of the money in the office of the sheriff’s department; that on the 3rd day of January, A. D., 1939, he had a transaction with the defendant, Pat Beard, who, at that time, was serving as District Clerk in and for said county. From the testimony of the witness we quote: “I paid Pat ($55.50) Fifty-five Dollars and Fifty Cents out of the Bill Kirkwood fine. * * * I paid him because that was the proper channel for it to go through. * * * I have a receipt from Pat Beard showing that I paid him that money.”

The receipt bearing date January 3, 1938, was offered in evidence and reads as follows :

Received of Sheriff’s Office
Fifty-Rive & 50/100.Dollars
Bill Kirkwood's Fine, #11050.
$55.00. Pat Beard, Dist. Clk.”

In addition to the above and foregoing facts, it was admitted by and on behalf of the appellant that he was the duly elected and qualified District Cleric within and for the County of Henderson on the 3rd day of January, A. D., 1939. Moreover, there was other testimony adduced by the State showing that the appellant had failed to pay said money into the County Treasury; that he admitted to the County Auditor and to the Commissioners’ Court that he was behind with the remittances of the county funds to the County Treasurer in the approximate sum of $1,160. This is in substance the State’s case.

It is true that appellant took the witness-stand and denied that he received any money from the sheriff’s office on the day in question or that he admitted to the County Auditor or to the Commissioners’ Court that he had taken and converted money which belonged to the County of Henderson. He also denied that he was in the town of Athens in Henderson County on the day in question. It is obvious from the testimony above detailed that the evidence is sufficient to justify and sustain the jury’s conclusion of the appellant’s guilt. We therefore overrule this contention.

By Bills of Exception Nos. 5 and 6 appellant complains because the court declined to submit to .the jury two special requested instructions. We have examined the same, together with the court’s main charge and reached the conclusion that no error was committed by the trial court in declining to submit the special requested instructions.

Appellant next complains of the court’s action in overruling his motion for a new .trial in which he re-urges all the matters heretofore complained of. We see no peed of entering upon a lengthy discussion thereof as-no error seems to be alleged which would have required the court to grant a new trial.

By Bills of Exception Nos. 8, 9 and 10, appellant complains: first, of the admission of evidence as to the number of automobiles he had purchased from January 1, 1937 (when he first qualified as District Clerk) up to within a short time prior to the return of the indictment in this case; second, because the court permitted the State to offer in evidence the indictment against Bill Kirkwood in Cause No. 11,050, wherein the defendant (Bill Kirkwood) was charged with unlawfully driving an automobile upon the public highway in the County of Henderson and State of Texas, while intoxicated; and, third, because the court permitted the introduction in evidence of the check given by F. T. Aunspaugh to Homer Williams in payment of the fine and costs adjudged against Bill Kirkwood in Cause No. 11,050 pending in the District Court of Henderson County, Texas. We do not believe that the trial court committed any error in the admission of the testimony complained of. The indictment against Bill Kirkwood upon which he was tried in the District Court of Henderson County, Texas, charging him with having unlawfully operated an automobile upon the public highway in said county and state, was admissible to show that there was a charge pending against Bill Kirkwood, and the subsequent introduction of the judgment showing what disposition had been made of the case was clearly admissible in evidence to establish the fact that there was a fine assessed against Bill, Kirkwood upon the trial of said cause. The introduction of the check was certainly harmless inasmuch as Mr. Aunspaugh had already testified that he gave a check to Homer Williams, the deputy sheriff, in the sum of $75 in payment of the fine and costs. This check sustained the testimony of Aunspaugh and Homer Williams and was harmless under the' circumstances of this case. The fact that appellant had owned three automobiles from January 1, 1937, up to a time shortly before the return of the indictment tended to show that he was rather extravagant in the expenditure of money which the legitimate salary of his office would hardly justify.

From what we have said, it follows that the judgment of the trial court should be, and the same is hereby in all things, af- ' firmed.

PER CURIAM.

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


author: ALEXANDER, Justice.

text:
    NEW HOME SEWING MACH. CO. v. WITHROW.
    No. 2252.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1940.
    Rehearing Denied Oct. 31, 1940.
    Renfro Speed, of Teague, for appellant.
    Geppert, Geppert & Victery, of Teague, for appellee.
   ALEXANDER, Justice.

This suit was brought by New Home Sewing Machine Company against W. W. Withrow to recover the sum of $393.70, being the balance claimed to be due for the sale price of certain sewing machines alleged to have been sold to the defendant under a written contract. The defendant contended that he had bought the machines under an oral contract, by the terms of which'- he was to pay a stipulated price for such of the machines as he was able to sell at retail, with the right to return the remainder of the unsold machines. He alleged that he had been induced to sign the written agreement sued on upon a false representation of plaintiff’s agent that it embodied the terms of the oral contract previously entered into. He tendered the contract price of the machines that he had sold and offered to return the unsold machines. A trial before the court without a jury resulted in judgment in favor of plaintiff for the sum of $106.30, being the unpaid balance due on the machines that had been sold, and for the title and possession of the six machines that had not been sold by Withrow. The plaintiff appealed.

