author: WALKER, Chief Justice.

text:
    MARYLAND CASUALTY CO. v. ABBOTT.
    No. 3785.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 30, 1941.
    Rehearing Denied Feb. 12, 1941.

      Smith, Smith & Boyd, of Beaumont, for appellant.
    Adams, Hart & Daughtry, of Beaumont, for appellee.
   WALKER, Chief Justice.

This is a workman’s compensation case. For the opinion on the former appeal, see Maryland Casualty Co. v. Abbott, Tex.Civ.App., 131 S.W.2d 171, to which we refer for a general statement of the nature of the case and of the pleadings of the parties.

Appellee predicated his claim on the contention that, as an employee of the Texas Company, in the course of his employment, on August 31, 1937, while he and another employee, George Duggas, were lifting a heavy piece of timber, 4 by 4 and 20 feet long, Duggas dropped his end of the timber, thereby “jerked him down on a ditch bank or muddy slope.” His theory of the injury as plead was supported by the jury’s verdict finding the following facts: On or about the 31st day of August, 1937, while appellee and his fellow workman were carrying a timber, the fellow workman dropped his end of the timber, thereby causing appellee to sustain a personal injury “to his back over and along his spinal column in the region of his lumbar vertebrae, and muscles, nerves and tendons and ligaments of the lumbar region,” which said personal injufy was the producing cause of the injury to his back, lumbar vertebrae, muscles, etc. The personal injury suffered by appellee was an injury “sustained in the course of his employment with the Texas Company,” and resulted in a permanent, total incapacity to work and earn money. - The jury fixed appellee’s . average daily wage at $6.26 and found facts entitling him to a lump-sum settlement. On the verdict of the jury, appellee was awarded judgment for $6,869.60, from which appellant has prosecuted its appeal to this court.

Appellant contends that it was entitled to an instructed verdict on the grounds that there was no evidence raising the issue that appellee had suffered a total, permanent incapacity, and that the evidence did not show that appellee’s injury was a producing cause of his incapacity, if any. These contentions are overruled. Ap-pellee’s testimony clearly raised the issues that he was injured in the manner and at the time found by the jury, and that as a result of his injury he had suffered a total, permanent incapacity. Dr. Edward C. Ferguson, who treated appellee, testified: “I think he is totally disabled at the present time. His condition is worse than when I first saw him.”

Again, Dr. Ferguson gave the following testimony in answer to a hypothetical question which summarized appellee’s case history:

“A. I think that the change that you find in this man’s spine was brought about by that accident.
“Q. And why do you say that? A. The man had been working previous to this time right along. The changes in the joints of the spine, while they are more extensive, but they are similar to changes in the spraining of the ankle or turning 'of the ankle, you have hemorrhage, you have torn ligaments and muscles, and you have injury to the disks which you see in this picture, and the crippling may not be immediately, the pain may be severe, but the ultimate changes are progressive and it may be some time before the individual is thoroughly incapacitated, but these changes do come on and they are progressive, and when the circulation is disturbed in-these disks or in the backbone joints, they are spongy and light and the weight is on them, and they get bad and ultimately have a condition like this, and then the man is incapacitated and can not work.” -

This proposition was advanced by appellant on the former appeal and overruled. In this connection, all propositions challenging the verdict of the jury on certain special issues as being without support in the evidence and as against the overwhelming weight of the evidence are denied.

The following issue submitted by the court’s charge was not on the weight of the evidence: “From the preponderance of the evidence, do you find that the said personal injury, if any, sustained by W. B. Abbott on or about August 31, 1937, occurred when a fellow workman dropped a timber being carried by him and Abbott (if you have found a timber was being carried by them) ? ”

All issues upon which the answer to this question was predicated, as shown by our summary of the jury’s verdict, had been submitted to the jury in prior issues, which were answered in appellee’s favor. The following authorities support the-form and manner in which this issue was submitted: Traders & Gen. Ins. Co. v. Jenkins, Tex.Com.App., 141 S.W.2d 312, 315; Gordon v. McIntosh, Tex.Civ.App., 54 S.W.2d 177; Proctor v. Cisco & N. E. Ry. Co., Tex.Com.App., 277 S.W. 1047, 1048; Cannaday v. Martin, Tex.Civ.App., 69 S.W.2d 434; Texas Indemnity Ins. Co. v. Wingo, Tex.Civ.App., 47 S.W.2d 397; McClung Construction Co. v. Muncy, Tex.Civ.App., 65 S.W.2d 786; Stedman Fruit Co. v. Smith, Tex.Civ.App., 28 S.W.2d 622; 41 Tex.Jur. pp. 1133, 1134, 1136. If Sinclair Navigation Co. v. Kremlick, Tex.Civ.App., 129 S. W.2d 758, supports appellant’s contention, then it is our conclusion that the Kremlick case does not have support in the authorities. That case cites in its support Gordon v. McIntosh, Tex.Civ.App., 54 S.W.2d 177, which, as we construe it, supports the court’s charge.

The court did not err in refusing to submit the following special issue: “Do you find from a preponderance of the evidence that W. B. Abbott sustained a personal accidental injury while attempting to remove a waling from a drainage ditch ? ”

If it be conceded that this requested issue w'as raised by the evidence, appellant was not entitled to its submission, because an affirmative answer would not have' rebutted appellee’s contention that he was injured in the manner plead by him and found in his favor by the jury. 41 Tex. Jur., p. 1050, sec. 245; Washington v. Fluggins, Tex.Civ.App., 10 S.W.2d 140; City of Wichita Falls v. Lewis, Tex.Civ.App., 68 S.W.2d 388; City of Abilene v. Luhn, Tex.Civ.App., 65 S.W.2d 370; Speer’s Special Issues, Sec. 251, p. 371.

The court did not err in refusing to submit the following special issue requested by appellant: “What percentage of the present -incapacity, if any, of W. B. Abbott do'you find from a preponderance-of the evidence is due solely to the injury, if any, received by W. B. Abbott while removing a waling from a drainage ditch ? ”

This issue was on the weight of the evidence, in that it assumed that appellee had suffered a “present incapacity * * * while removing a waling from a drainage ditch.” Again, the issue was not raised by the evidence; there was no evidence upon which the jury could have -found any percentage of disability suffered by appel-lee “while removing a waling from a drainage ditch.” Gordon v. McIntosh, supra; 41 Tex.Jur.j p. 1050.'