The trial court found the facts as alleged by the defendant and appellant does not seem to challenge the correctness of this finding. It is appellant’s contention that since it did not pray for judgment for the title and possession of the unsold machines, the judgment of the court granting' such relief is fundamentally wrong.

It is a very well established rule that in determining the relief which may be accorded, it is proper to take into consideration the pleadings of both parties, and that if either party prays for relief and shows himself entitled thereto by the evidence, the court may grant it notwithstanding the pleadings of the opposite party. 25 Tex. Jur. 511. The defendant alleged that the unsold machines belonged to the plaintiff. He tendered such machines to the plaintiff, together 'with the contract price of such of the machines as he had sold and prayed that he be discharged. Regardless of whether such pleading was sufficient to authorize a judgment in favor of the plaintiff for such machines, it was certainly sufficient to authorize a judgment discharging the defendant upon delivery of such unsold machines, together with the money tendered by the defendant into court. At most, the judgment is merely more favorable to the plaintiff than it prayed for, and it is a well settled rule that a plaintiff cannot complain on appeal of a judgment merely because it is more favorable to him than he was entitled to under the .pleadings and evidence. 3 Tex.Jur. 1274; Texas Trunk R. Co. v. Johnson, 86 Tex. 421, 25 S.W. 417, par. 2; Celada v. A. Mathias & Co., Tex.Civ.App., 269 S.W. 459, par. 8.

There is no error in the judgment appealed from, and the judgment of the trial court is affirmed.


author: NORVELL, Justice.

text:
    PAHL v. BRAUNSCHWEIG.
    No. 10726.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1940.
    Rehearing Denied Oct. 30, 1940.
    Church & Steger, of San Antonio, for appellant.
    W. B. Halbig and J. M. Woods, both of San Antonio, for appellee.
   NORVELL, Justice.

This is a suit upon a promissory note brought by appellee, Charles Braunsch-weig, as plaintiff below, against Hermine Harbarth and Alfred J. Pahl. From an adverse judgment, Pahl alone has appealed. His defense here, and in the court below, was that the note in question was delivered to appellee upon a condition that he should not be liable thereon unless and until Walter Har-barth, a son of his co-defendant also signed the note. Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256. The trial court expressly found that no such condition was attached to the delivery of the note and a question of the sufficiency of the evidence to support the trial court’s finding is presented here.

It appears that shortly before the note in question was executed Mrs. Hermine Harbarth, an elderly woman, was in financial difficulties and, among other obligations, owed $3,000 upon a farm in Guadalupe County. The appellant, Pahl, was also liable on this obligation. Mrs. Plar-barth applied to appellee for a loan of $1,000, which he agreed to make, provided she would obtain the signatures of one or two property owners to the obligation: At a meeting at which Mrs. Harbarth, appellant, appellee and a notary public were present, the appellee produced a promissory note which he had prepared for the signature of three persons. This note was signed by Mrs. Harbarth and the appellant and is the note sued on in this case. With reference to what took place at this meeting, the appellant testified as follows:

“A. Pie (appellee) asked me, ‘Are yOu willing to sign this note for Mrs. Plar-barth,’ as a co-maker, or favor, or whatever you might call it.

“Q. What did you say? A. I told him, yes, under the condition that her son Walter signed it.

“Q. Did you use those words, ‘under the condition that her son Walter would sign it’ ? Did you use those exact words ? A. Yes, sir.

“Q. You told him you would sign it under the condition that her son Walter would sign it? A. Yes, sir.

“Q. You used those very words? A. Yes, sir.

“Q. What did Mr. Braunschweig say to that? A. He called Mrs. Harbarth’s attention across the room — she was sitting across the way' — and said, ‘You understand, Mrs. Harbarth, that Walter is supposed to sign this note too ?’ and she said, ‘Yes; he will be in town tomorrow and I will have him come by and sign it.’

“Q. Did you then sign the note? A. Yes, sir.”

The appellee’s testimony in regard- to what occurred at this meeting was as follows :

“Q. Did Mr. Pahl say, at the time of the execution of the note or prior to its execution, anything about any other security on the note? A. No, sir. He never opened his mouth that evening or any time prior.

“Q. Did he state to you or make known to you that he had signed the note under any condition whatever? A. No, sir ⅜ ¾* ⅜

“Q. I will ask you whether or not Mr. Pahl, at any time prior to the execution of that note or at the time of its execution, made known to you that he was executing the note upon the condition that another person signed the note? A. No, sir.”