Appellant was not entitled to the submission of the following issue: “Do you find from a preponderance of the evidence that the injury, if any, of W. B. Abbott is due solely to a cause or causes wholly unrelated to the injury alleged to have been sustained by him on August 31, 1937?”

The substance of this issue was submitted to the jury by question No. 30, which was answered in the negative: “Do you find from a preponderance of the evidence that the disability, if any, of W. B. Abbott is due solely to a cause or causes wholly unrelated to the injury alleged to have been sustained by him on August 31, 1937?”

The court did not err in refusing to submit to the jury the following issue: “Do you find from a preponderance of the evidence that the incapacity, if any, of W. B. Abbott is temporary ? ”

This issue, in substance, was submitted to the jury and found against appellant. Issue No. 6, answered by the jury in the affirmative: “From the preponderance of the evidence, do you find that the per1 sonal injury, if any, sustained by W. B. Abbott on or about August 31, 1937, has resulted in any incapacity and disability to work and earn money ? ”

Issue No. 8, answered by the jury in the affirmative: “From the preponderance of the evidence, do you find that the personal injury, if any, sustained by W. B. Abbott on or about August 31, 1937, has resulted in any total incapacity to work and earn money? ”

Issue No. 9, to which the jury answered “March 1, 1938”: “From the preponderance of the evidence, when do you find that the total incapacity, if any, resulting from the personal injury, if any, sustained by W. B. Abbott, on or about August 31, 1937, began?”

Issue No. 10, to which the jury answered, “For the remainder of his' Life”:

“From the preponderance of the evidence, for how long a period of time, if any, do you find that the total incapacity, if any, of W. B. Abbott, to work and earn money has continued or will continue from the date you have given in answer to the preceding special issue No. 9 (if you have answered Special Issue No. 9) ? ”

The court did not submit to the jury in haec verba the issues of “temporary” and “permanent” total incapacity. But affirmatively, without any limitation on its right to answer the question, issue No. 10 sent to the jury “the length of time appellee’s ‘total incapacity’ would continue. The jury, on its construction of the evidence, could have found in answer to this question, as it did, “For the remainder of his Life” or for any period of time short of “the remainder of his Life.” This submission satisfied fully the principle of law announced in the Washington case, Galveston, H. & S. A. R. Co. v. Washington, 94 Tex. 516, 63 S.W. 534, 538, that the jury might have given effect to “temporary, total incapacity,” “if it had been brought to their attention.” Appellant’s substantive rights went no further than to have submitted to the jury an issue which would give it the option of finding a period of time short of “permanent” total incapacity. Question No. 10 sent that issue to the jury. In Traders & General Ins. Co. v. Jenkins, 141 S.W.2d 312, 315, the Commission of-Appeals, speaking for our Supreme Court, made this restatement of the law: “As stated by Chief Justice Gaines in Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 561, 40 S.W. 391: ‘ * * * the rules of procedure in the courts should be so framed as to secure substantial justice, and any oversight of the court or of counsel, which, within certain limitations, is not calculated to operate to the prejudice of the parties, and has not so operated, should be disregarded.’ ”

Our ruling on this proposition is not in violation of any statutory rule of procedure; certainly, it does not deny to appellant any element of “substantial justice.”

The refusal of requested issues, the basis of propositions 11 and 11a, was not error; these issues were in substance submitted by special issue Ño. 30, supra.

Appellant requested the court to submit to the jury certain issues inquiring whether “all injuries” suffered by appellee resulted from named diseases “disconnected with plaintiffs claimed injuries.” These issues were given as requested, except the court inserted the word “solely.” The inclusion of the word “solely” was not error. To constitute a defense to appellee’s claimed injuries, the diseases submitted by the issues must have been the “sole” cause of appellee’s incapacity. Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753; in the Supreme Court, Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

We give special issue No. 1: “From the preponderance of the evidence, do you find that the timber being carried by W. B. Abbott and a fellow workman on or about August 31, 1937 (if you have found a timber was being so carried) was dropped by the fellow workman ? ”

Special issue No. 2: “From the preponderance of the evidence, do you find that the said personal injury, if any, sustained by W. B. Abbott on or about August 31, 1937, occurred when a fellow workman dropped a timber being carried by him and Abbott (if you have found a timber was being carried by them) ? ”

Special issue No. 2A: “From the preponderance of the evidence; do you find that W. B. Abbott, on or about August 31, 1937, suffered an injury to his back over and along his spinal column in the region of the lumbar vertebrae and muscles, nerves, tendons and ligaments of the lumbar region ? ”

These issues were not subject to appellant’s exceptions that they were “too broad and general,” and permitted the jury to give an affirmative answer, “based upon any .testimony introduced before them, whether the same be supported by the pleadings or. not.”

Appellee’s counsel, Judge Daughtry, made the following argument to the jury: “May it please the court and you gentlemen of the jury: senior counsel has said that he has talked enough, and I have, too, I am sure, but I could talk on and on, even though I know you are tired hearing me, and I don’t blame you. I appreciate the attention this 'jury has given this man’s case. When a man comes out of the portals of a law school, as I did out of the University of Texas, and as my counsel opposing did, there are roads that we must choose to follow, and I chose the road, deliberately, that John Masefield chose in his ‘Consecration,’ and I came out of the law school to make my living practicing law — not the wealth for me, but the lot of a tramp of the road, the man with too heavy a weary burden, too heavy a load. ‘Others may sing of the wine and the wealth and the mirth, the portly presence of potentates goodly in girth: mine be the dirt and the dross, the dust and the scum of the earth. Theirs be the music, the colour, the glory, the gold: mine be a handful of ashes, a mouthful of mould. Of the maimed, of the halt and the blind in the rain and the cold — of these shall my songs be fashioned my tales be told’ and for them, for the kind of law I want, to practice, that I deliberately chose, for the naked and sick and blind in the rain and the cold, for those my songs be sung and my tales be told. I could talk to a jury forever if I thought it would do them any good.”

We overrule appellant’s exceptions to this argument, that it was “not authorized by the evidence in the cause and amounted to an outright appeal to the passion, sympathy and prejudice of the jury by contrasting the wealth and affluence of the appellant with the poverty of appellee, and such statements were designéd and calculated to inflame the minds of the jury and to cause them to answer the issue submitted to them in favor of the appellee without regard to the evidence in this cause.” Judge Daughtry had been called by appellant as a witness against his client, and the point was developed that he represented compensation claimants. Appellant’s principal defense in this case was that appel-lee was a malingerer; appellant inquired whether Judge Daughtry had represented a certain other compensation claimant. Judge Daughtry makes the following answer to appellant’s proposition: “I have a right to comment upon my own character and my own conduct when called as a witness against my own client.”