The appellee also testified that immediately after the note was executed he delivered a check to Mrs. Harbarth for the proceeds thereof. This testimony is disputed by the appellant. It is clear, however, that the appellee actually paid the consideration for the note.

After the note had been executed the appellee delivered the note to Mrs. Har-barth so that the signature .of her son, Walter Harbarth could be secured. The son, however, refused to sign the note and it was redelivered to the appellee.

The evidence in some respects indicates that the delivery of the note may have been conditional, such as the fact that it was prepared for the signatures of three persons, and after execution it was given to Mrs. Harbarth for the purpose of securing her son’s signature. On the other hand, the trial court expressly found upon conflicting -evidence that the proceeds of the note were delivered immediately after Mrs. Harbarth and Pahl had executed the same. The fact that Pahl was also obligated with Mrs. Harbarth upon another obligation also tends to discredit the theory of a conditional delivery. The only witnesses who testified as to what took place at the time of the execution of the note were the appellant and appellee. Their testimony, as above set out, was directly conflicting. It is our opinion that in this state of the record we are unauthorized to disturb the findings of the trial court. Seaside Taxi Service v. Lyle, Tex.Civ.App., 123 S.W.2d 372; Imperial Life Ins. Co. v. Mooney, Tex.Civ.App., 122 S.W.2d 204.

The judgment of the trial court will therefore be affirmed.


author: O’QUINN, Justice.

text:
    MIMS v. SELTZER et ux.
    No. 3728.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 19, 1940.
    Rehearing Denied Oct. 23, 1940.

      Xavier Christ and B. C. Johnson, both of Port Arthur, for appellant.
    Kemper, Hicks .& Cramer, of Houston, for appellee.
   O’QUINN, Justice.

This is an appeal from an order of the 58th district court of Jefferson County, Texas, sustaining a plea of privilege.

. Appellant, Mims, as surviving husband and sole heir of Nell Mims, brought this suit for damages against appellees, I. Seltzer and his wife, Mrs. I. Friedman Seltzer, residents of Dallas, Texas, alleging that while he and his wife were riding as guests of Mrs. Friedman, now Mrs. Seltzer, in her automobile, through the negligence of Mrs. Friedman, his wife, Nell Mims, sustained injuries resulting in her death.

Appellees filed in due form their plea of privilege to be sued in Dallas County, Texas, the admitted county of their residence. Appellant duly filed his controverting affidavit making his original petition a part of same, and made other allegations supporting venue in Jefferson County under Section 9 of Article 1995, R.S.1925, in effect that the acts of Mrs. Friedman just prior to the occurrence causing the death qf Mrs. Mims amounted, in law, to the commission of a crime or trespass.

On a hearing of the plea and contro- ' verting affidavit, the court sustained the plea of privilege in his judgment finding and stating that as a matter of law the evidence did not raise the issue of gross negligence on the part of Mrs. Friedman. Appellant brings this appeal.

The facts are few and without dispute. The parties involved all lived in Port Arthur, Texas, at the time of the occurrence. About 10:30 P. M. on May 9, 1939, Mr. and Mrs. Neil Mims, and Mrs. Segal were guests of Mrs. I. Friedman, a widow, on her invitation taking a pleasure ride in her automobile in north Port Arthur. They were riding in a V-8 Ford Sedan which was practically new, and in prime condition. Mrs. Friedman (now Mrs. Seltzer) was driving and Mrs. Mims was in the front seat with Mrs. Friedman. The others, Mr. and Mrs. Segal and appellant, Mims, were in the back scat. In the course of the driving they came upon what is known as the “Kitchen Road” which ran west-wardly to its intersection with the “Old Port Arthur-Beaumont” highway. The Kitchen Road had its terminus in the “Old Port Arthur-Beaumont” highway intersecting it at right angles. The highway ran practically north and south and parallel with and adjacent to the west line of a railroad right of way. The rail track is some four or five feet above the level of the Kitchen Road, and the road crossed the track at grade with inclines on either side. There was nothing to obstruct the view either way in approaching the track. The Beaumont-Port Arthur highway ran some fifteen feet from the railway parallel with the track and the crossing of the Kitchen Road upon which the parties were traveling crossed the track at right angles and continued some fifteen feet to intersect the highway and there. was a way turned to the right and to the left after making the track crossing so as to go into the Beaumont-Port Arthur highway either north toward Beaumont or south toward Port Arthur. There was a water ditch along the west side of the highway some two or three feet deep and on the west side of the ditch approximately opposite the center line of the Kitchen Road, there was a guy wire extending upward to the south at an angle of some 45 degrees to a light pole of the electric line along the west side of the right of way. The automobile was traveling at about ten miles per hour as it crossed the railway track and came down the incline toward the Beaumont-Port Arthur highway. The lights of the car clearly disclosed the highway and surrounding conditions. If one after crossing the track continued straight ahead he would land in the ditch above mentioned — to avoid this the road curved to the right and also to the left so that any one could travel from the Kitchen Road onto and into the highway going either north or south. Appellant who was riding in the back seat observing that Mrs. Friedman was proceeding in a straight line after crossing the track toward the ditch, and was not making any attempt to turn either way, or . to stop the car warned her that she was going to run into the ditch whereupon she says she became excited, lost control of the car, and it ran into the ditch, striking the guy wire on the opposite edge of the ditch which threw the car backward catapulting Mrs. Mims through the windshield of the car, inflicting severe and dangerous wounds on her, which resulted in almost immediate death. This suit resulted.

As stated above, the accident occurred at about 10:30 P. M. on May 9, 1939, in Port Arthur, Jefferson County, Texas. Mrs. Friedman was a widow, and the owner and driver of the car. The other parties in the car were her guests. October 14, 1939, Mrs. Friedman married Mr. Seltzer and moved to Dallas, Texas. This suit was brought under Article 6701b, Vernon’s Annotated Civil Statutes of Texas, known as the guest statute. It reads :

“Article 6701b, Sec. 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of. said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

“Sec. 2. This1 Act shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective , purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier, or by such owner or operator.”

There is • no contention that the accident was intentionally caused. The contention is that Mrs. Friedman in her driving of the automobile was heedless and reckless in the management of same. That her driving the car straight into the ditch when the same was plainly to be seen by the car lights, and nothing to distract her attention, and this in the face of the warning given her by Mr. Mims that she was going to land in the ditch, were acts of gross negligence on the part of Mrs. Friedman. When the car was within a few feet of the ditch, Mr. Mims said to her, “Mrs. Friedman, be careful, you are going to run into the ditch.” Mrs. Friedman testified that when Mr. Mims told her that she was going to run into the ditch, that she became excited and lost control of the car and it ran into the ditch, contacted the guy wire and rebounded. She was running very slow at the time, only about ten miles per ' hour. All the evidence is that Mrs. Friedman “had been driving very carefully.” Mr. Mims testified that at the time the c.ar passed over the railway track, which was within some fifteen or twenty feet of the ditch, the car “was going very slowly— slow enough that I could have jumped out and closed the door easily, without any effort at all.” They were all good friends and neighbors. . Mrs. Friedman herself received severe injuries. Her last words, while she was on the stand testifying, were: “I would rather it would have happened to me than Mr. Mims’ wife.”

We do not think there is any evidence in the record to indicate either a heedless or reckless operation of the car by Mrs. Friedman. The fact that she became alarmed and lost control of the car when Mr. Mims told her that she was about to run into the ditch -does not indicate heedlessness or recklessness. It was sudden fright, or loss of ability to think clearly. The law is well settled that mo-' mentary thoughtlessness, inadvertence, or error of judgment does hot constitute “heedlessness or reckless disregard of the rights of others” within the meaning of our guest statute. For appellant to have been entitled to recover, he must have shown that Mrs. Friedman was guilty of gross negligence in the operation of her car. Gross negligence is that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it. Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262. Under the facts of this case Mrs. Friedman was not guilty of gross negligence as that term is defined in our jurisprudence. Pfeiffer v. Green, Tex.Civ.App., 102 S.W.2d 1077; Glassman v. Feldman, Tex.Civ.App., 106 S.W.2d 721; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Hamilton v. Perry, Tex.Civ.App., 109 S.W.2d 1142; Linn v. Nored, Tex.Civ.App., 133 S.W.2d 234.

The judgment is affirmed.


author: ALEXANDER, Justice,

text:
    JOHN F. GRANT LUMBER CO. v. HUNNICUTT et al.
    No. 2228.
    Court of Civil Appeals of Texas. Waco.
    Oct. 17, 1940.
    Wood, Morrow, Gresham & McCor-quodale and Walter E. Boyd, all of. Houston, for plaintiff in error.
    J. G. Minkert, of Bryan, for defendants in error.
   ALEXANDER, Justice,

This is a suit to foreclose an abstract of judgment lien. A trial before the court resulted in judgment for the defendants. The plaintiff has appealed.

Appellees have not favored us with a brief nor otherwise attempted to justify the judgment of the court. The only indications found in the record as to the apparent theory upon which judgment for appellees was rendered is that recited in the judgment.

One of the grounds recited in the judgment is that Dr. R. J. Hunnicutt, the judgment debtor, had; in good faith, conveyed the land in question to the other appellees in satisfaction of an old indebtedness to them, after the abstract of judgment had been recorded. Under our statutes, R.S. art. 5449, Vernon’s Ann.. Civ.St. art. 5449, the recording of an abstract of judgment creates a lien upon all of the debtor’s property within the-county from the time it is recorded' and indexed. Necessarily, such lien is superior to the rights of subsequent purchasers and lienholders, for otherwise it-would be of practically no value. 26 Tex. Jur. 395; Firebaugh v. Ward, 51 Tex., 409, 413; Estelle v. Hart, Tex.Com.App., 55 S.W.2d 510, par. 11. Therefore, under well-settled rules, the judgment debt- or could not defeat the statutory lien by such a conveyance to his creditors, after-the abstract of judgment had been recorded.