Again, the argument was not excepted to at the time made, but for the first time on motion for new trial. If the argument was error, its injurious effect could have been removed by a proper instruction. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, 1056; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; City of Waco v. Rook, Tex.Civ.App., 55 S.W.2d 649; Gulf, C. & S. F. R. Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129; 41 Tex.Jur. p. 833, Sec. 88.

We think the argument complained of in the twenty-seventh proposition, without quoting it, had reasonable support in the evidence.

On appellee’s contention, he was injured on the 31st day of August, 1937; the jury found that his total, permanent incapacity began on the 1st day of March, 1938. We overrule the contention, advanced as appellant concedes without supporting authority, “that an injured workman’s incapacity cannot be permanent unless it begins upon the date of the injury and extends throughout the 401-week period immediately following without cessation or diminution.” Appellant’s exceptions to the submission of the issues of total incapacity, based on this proposition, are overruled.

The issue of “lump-sum settlement” was submitted by the following issues :

“18. From the preponderance of the evidence do you find that an injustice will result to W. B. Abbott if a lump sum were denied him, in the event you award him compensation herein ?
“19. From the preponderance of the evidence, do you find that a manifest hardship will result to W. B. Abbott if a lump sum were denied him, in the event you award him compensation herein?”

These questions were proper in form and, having support in the evidence, the court did not err in submitting them. We overrule appellant’s contention that the issue of lump-sum settlement should have been submitted; “Will manifest hardship and injustice result to claimant if his compensation be paid him in weekly installments instead of in a -lump sum.” If appellant desired the issue of “hardship” submitted on the theory of “weekly benefits,” it should have requested the submission of that issue; not having made the request, the issue was waived. The Pepper case, Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Special issue No. 10, supra, was neither leading nor suggestive.

Propositions not discussed are overruled.

The judgment of the lower court should be affirmed, and it is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    TEXAS & PAC. RY. CO. et al. v. CASSADAY.
    No. 14164.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1941.
    Rehearing Denied March 14, 1941.

      Cantey, Hanger, McMahon, McKnight & Johnson, W. D. Smith, and Frank F. Taylor, all of Fort Worth, for appellant.
    Marvin B. Simpson and Robert Harrison, both of Fort Worth, for appellee.
   SPEER, Justice.

Plaintiff, R. F. Cassaday, sued Texas & Pacific Railway Co. and Missouri, Kansas & Texas Railway Co. for damages sustained from the derailing of a car, while employed by the former named defendant. Plaintiff recovered a judgment against his employer company and was denied relief against the other named defendant.

Cassaday alleged that an oil tank car became derailed while he was performing services for the company, because of the negligence of one or both of the defendants; resulting in the injuries described. The alleged negligence consisted of (a) failure to keep their track in proper repair and in a safe condition for use, such as plaintiff was required to perform; the nature of the negligent acts are set out with sufficient certainty; and, in the alternative, (b) that if mistaken in the nature of negligence previously mentioned, then from some other negligent acts unknown to him but known to defendants; that .the tracks, engine and cars were all in the immediate control of defendants when the accident happened and it would not have occurred but for some negligent act of defendants, the exact nature of which he was unable to better identify.

Allegations were made that on about July 1, 1937, he entered into a settlement- agreement with defendant Texas & Pacific Railway Co. for the sum o_f $850, and executed a form of release to that company from further liability; but that he was induced to make such settlement because of the false statements of the company’s claim agent and physicians as to the extent of his injuries, and the statement of the claim agent to the effect that if he (the plaintiff) was not 'entirely recovered from his injuries after five or six months, the claim would be reopened for further adjustment. That he believed and relied upon the representations of the physicians and claim agent that his injuries were of a minor nature, were not serious and that he would soon be able to work again; that such representations were false and were known by the company’s representatives to be untrue when made by them; he prayed that said release be declared void and that he be awarded damages in the amount claimed and that credit be given on the amount of his recovery for $850, the amount formerly paid to him, he being unable to refund said amount at the time of trial.

Defendants answered with general demurrer, general denial and specially to the effect that they had made full, final and complete settlement with plaintiff under the terms of the contract and release of July 1, 1937, paid him with a check, which upon its face provided that said sum was for full and complete settlement of his claim growing ou,t of the accident, and that with full knowledge of the contents of the release agreement and the provisions and conditions of the check, plaintiff had accepted payment, cashed the check and applied the funds to his own use and benefit.

A jury trial was had and special issues .were- submitted, verdict rendered and judgment entered for plaintiff on the verdict. Texas & Pacific Railway Co. has appealed and will be referred to as appellant while plaintiff in the trial court will be designated appellee.

Appellant’s first four propositions complain because the court overruled its motion for a directed verdict. Among the reasons assigned are: (a) because there was no evidence that any negligence of appellant proximately caused his injuries, (b) because appellee’s pleadings were insufficient to form the basis of the rule of res ipsa loquitur, and (c) because the evidence conclusively shows that appellee had an opportunity to read the release agreement and was not prevented from doing so by any fraudulent act of appellant’s agents.

Appellee’s alternative plea was a sufficient basis for the application of the rule of res ipsa loquitur; the accident ánd the consequent 'injuries indisputably followed; res ipsa loquitur is a rule of evidence raising the presumption of negligence, which, even though rebutted, presents a jury question. Alagood v. Coca Cola Bottling Co., Tex.Civ.App., 135 S.W.2d 1056, writ dismissed, correct judgment, and cases there cited.

There is ample testimony in the record to raise the issues of the injuries sustained, the manner in which the accident happened, that the tracks, engine, cars and crew were all under the immediate control of defendants and that plaintiff knew nothing of any defect in the track or cars and that he had no knowledge of any wrongful acts of the employees causing the accident. Likewise the testimony offered clearly presented the issue of whether or not the physicians at defendant’s hospital and the claim agent represented to appellee that his injuries were of a minor nature and not serious, that he would be able to resume his labors within five or six months and that believing these representations, plaintiff relied upon them as being true and was thereby induced to make the settlement for $850. and execute the release upon receipt of that amount. In view of these things, it was not error for the trial court to refuse to take the case from the jury and direct a verdict for defendants. Burroughs et al. v. Smith, Tex.Civ.App., 294 S.W. 948, writ refused; City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652; 41 Tex.Jur., pp. 938 and 939, sects. 167, 168, 169 and 170.

Fifth and sixth propositions involve argument of appellee’s counsel and a statement made by same counsel, in the presence and hearing of the jury. The argument was timely objected to and the objection was overruled by the court. The statement made by counsel covered by sixth proposition was, upon motion of appellant, withdrawn from consideration by the jury. We think the same rule of law is applicable to both, in a case like this.

Referable to the offending argument, the bill of exception discloses that appellant’s three physicians had examined and read an X-ray picture and testified therefrom as to the nature and extent of appellee’s injuries; the picture was marked as an exhibit but never offered in evidence (and, of course, not examined by the jury). In his closing argument,'appellee’s counsel said: “ * * * but you (the jury) didn’t get, in my judgment, all the facts illustrated by these pictures, because I am going to tell you that the very pictures that they (appellants) have brought here, that their doctors- testified from, show conclusively that not only he (plaintiff) had a wide break, but he has got a separate break right in there (indicating) that they have never described to you. Look at it; pass it around, hold it between you and the light and look along there, and see if you can pass on that. (Whereupon, counsel passed said X-ray pictures to the jury and each juror proceeded to hold the X-ray pictures up to the light and examined the same.) And I ask them why .they did not tell that when their own doctor showed it.”

Several pages of Q. and A. transcript of the testimony concerning the picture and testimony of the doctors while interpreting the X-ray pictures are attached to the bill of exception, the trial court approved the bill with a qualification that he did not certify that the testimony attached was all of the evidence in the record on the point. There is nothing in the court’s qualifications of the bill of exception showing that the picture was introduced in evidence. The bill thus approved states it was not in evidence. It is a matter of common knowledge that X-ray pictures only reflect shadows of hard or solid substances, and that an expert may detect fractures, dislocations of the bones and other physical defects by an examination- of the picture. We do not mean to say that a nonexpert may not be able to see such 'things, for they may be apparent to any one. The point raised here is that counsel pointed out to the jury what he conceived to be an additional break in ap-pellee’s tibia to that testified to by the physicians arid exhibited the picture to the jury for corroboration of his contention, at a time when the introduction of evidence had been closed. The overruling of appellant’s objection to the argument and exhibition of the picture tended to lead the jury to believe the matters objected to were proper for their consideration, and no one can safely say that they had no harmful effect to appellant’s rights, in the verdict returned.

The objection urged to counsel’s argument is that the exhibition of the picture, its examination, reading and interpretation by counsel and the jury, had the effect to make appellee’s counsel and the jury expert witnesses for that purpose, furnishing outside evidence for consideration by the jury not admitted before them under rulings of the court. Such argument and evidence claimed to be disclosed by the picture were attempts to show appellee had sustained two fractures to his leg instead of the one testified to by the doctors; that such argument and new evidence were inflammatory and prejudicial to the rights of appellant.

The settled rule of law in this state is that improper argument will require a reversal of the judgment if there is any reasonable doubt as to its harmful effects. Floyd v. Fidelity Union Casualty Co., Tex.Com.App., 39 S.W.2d 1091; Ward v. Brown, Tex.Civ.App., 122 S.W.2d 684; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Texas Indemnity Ins. Co. v. Allison, Tex.Civ.App., 75 S.W.2d 999; 41 Tex.Jur., p. 775, sect. 57.

Improper argument by counsel is sometimes said to amount to the furnishing to the jury of outside evidence and is controlled by the same rules governing misconduct of the jury in considering evidence not placed before them under rulings of the court. Robbins v. Wynne, supra; Missouri, K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S.W. 508, 509; Bell v. Blackwell, Tex.Com.App., 283 S.W. 765, 767; Fidelity Union Casualty Co. v. Cary, Tex.Com.App., 25 S.W.2d 302, Commission of Appeals opinion approved.

As indicated above, sixth proposition involves an alleged improper statement by appellee's counsel in the presence of the jury concerning his client being a pauper. Conditions under which the statement was made are, substantially, that while Dr. Hill, a witness for appellant, was testifying, and appellee, upon request, had exhibited to the doctor both his bare knees. Appellant moved the court to require appellee to submit to Dr. Clayton for an examination. At that time appellee’s counsel said they had never before been asked to do this, and that this matter, in so far as he knew, had been pending two and a half years, and this was the first request of this kind that he knew of having been made. Appellant’s counsel said he was making the request “now”. ’ The court overruled the request or motion. At that time, the statement by ap-pellee’s counsel was made, at which the assignment of error is leveled. The statement was: “We refuse for this reason: You asked it in the presence of the jury. This case has been pending here two and a half years, and I am not going to let this pauper, this man, be submitted to doctors of the company’s choosing after what has gone on, because he is not able to hire a $100 a day expert to get upon this witness stand and tell the truth about it. Now that is your answer.” Upon motion of appellant’s counsel, the court excluded the statement made from consideration by the jury. Appellant’s counsel then moved that a mistrial be declared, which motion was overruled and exception taken.

We think the statement was harmful, prejudicial and highly inflammatory. We fail to see how the instruction to the jury could possibly remove its damaging effect from their minds. In no event is it proper to try a case upon the comparative wealth of the opposing parties. It seldom happens that litigants possess equal wealth. Even if the evidence should disclose that one is poor and that the other is wealthy, this of itself means nothing as compared to the ultimate issues involved, nor does it authorize a reference to that fact by counsel in argument to the jury. Reference in argument to the poverty or wealth of the contending parties has been universally condemned by the courts of this State. Brown Cracker & Candy Co. v. Castle, Tex.Civ.App., 26 S.W.2d 435; Fort Worth Belt Ry. Co. v. Johnson, 59 Tex.Civ.App. 105, 125 S.W. 387; Dallas Consolidated Electric St. Ry. Co. v. Black, 40 Tex.Civ.App. 415, 89 S.W. 1087; Texas & St. L. Ry. Co. v. Jarrell, 60 Tex. 267; Willis & Bro. v. McNeill, 57 Tex. 465; Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311; Woodard v. Texas & P. Ry. Co., 126 Tex. 30, 86 S.W.2d 38. We think both propositions 5 and 6 are well taken and require a) reversal of the judgment in this, case for another trial.