The second ground recited in the judgment is that there was a variance between the pleadings in the original suit in Harris county, where the judgment was obtained, and the terms. of the judgment that was rendered thereon. It was recited that the pleadings in the original suit declared on a note bearing eight per cent, whereas the judgment bore interest; after its date at ten per cent per annum.. We have ' not undertaken to determine-whether such a variance would render the judgment subject to collateral attack. It is sufficient to say that the pleadings in the original suit were not before the court upon the trial of this case. Such pleadings cannot be found either in the transcript or the statement of facts in this case. Since such pleadings were not before the court, there was no evidence of the alleged variance between the pleadings and the judgment rendered thereon in the original suit. Therefore, the judgment cannot be sustained on this ground.

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


author: BROWN, Justice.

text:
    UNITED BENEFIT LIFE INS. CO. OF OMAHA v. ZWAN.
    No. 14122.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1940.
    Chrestman, Brundidge, Fountain, Elliott & Bateman, of Dallas, for appellant.
    Butler & Price, of Tyler, for appellee.
   BROWN, Justice.

Appellee, Zwan, obtained a life insurance policy from appellant, United Benefit Life Insurance Company, in the sum of $5,000, and on written application of the insured, the contract was enlarged by a “rider”, or supplemental contract, providing for benefits for total and permanent disability resulting from bodily injuries or disease. The contract entered into by the “rider” is:

“Benefits for Total and Permanent Disability.

“Insuring Clause — United Benefit Life Insurance Company (hereinafter called Company) hereby insures (subject to all the provisions and conditions hereinafter contained) Abdallah Moron Zwan, of Crowley, Louisiana (hereinafter called Insured), against permanent and total disability beginning while this endorsement is in full force and before the Insured shall have attained the age of sixty (60) years, and resulting from bodily injuries sustained or disease contracted while this endorsement is in full force and it is understood and agreed that this endorsement is made a part of and attached to Life Insurance Policy. No. 136982 issued by this Company upon the life of the insured.

“Disability Benefits. . Upon receipt of due proof of such permanent and total disability of the Insured (provided that such disability shall already have continued uninterruptedly for a period of at least four months), the Company, during the continuance of such disability, will

“Waiver of Premiums — -Waive the payment of each premium falling due after the commencement of such disability, provided the first premium to be waived shall not be a premium which fell due more than six months prior to notice of claim, and

“Monthly Income — Pay to the Insured a monthly income of $10.00 for each $1,-000.00 of the face amount of said policy, such monthly income to be paid for each completed month of such disability, beginning thirty days prior to notice -of claim.

“Standard Provisions.

“1. Total disability is defined to be total incapacity (resulting from bodily injury or. disease) to engage in any occupation for remuneration or profit.

“2. Total disability which has been continuous for not less than four months, shall be presumed permanent but only for the purpose of permitting commencement of liability hereunder.

******

“4. Written notice of claim must be given to the Company during the-lifetime of the Insured and during the period of disability. Failure to give such notice shall invalidate any claim unless it shall be shown not to have been reasonaby possible to give such notice and that notice was given as soon as was reasonably possible.

“Miscellaneous Provisions.

“a. The Company may from time to time in its discretion, require due proof of the continuance of disability for which claim shall have been allowed, including examination of the Insured at reasonable intervals. If the Insured shall fail to furnish such proof, or if the Insured shall become able to perform any work or engage in any occupation or business for compensation, -or profit, the monthly income herein provided shall immediately cease as of the end of the last completed month of total disability and all premiums thereafter due shall be payable according to the terms of said policy and this endorsement.

“b. This endorsement shall not cover, and neither waiver of premium nor payment of monthly income shall b.e made if, on the date disability begins or on the date the injuries or sickness causing disability are sustained or contracted, the said policy shall be in-force by virtue of any non-rfor-feiture provision thereof; or if disability results from participation in aeronautics as a passenger, pilot or otherwise; or is sustained while Insured is in the Military or Naval service in-time of war; or if such disability shall result wholly or in part frominjuries intentionally inflicted by the Insured.

“c. No provision of said policy shall be held or deemed to be a part hereof, unless such provision be specifically referred to herein.

“d. In no event shall monthly income be payable for any part of the first three months of such permanent and total disability, or for any fractional part of a month thereafter.