There are several other assignments of error presented by appellant, such as that special issue No. 2 was duplicitous; that is, it inquired if appellee believed and relied upon the promise of the claim agent to reopen his settlement under certain named conditions. That special issue 4a was open to the same objection because it inquired if appellee was induced to sign and cash a check in question because of the same misrepresentations. Likewise, Special Issue No. 5, inquiring if appellee was able, at the end of five or six months, to resume his work as brakeman or switch-man. These questions were required to be answered “yes” or “no” and such an answer conceivably could be made relative to one matter inquired about but would not be applicable to. the other. The manner of wording the inquiries complained of has been many times condemned. See Article 2189, R.C.S.; Bradley v. Howell, Tex.Civ.App., 126 S.W.2d 547, writ dismissed, correct judgment; Hill & Co. v. Fricke, Tex.Civ.App., 135 S.W.2d 582, writ dismissed, judgment correct, and cases there cited.

We see no evidence in the record which raises the issue of unavoidable accident and the court properly refused to submit that issue upon a request by appellant to do so. Other assignments have been carefully studied and finding no error presented by them, they are overruled.

A peculiar situation is presented to us upon this appeal. The case was submitted to the jury upon issues almost exclusively inquiring about the alleged fraudulent conduct of appellant’s claim agent, in which it was claimed that in an oral agreement between him and appellee, pri- or to the time the release in writing was prepared and executed, that if appellee was not sufficiently recovered at the end of five or six months, the claim would be reopened. The written release contained no such provision. Appellee says he did not read the instrument before signing it, but admits that he had ample opportunity to do so and was not in any manner prevented from reading and understanding it, by anything said or done by the claim agent. He says he wrote upon the release contract in his own handwriting that he had read and understood it. We think that although the jury verdict to the effect that the claim agent did orally promise appellee that if he did not recover in five or six months, the claim would be reopened, that appellee believed that statement and relied upon it, and was thereby induced to sign the release, finds no proper or legal support in the pleadings. In other words, such a finding under the pleadings and evidence would not, of itself, entitle appellee to a cancellation of the release and authorize a recovery for the injuries sustained. Appel-lee relies upon the holding in case of Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963. There are expressions found in that opinion which would support his contention, but we do not think what is said there is entirely controlling in the instant case. The facts of that case were different to those here.

Bearing in mind that this suit was brought to recover damages for injuries sustained, proximately caused by appellant’s negligence, and to cancel a release contract executed by appellee, because he was induced to enter into a settlement agreement in the first place, by the fraudulent statements of appellant’s physicians and the claim agent, to the effect that ap-pellee’s injuries were slight and that he would be able to resume his work in five or six months, we think the additional oral statements claimed by appellee to have been made by the claim agent, to the effect that if appellee was not able to resume his work within five or six months, the claim would be reopened, is not a controlling factor in the fraud relied upon by ap-pellee.

We have made the foregoing observation in view of admissions made by appellee’s counsel upon the trial and in the briefs before us. During the trial, while testimony was being offered, counsel said, in substance, that it was not contended that Cas-saday did not know what was in the release, but admitted that he did know its contents. This means, of course, that ap-pellee knew that there was nothing in the instrument about reopening the case at any future time. Counsel also admitted in open court that appellee read and understood the printed provisions on the draft and' with this knowledge indorsed and cashed it. In their brief before us, counsel again reiterate what was admitted upon the trial and add that their contention here, now and at all times, has been that when ap-pellee learned that he had been fraudulently induced to make a settlement (presumably upon the false and fraudulent representations that his injuries were slight) the settlement evidenced by the release contract and the recitations upon the draft are void. The release and draft resulted from the alleged fraudulent misrepresentations about the nature and extent of his injuries.

The record does not disclose just why the case was submitted to the jury upon the single theory that the release contract was void only because it did not include the alleged oral agreement made by the claim agent to reopen the case upon the contingency mentioned above. There is ample evidence in the record to raise the additional theory, and the one apparently relied upon by appellee, that appellee was induced in the first instance to make a settlement of his case for $850 because the physicians and claim agent led him to believe his injuries were not serious and that he would be able to resume his work within five or six months. Before the court submitted his charge to the jury, ap-pellee prepared and requested the giving of special issues which would have presented this phase of the case, but they were all refused by the trial court. This, as we see it, was the controlling point in the case.

If appellee was induced to make a settlement for the amount mentioned because of the fraud of appellant, and in doing so executed the release contract, the issue would not be determined by whether or not the claim agent agreed at the time of drawing the instrument to reopen the matter if ap-pellee did not recover promptly, nor would it be material whether the release contained such an agreement.

If the controlling issue in this case had been whether or not the written release should be cancelled solely because it did not contain provision for reopening the claim if appellee did not recover within five or six months, we think the pleadings were insufficient to admit of evidence on that point. It would'have been in violation of the parol evidence rule, which does not permit the contradiction of a written instrument by parol evidence, except under certain conditions.

It cannot be denied that the universally recognized rule prevails in this state that fraud vitiates an otherwise apparently valid contract, but it is equally well settled that the terms of a written contract cannot be contradicted or varied by parol. The fraud necessary to vitiate a contract is some misrepresentation, trick, artifice, mutual mistake or device which prevents the coming into existence of any valid contract at all. There are no pleadings by appellee to the effect that the variance between the provisions of the written release and the oral agreement had with the claim agent was occasioned by mutual mistake, misrepresentation of facts, trick, artifice or other device; nor that he was induced to execute it as written on that account. In the present state of the pleadings, appellee was relegated to the establishment as a fact that he was in duced to enter into the compromise settlement by the fraud alleged by him. Avery Co. v. Harrison Co., Tex.Com.App., 267 S.W. 254; Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47. Much of what we have said on this point was taken from the language used in the last-cited case. As we understand the rule announced in the Patton case, supra, it is to be distinguished from the points discussed in Texas & N. O. Railway Co. v. Thompson, supra. In neither of those cases, however, was plaintiff’s right of recovery dependent to any extent upon fraud alleged to have brought about the inducement to make the settlement that was made, as we have involved here. In any event, both of those cases are by the Commission of Appeals, and the opinion in the Patton case was adopted by the Supreme Court, and what was said in the Thompson case was before the court when the Patton opinion was written.

Appellee calls our '■attention to case of Texas & Pacific Ry. Co. v. Presley, Tex.Civ.App., 127 S.W.2d 914, and says the holding there is applicable here. In that case a somewhat similar situation to that before us was considered, and, as we understand the opinion, the majority attempted to follow Texas & N. O. Railway Co. v. Thompson, supra. Justice Funderburk dissented and based his reasons largely upon the holding, in the Patton case, supra. We note that a writ of error has been granted in the Presley case, based upon the dissent.