“e. This endorsement may be cancelled by the Insured on the due date of any premium, by written request to the Company, together .with the return of this endorsement. If the Insured is a female this endorsement may be cancelled at any time by the Company after her marriage by written notice and refund of the unearned portion of any premium covering the unexpired term of this endorsement. The beneficiary named in said policy shall- have no right nor interest in or under this endorsement and the Insured may at any time release the Company from any and all liability then existing or thereafter accruing hereunder.

“f. The consideration for this endorsement is the application for said policy and the statements and answers therein contained which are the basis for the issuance hereof, and the quarter-annual premium of Six & 65/100 ($6.65) Dollars, payable concurrently with, and under the same conditions as the regular premium for said policy. If premiums continue to be payable under the terms of said policy after the Insured attains the age of sixty years, this endorsement shall, nevertheless, terminate and the additional premium on account hereof shall cease to be payable, both on the first premium due date after the Insured’s sixtieth birthday. This endorsement shall automatically terminate and be of no further force or effect if any premium on said policy of on this endorsement shall remain unpaid at the end of any period of grace allowed under said policy, or if said policy be surrendered or converted under one of its non-forfeiture provisions or otherwise terminated and thereafter the premium above designated shall be no longer payable. The acceptance of any premium hereunder after the Insured’s sixtieth birthday shall not be construed as a waiver by the Company, and shall impose no liability hereunder except the obligation to refund the amount of such premium plus interest thereon at the rate of 3-1/2 per cent per annum.

“g. The provisions of said policy governing reinstatement shall apply hereto except that this endorsement may be reinstated only concurrently with said policy; and as reinstated it shall cover only such permanent and total disability as shall result from bodily injuries sustained or sickness contracted after the date of such reinstatement.

“h. If said policy contains any convertible feature, the Insured may not convert the policy to a higher premium plan during the continuance of disability.

“i. If the aggregate monthly amount payable to the Insured on account of disability under this contract and all other insurance contracts held by him, exceed eighty per cent of his monthly earned income at date of disability, there shall be a proportionate reduction of income payments hereunder accompanied by return of premiums paid on the amount of such reductions. The average monthly income at date of disability shall be determined by computing the mean average earned income per month during the twelve calendar months immediately preceding the date of beginning of disability.

"j. No change in, nor alteration of this endorsement shall be valid unless endorsed hereon and signed by an executive officer of the company.

“In witness whereof, the United Benefit Life Insurance Company has caused this endorsement to be executed this 3rd day of December, 1935.”

In appellee’s application for such insurance he specifically stated that he then had such insurance in two other companies.

Claiming to have become totally and permanently disabled, appellee made his proof and appellant began to pay him, under the provisions of his contract, indemnity at the rate of $50 per month, but stopped such payments, whereupon appellee brought suit in a justice of the peace court for three monthly instalments then alleged to be past due, and the statutory damages and attorney’s fees. Having recovered in the justice of the peace court, an appeal was taken to the County Court, in which, by a trial de novo, the County Court of Smith County (a jury being waived) rendered judgment for appellee.

The cause was appealed to the Texarkana Court of Civil Appeals and was by the Supreme Court transferred to us.

Seven propositions, under six assignments of error, are presented.

The first contends that: “In view of the policy provision that, if the monthly benefit payable thereunder and under all other insurance contracts held by him exceed 80 per cent of his monthly earned income at date of disability, there shall be a proportionate reduction of income payments thereunder, the burden of proof was on plaintiff to prove that such aggregate monthly benefits did not exceed 80 per cent of his monthly earned income at date of disability; and, since he made no showing whatever in that respect, he was not entitled to recover; and the court erred in rendering judgment in his favor in any amount.”

The second proposition contends that since the contract contains the provision mentioned, “even if the burden was on the defendant to prove that such aggregate monthly benefits did exceed 80 per cent of plaintiff’s monthly earned income at date of disability, defendant satisfied such burden by questioning plaintiff, who was the sole repository of the facts, in detail concerning' his monthly earned income and providing him every reasonable opportunity to divulge such information, and plaintiff declined to do so. Therefore, the court erred in rendering judgment in favor of plaintiff for any amount.”

The third proposition contends that such a provision in the contract as that above mentioned, “is reasonable and should be given effect by the courts.”

The fourth contends that since, “The petition did not allege that the disability did not come within any of the exceptions, limitations or exclusions from liability included in the policy endorsement sued on * * * the court erred in overruling appellant’s general demurrer.”

The fifth contends that in the face of such provisions in the contract, “appellee neither alleged nor proved that the disability did not come within such exceptions, limitations and exclusions from liability”, therefore the plaintiff “showed no right of recovery, and it was error for the court to render judgment in his favor for any amount.”

The sixth and seventh propositions contend that appellant’s plea in abatement bottomed on the provision in the policy that the insurer may from time to time require due proof of the continuance of liability, including examination of the insured at reasonable intervals, and that if the insured fails to furnish such proof the monthly income shall cease, and it appearing that appellant made a reasonable request of appellee for an examination by a Dr. Cox of Dallas, Texas, and offered to pay all reasonable expenses of such trip, and appellee having refused to comply with such request, such plea was well taken; arid that the trial court erred in rendering judgment for appellee, under such circumstances.