We cannot say the case at bar. was tried upon the wrong theory, but certainly it was submitted to the jury upon a theory which we do not believe the pleadings would support, for the reasons above set out. It was not submitted upon the theory, as contended for by appellee here, that is, that the fraud of appellant induced him to enter into the settlement agreement which was purportedly reduced to writing in the release.

Appellant insists here that since, under the pleadings and admissions of ap-pellee, no judgment against it was authorized upon the theory submitted to the jury, the judgment should be reversed and rendered in its favor. We do not agree that this should necessarily follow.

Appellee plead a case of fraud entering into the settlement agreement, and produced evidence sufficient to take it to the jury; if his evidence upon another trial should be the same, and believed by the jury, it would support a judgment in his favor. Upon another trial the phase of appellee’s case presented by the pleadings, evidence and the requested issues submitted upon the former trial should be determined by the jury. Our refusal to render judgment is supported by Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Sun Oil Co. v. Gunter, Tex.Civ.App., 125 S.W.2d 338; Dallas Joint Stock Land Bank v. Britton, 134 Tex. 529, 135 S.W.2d 981; Jefferson Amusement Co. v. Eaves, Tex.Civ.App., 137 S.W.2d 104.

For the errors pointed out, the judgment of the trial court should be reversed and the cause remanded for another trial, not inconsistent with these conclusions. It is so ordered.

On Motion for-Rehearing.

Defendant has filed a lengthy motion for rehearing, urging us to revise our original opinion and render judgment in its favor. It is contended that the evidence indisputably shows that the doctors, whom plaintiff claims made false statements to him as to the nature and extent of his injuries, were connected with the Employees Hospital, an institution owned and operated by an Employees Association and not by the defendant. We used language in the opinion which is susceptible to the construction that it was established that the doctors were employees of defendant; the language so used is misleading. We are not to be understood as having found that as a fact, but we discussed the testimony in connection with defendant’s contention that it was entitled to an instructed verdict. The evidence is conflicting in its nature, as to whose agents and employees the doctors were. There is ample - testimony to have supported a jury finding either way. The question was not submitted and remains undetermined. It would have been error for the court to have instructed a verdict for defendant and, of course, in that state of the record, we could not properly render one for it.

The plaintiff, appellee here, has filed no motion for rehearing, but in a written replication to the motion of defendant, argues that we have erred in holding that there was no competent evidence to support the judgment entered upon a verdict based solely upon a false statement made by the claim agent, at the time the release was executed — a statement that if plaintiff had not fully recovered at the end of five or six months, he would reopen the claim. This was the only fraudulent statement or act submitted to the jury. There were other acts of fraud alleged and supported by some evidence of probative force, but were not submitted. We do not believe that, under the facts here, the release contract could be avoided solely because of the alleged false statement of the claim agent referred to, in view of the fact that plaintiff admits that he knew, when he signed it, there was no such provision in the written instrument.

Plaintiff insists that our holding in this case is in conflict with the rule announced in Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963. We have indicated in the opinion that it is only under certain conditions, which of course must be pleaded, that a written instrument may be contradicted by parol evidence. If we ignore the alleged fraudulent statements made by the physicians and the claim agent, which it is claimed induced plaintiff to agree to accept the amount paid him in settlement of his claim, as was done in the submission of issues to the jury, and rely solely upon the alleged fraudulent statement of the claim agent made at the time the parties were ready to reduce the contract to writing, and the release was so drawn as to omit the promise made to reopen the case under certain conditions, and plaintiff executed it with full knowledge that no such provision was contained in-the instrument, it is difficult for us to see just how he could be heard to complain of its contents, under the pleadings with reference to it, as they now exist. We are unable to harmonize the broad language used in the Thompson case with the rule later announced by the same court in Distributors Investment Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, adop'ted by the Supreme Court, especially referable to the parol evidence rule so universally recognized by our courts. We feel impelled to follow our Supreme Court and if there are apparent conflicts in its holdings, the last expression must be presumed to have been used with the other in mind.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    FELDMAN v. STATE.
    No. 20550.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    For former opinion, see 147 S.W.2d 773.
    Fulbright, Crooker & Freeman and C. A. Leddy, all of Houston, for appellant.
    W. C. McClain, of Conroe, R. A. Bassett, of Richmond, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

' In the State’s application for leave to file second motipn for rehearing it is pointed out that we were in error in the original opinion and in the opinion on motion for rehearing in stating that the conversation between Shuford Farmer and Olin Culberson occurred in April, 1937. The record discloses that such conversation was had in April, 1936. We are constrained to deny the application. We quote from Hickman v. State, 93 Tex.Cr.R. 407, 247 S.W. 518, 520, as follows: “Second motions for rehearing will not be considered by this court, nor leave granted to file same, unless there be a sufficient showing in such application of the fact that in its original opinion, or opinion upon the motion for rehearing, the court has omitted to consider some matter, which, from the statement thereof in such application, is made to appear to this court so vital to the proper disposition of the case as to lead us to conclude that we erred in failing to consider same, or else such application must present such facts, arguments, or citations in reference to some matter decided in the original opinion or that upon rehearing, as will lead this court from an examination of the application to conclude that our decision in such regard was so far wrong as that its correction would entitle the appellant to a second rehearing.”

The application, for leave to file second motion for rehearing is denied.

PER CURIAM.

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


author: GRAVES, Judge. KRUEGER, Judge.

text:
    BIGHAM v. STATE.
    No. 21364.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Rehearing Denied March 19, 1941.

      T. D. Kimbrough, of Midland, and C. C. McDonald, of Wichita Falls, for appellant:
    Gerald Mann, Atty. Gen. of Texas, Benjamin Woodall and Pat Coon, Asst. Attys. Gen., Martelle McDonald, Dist. Atty., of Big Spring, and Lloyd W. Davidson, State’s Atty.,'of Austin, for the State.
   GRAVES, Judge.

' Appellant was charged with accepting a bribe, and by the jury given a penalty of two years in the penitentiary.

The facts proven by the State show that appellant was a deputy supervisor of the oil and gas department of the Railroad Commission, and as such was stationed in the area embraced by the latan East Howard County field. R. J. Kelly was vice-president of the Shasta Oil Company, and was a resident of Midland County, in which ■area such company owned a large number of producing oil wells. These wells, under the rules and regulations of the Commission, had a certain allowable which was based to some extent on the possible amount of oil that could be produced from each well, called its potential. From time to time, if desired or necessary, it was the province of this deputy supervisor to make a test of these wells to see how much oil they could produce in a given time in order to allow the Commission to fix the amount of oil that such wells would be allowed to produce. It seems that such wells of the Shasta Oil Company were operating under an allowable that was satisfactory to the owners at the time laid in the indictment. However an interview was had between Mr. Kelly and appellant in which, as the State .contends, appellant indicated that he thought the potential of these wells had decreased, and therefore that they were being allowed to produce more oil than they were entitled to produce, under the rules and regulations of the Commission, and that the appellant intended to make another test of their possible ability to produce oil and report the same to the Commission, and they would thus probably reduce the allowable on said wells, and might possibly cause such wells to cease production for a certain period because of their past over-production.

At such meeting between appellant and Kelly appellant demanded the sum of $5,000 in cash and a.payment of $200 per month in return for an agreement that he, appellant,' would not make a further test of the said wells, but would thus allow them to continue to, produce on their present allowable. Mr. Kelly got in touch with the president of the oil company and the Attorney General’s Department, and made an appointment to meet appellant in Midland on a certain date. The representatives of the Attorney General, a Federal agent and two State Rangers repaired to Midland, and placed dictaphones in the office of Mr. Kelly; and on the date set appellant appeared at Mr. Kelly’s office. A stenographer had been placed in the next room to Kelly’s office and, through earphones, heard the conversation and took the same down in shorthand, and transcribed her notes, which were afterwards introduced in evidence.

After this conversation the appellant left Kelly’s office, and was immediately arrested by the Rangers, and there was found on his person two hundred and fifty $20 bills, which were identified by their numbers as certain moneys furnished to Mr. Kelly prior to the interview between him and appellant.

Appellant’s bill of exceptions No. 1 relates to his motion to quash the first count of the indictment, which was the only count submitted to the jury, and upon which the conviction was based. This count is set forth on three pages of typewritten matter and is long and involved, and in the interest of brevity we will not copy the same in this opinion. Suffice it to say, the same sets forth the fact that appellant was the duly appointed and acting Deputy Supervisor for the Oil and Gas Division of the Railroad Commission of Texas, engaged in discharging such duties in the Iatan-East Howard oil field in certain counties in the State, and in enforcing the rules and regulations of such Commission therein. Said Commission had made and promulgated certain rules for such field relative to ascertaining the allowable for the wells in such field, and such rules were set forth therein; that it was the duty of appellant as such deputy to make certain tests of the productivity of oil wells in such field in order to carry out the orders and rules of the Commission, and thus allow the Commission to determine how much oil should be allowed to flow from such wells each day; that appellant did wilfully and corruptly consent to accept and did accept $5,000 in money from R. J. Kelly, and did agree not to make any tests of said wells in order to determine the daily allowable of such wells in violation of his duty as such deputy supervisor, etc.

There are twenty exceptions leveled at this indictment, and it is patent that we cannot take up and discuss such exceptions seriatim, but must content ourselves with saying that in our opinion the indictment is sufficient to inform the appellant of the offense with which he stands charged. We thus dispose of bill of exceptions No. 1.

Bill of exceptions No. 4 relates to a request for an instructed verdict, which we think was properly overruled, and to the same effect is bill of exceptions No. 5, with the same ruling upon our part.

We do not think that the requested instruction set forth in Bill No. 6 was called for by the evidence presented us, nor does the bill attempt to set forth any such evidence. It is therefore overruled.

Bill No. 7 sets forth a requested charge on circumstantial evidence, and excepts to a failure upon the part of the trial court to give such in charge to the jury. We are not impressed with such a- duty herein upon the part of the court; the testimony relative to such matters herein was direct and not circumstantial.

Bill of exceptions No. 8 is concerned with a charge requested by appellant that embodies a doctrine setting forth the difference between an accomplice offender and an accomplice witness. We can see no good reason for the trial court entering into a dissertation before the jury of the different kind or classes of accomplices, nor in what manner a witness becomes such an accomplice. It should be sufficient to say that such a witness was an accomplice, regardless of the route such witness pursued in order to arrive at such accompliceship; and we here note that the court did peremptorily instruct the jury that the witness R. J. Kelly was an accomplice, and also gave a comprehensive charge on the necessity of a corroboration of an accomplice’s testimony.

Bill No. 9 complains because the trial court failed to submit to the jury for their decision the fact as to whether or not the witnesses J. R. Lewis and Mrs. R. J. Silberman were accomplices, and if thus found to be by the jury, then the necessity of their testimony being corroborated. We are doubtful as to whether the court should have peremptorily instructed the jury that R. J. Kelly was an accomplice, but if such was an error, it redounded to appellant’s benefit, and he does not complain thereof. Relative to the witness J. R. Lewis, the record shows that he was an agent of the Federal government and had naught to do-with the commission of any offense, nor its ■ detection other than to be present at Odessa at a conference with the Assistants to the Attorney General, as well as to have flown in an airplane to Midland in company with a large box which presumably contained dictaphones. It is to be further noted, however, that .this witness did take down the serial numbers of two hundred and fifty $20 bills and identified such a number of bills, supposedly taken off appellant’s person, as the same bills whose numbers he had previously taken down. We do not think there is shown in the record any circumstance that would evidence his connection with this transaction in any form than otherwise here indicated. As to'the witness Mrs. R. J. Silberman, it is shown by the record that* she was a skilful stenographer who for many years had been working for the Shasta Oil Company and Mr. Kelly, and as such stenographer she was told to wait in the room adjoining Mr. Kelly’s office and take down any conversation she heard in his office. She did so, and swore that she correctly took down such conversation in shorthand and correctly transcribed her notes, and same was introduced in evidence. The record shows nothing to intimate that her testimony was that of an accomplice, but was merely that of one who did not seem to know anything about the transaction whatsoever. Mr. Branch says in his Penal Code, p. 360, Sec. 702: “The witness must be criminally connected with the crime on trial before a charge on accomplice testimony is required,” citing many cases.

Bills Nos. 10 and 11 relate to the refusal of a further charge on accomplice testimony setting forth the doctrine that one accomplice cannot corroborate another, which charge we do not think called for by the testimony.

Bill of exceptions No. 12 is based on the following occurrence: It will be remembered that the witness Mrs. Silberman testified that she took down in shorthand a conversation between R. J. Kelly and appellant, which occurred at the time the State contended that appellant accepted the bribe of $5,000, and that she reduced said notes to typewriting in the English language, and this translation of these notes was introduced without objection before the jury. After the jury had retired, they sent to the trial court this request in writing: “The jury wishes to know if Mrs. Silberman’s transcribed statement is to be considered as corroborative evidence of the witness R. J. Kelly. We also wish to see a copy of same.”