We are constrained to sustain the first, second and third propositions.

It is true that, in his application for the indemnity insurance, appellee informed appellant that he was carrying such similar insurance with other companies, but it is likewise true that appellee contracted in unambiguous and definite language that if the aggregate monthly amount payable to him on account of disability under his contract and all other insurance contracts held by him exceed 80 per cent of his monthly earned income at the date of his disability, there should be a proportionate reduction of income payments under his contract and that there should be returned to appellee the premiums paid to the insurer on the amount of such deductions.

We see nothing unreasonable in this provision of the contract and it is so worded that the insured receives exactly what he' pays for. International Travelers’ Ass’n v. Gunther, Tex.Com.App., 280 S.W. 172 (approved by Supreme Court); Inter-Ocean Casualty Co. v. Lenear, Tex.Civ.App., 95 S.W.2d 1355, writ dismissed.

We see no reasonable distinction between a provision for such a deduction where the insurance is carried without notice and a provision such as is before us which clearly shows notice of other similar insurance carried with other companies.

We believe that the character of insurance carried by appellee is that which is provided for an active man capable of earning a livelihood, who, since he entered into the contract, has suffered disability to earn a livelihood.

Appellee, by his own testimony, discloses that he made an income tax return to the United States Revenue Collector, which covers the period provided for in his contract, and when called upon to produce the proof concerning his ■ income from all sources, he failed to produce either a copy, of his income tax statement or any other satisfactory proof of his income and earnings. He rather evaded the questions, or else gave very general answers thereto.

In Black’s Law Dictionary, 2nd Edition, we find that “earnings” are defined as, “the gains of the person derived from his services or labor without the aid of capital”. The text cites Brown v. Hebard, 20 Wis. 326, 330, 91 Am.Dec. 408, and Hoyt v. White, 46 N.H. 45, 48.

The U. S. Revenue Act, following such a conception of earned income, declares: “ ‘Earned income’ means wages, salaries, professional fees, and other amounts received as compensation for personal .services actually rendered.” 26 U.S.C.A. Int. Rev.Code, § 25(a) (4).

We are also of opinion that under the provisions of the contract sued upon it was necessary for appellee both to plead and prove a state of facts which show him entitled to the entire monthly payment of $50. International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851.

In this connection, we are of opinion that appellee should plead and prove, as is held in the case just cited, that his claim ior disability does not come within any of the exceptions, limitations or exclusions from liability, which are provided for in the contract, and the fourth and fifth propositions are therefore well taken.

We see no merit in the sixth and seventh propositions.

We do not believe that appellee is required, under his contract, to make a trip to Dallas or to any other place, away from his home, for the purpose' of being examined. He has been examined by several physicians and they are in accord on the question of his disability.

There does not appear to be an “insuperable barrier” to a recovery by appellee, and we reverse the judgment of the trial court and remand the cause for a new trial.


author: PER CURIAM.

text:
    CLANTON et al. v. FIRST STATE BANK IN CALDWELL.
    No. 11153.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 3, 1940.
    Rehearing Denied Oct. 17, 1940.
    Al L. Crystal, of Caldwell, for appellants.
    W. J. Alexander, of Caldwell, for ap-pellee.
   PER CURIAM.

Appellee has filed in this court its motion to require new supersedeas bond, or in the alternative to dismiss the appeal herein for want of jurisdiction.

Upon an investigation of the record to determine the merits of the motion, we find that this court is without jurisdiction to hear this appeal because the super-sedeas bond — no other appeal bond appearing to have been filed — -was not filed within the time allowed by law for the filing of appeal bonds.

R.S. Article 2253, as amended in 1927, Vernon’s Ann.Civ.St. art. 2253, provides: “An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county.”

It is not made to appear that appellants herein come within any exception to the above-quoted ' statute. It does appear that the term of court at which the judgment below was rendered began on May 13, 1940, and expired on June 15, 1940; that motion for new trial was overruled on June 15, 1940; and that the supersedeas bond was filed on July 24, 1940, 39 days after judgment was entered overruling motion for new trial and 39 days after the term of court had expired.

It follows that this jurisdictional requirement not having been met, this court must dismiss this appeal for want of jurisdiction. Article 2253, Vernon’s Annotated Texas Civil Statutes; Small v. Brownfield, Tex.Civ.App., 127 S.W.2d 966, writ of error refused; Labansat et al. v. Cameron County et al., Tex.Civ.App., 143 S.W.2d 94.

Under' the above conclusions it is unnecessary for this court to determine the merits of appellee’s motion. The motion will therefore be dismissed.

•Appeal dismissed for want of jurisdiction;. motion to require new supersedeas bond, etc., dismissed.


author: O’QUINN, Justice. '

text:
    BEAUMONT CITY LINES, Inc., v. MAHONEY et ux.
    No. 3707.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 17, 1940.
    Rehearing Denied Oct. 23, 1940.
    Chas. S. Pipkin, of Beaumont, for appellant.
    J. A. Veillon and D. F. Sanders, both of Beaumont,, for appellees.
   O’QUINN, Justice. '

Appellees, W. P. Mahoney and wife, De-vena Mahoney, brought this suit against appellant, Beaumont City Lines, Inc., to recover damages alleged to have been received by Devena Mahoney while attempting to alight from a bus operated by appellant,- said damages alleged to have been caused by certain negligent acts of appellant.

Appellant answered by general demurrer, general denial, various special denials, and specially that the alleged physical condition of plaintiff Devena Mahoney was the result of disease and not of any injury received by her on the occasion alleged. Appellant also answered that the injuries received by her on the occasion alleged were caused by her own negligent acts. On exception of appellees, appellant’s plea of contributory negligence was stricken from its answer.

The case wás tried to a jury upon special issues all of which were answered in favor of appellees, and judgment entered in their favor in the sum of $1,000. Motion for a new trial was overruled, and the case is before us on appeal.

On May 3, 1939, appellant owned and operated a number of passenger busses for the use of the public. On that day Devena Mahoney boarded a bus on Avenue C at Euclid street. She was to change busses at Park and Royal Streets. She paid the required fare. When the bus reached the point where she wished to change busses, she gave the signal and the bus stopped for her to get off. She was carrying a bundle of clothes which she had washed and was going to deliver. When the bus stopped she attempted to get off at the rear end, that being the place for colored passengers to alight. According to her testimony she had put one foot down on the paved street and had the other foot on the step of the bus when the driver started the bus forward and she fell on the curb of the pavement. She testified that she did not have time to get off before the bus started to move. She got off holding to the rod with one hand facing the bus — that is, she was getting off backwards, her face to the bus. The injuries alleged resulted from her fall so she testified. The acts of negligence alleged were: (a) Starting the bus while she was still on the bus step without giving her time to get off; (b) failure on the part of the driver of the bus to keep a proper lookout to discover that she was still on the step of the bus before starting same; (c) starting the bus suddenly without giving her any warning or signal that he was going to start the bus moving. These were submitted to the jury and were answered in favor of appellees.

Special issue No. 10, as given by the court to the jury, read:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate the plaintiffs for the damages, if any, sustained because of the injury, if any, the plaintiff Devena Mahoney, sustained proximately caused by the negligence, if any, of the driver of the defendant’s bus.

“In considering the above special issue No. 10, you may take into consideration the pain' and suffering, if any, she has suffered in the past, and the pain and suffering, if any, she will suffer in the future; the loss of earnings, if any, she has lost since the injury, if any, to the present time; and the decrease, if any, in her earning capacity in the future, but you will not consider any other ailments, if any.”

Appellant objected to this issue because “same is too general and permits the jury to speculate and take into consideration other injuries and damages, diseases and physical conditions not covered by the pleadings or evidence.” In other words, the effect of the objection was that the issue was too broad and permitted the jury to consider damages not plead. Plaintiff Devena Mahoney testified that she could not perform her household duties after the injury as well as she could before the injury; that her girls (she had three grown daughters) had to help her; that they did the “heaviest work.” She testified that before the accident she did washings for four or five other individuals and that she could not do so now; that she could not perform her household duties as well as she did before the injury. The prayer for relief was “that they have judgment over and against the defendant for their damages,” etc. Her loss of capacity to do her household work was a loss and damage to her husband W. P. Mahoney, her co-plaintiff, as well as to herself. There was no allegation in their petition of any loss or damage caused- by lack of capacity to do such work. The issue inquired what amount of money if paid to plaintiffs would reasonably compensate them for the damages suffered. We think it reasonably certain that the jury, in estimating what amount of money “would reasonably compensate the plaintiffs” for damage proximately caused by the injury, considered the loss to W. P. Mahoney, the husband, of ability on the part of his wife, Devena Mahoney, to perform her household duties. There being no pleadings to' support this loss or damage, if suffered, it could not be considered by the jury. The evidence of Devena Mahoney being produced on this phase of the case, and not warranted to be considered by the charge, and not excluded by the 'charge from -consideration, it is reasonable to conclude that same was considered by the jury in making their estimate of the damages found. We think the assignment must be sustained. Texas & N. O. Railway v. Crow, 121 Tex. 346, 48 S.W.2d 1106 (paragraph 5 of opinion).

Other assignments against the charge of thq court are presented but none of them are thought to show error.

For the error discussed, the judgment is reversed and the cause remanded for another trial.