After this request was received, appellant requested the court to instruct the jury that they could not consider such transcribed statement as corroborative evidence because the witness Mrs. Silberman was a'n accomplice. This the court refused to do. Whereupon appellant then requested the court to submit to the jury the proposition as to whether or not the lady was an accomplice witness, which the court again refused to do. To all of which the appellant excepted, and also objected and excepted to the court furnishing to the jury the transcribed notes of Mrs. Silberman as requested by them in writing. We note that the court did not entertain the request of the jury relative to the effect of Mrs. Silber-man’s testimony, and made no answer thereto, but that the court did furnish to the jury, as requested by them, the transcribed notes of the alleged conversation between Kelly and appellant. We think the careful trial court was correct in thus answering the request of the jury. It is shown by the bill that the transcribed notes of this conversation 'were in writing and introduced before the jury, unobjected to, and marked State’s Exhibit No. 4, and as such they were read to the jury. The statute, Art. 674, C.C.P., provides that: “The jury may take with them any writing used as evidence.” Also see Branch’s P.C., p. 300, Sec. 585. In this case there is no showing that the jury used these transcribed notes in any improper manner. We see no error manifest in said bill.

It is also contended that appellant was indicted under the wrong statute; that he was indicted as an officer of the State, whereas he was merely an employee thereof. That appellant was indicted under the provisions of Art. 159, P.C., seems clear. That article reads as follows: “Any legislative, executive or judicial officer who shall accept a bribe or consent to accept a bribe under an agreement or with an understanding that his act, vote, opinion or judgment shall be done or given in any particular manner or upon a particular side of any question, cause or proceeding which is or may thereafter by law be brought before him, or that he shall make any particular nomination, appointment, or .do any other act or omit to do any act in violation of his duty as an officer, shall be confined in the penitentiary not less than two nor more than ten years.”

The court instructed the jury that appellant was such an officer as was contemplated by the above statute:

Art. 160 of the Penal Code reads as follows : “Under the name of executive, legislative and judicial officers are included the governor, lieutenant-governor, comptroller, secretary of state, state treasurer, commissioner of the general land office, commissioner of agriculture, commissioner of insurance, superintendent of public instruction, members of the legislature, aldermen of all incorporated cities and towns, judges of the supreme, district and county courts and of the courts of appeals, attorney general, district and county at--torneys, justices of the peace, mayors and judges of such city courts as may be organized by law, county commissioners; school trustees, and all other city, county and State officials.”

It is also noted that it is shown that appellant was a deputy supervisor of the Oil and Gas Division of the Railroad Commission of Texas. In-this connection we quote from Art. 6030, R.C.S., Vernon’s Ann.Civ.St. art. 6030, as follows: “The Commission shall employ a Chief Supervisor of its Oil and Gas Division to aid the Commission in the enforcement of the provision of this Act and all Oil or Gas Conservation Laws of Texas, and all rules, regulations and orders of said Commission made thereunder. He shall also perform the duties placed upon the pipe line expert as set out in the pipe line statutes of this State. The Commission may also appoint a Chief Deputy Supervisor and such other Deputy Supervisors as may be necessary to assist in carrying out the pro-' visions of this Act and related Statutes and shall employ such other assistants and clerical help as may be necessary for the same purpose. The salary of the Chief Supervisor and of Chief Deputy Supervisor and of the Deputy Supervisors shall be fixed by the Legislature in its appropriation bill for the Railroad Commission; provided such salaries shall not exceed the following amounts: That of the Chief Supervisor shall be Six Thousand ($6,-000.00) dollars per annum, that of the Chief Deputy Supervisor shall be Five Thousand ($5,000.00) Dollars per annum, and that of the Deputy Supervisors shall be Thirty-six Hundred ($3,600.00) dollars each per annum. In addition to any other qualifications that may be required by the Commission, no one shall hereafter be appointed Chief Supervisor who has not had at least five years experience in some line of the oil or gas business, or in some other business or profession calculated-to fit him for the performance of his duties. No one shall hereafter be appointed as Chief Deputy Supervisor who has not had at least three years experience in oil and gas field work, and no one shall hereafter be appointed deputy supervisor who has not had at least two years experience in oil and gas field work, a substantial portion of which shall be in the drilling or production department. All salaries and other expenses of every kind and character necessary in the administration and enforcement of this Act shall be paid out of the funds created in Chapter 30, Acts of 1917, being now Article 6032, Revised Civil Statutes of 192S, and in the manner therein provided. The Chief Supervisor, Chief Deputy Supervisor and all Deputy Supervisors and all other employees shall perform the duties prescribed by the Railroad Commission and in conformity to the rules and regulations of the Commission dealing with the production, transportation and conservation of crude oil and natural gas.”

■ Also we quote Art. 6031, R.C.S.: “The supervisor and his deputies shall supervise the plugging of all abandoned wells and the shooting of wells and conform to the rules and regulations of the Commission, dealing with the production and conservation of oil and gas. The supervisor shall gather information, and assist the Commission in the performance of its duties under this title.”

It is also worthy of note that Art. 1112b, Vernon’s Ann.P.C., under the head of “Bribing Officers,” says:

“It shall be unlawful for any person to corruptly give, offer or promise to give any member of the Governmental Agency, Chief Supervisor, Deputy Supervisor,-, or any agent or employee thereof, any gift or gratuity with intent to influence any such officer or person in his acts or conduct with respect to:
“(a) Enforcing any provision of the law applicable to oil and gas in force at the time within the State of Texas;
“(b) Enforcing any order, rule, or regulation of the Governmental Agency made under the power and authority given to it;
“(c) Or the discharge of any duty by any such officer or person imposed upon him by the oil and gas laws, orders, rules and regulations duly promulgated and in force at such time with the State of Texas.” Section 7b.

We early held in the case of State v. Brooks, 42 Tex. 62, that a deputy sheriff was an officer within the contemplation of the law, and it was again so held in the case of Reed v. State, Tex.Cr. App., 149 S.W.2d 119, decided February 5, 1941, not yet reported [in state report]. It was also held that an assistant director of the Motor Transport Division of the Railroad Commission was either an officer or a de facto officer. Again, we think that Art. 6030, supra, providing for the appointment of a deputy supervisor and prescribing his duties, gives ample grounds for a legal inference that such deputy was an officer in contemplation of this statute. While not a necessary adjunct, nevertheless the fact that a person receives his position by appointment is at least persuasive to some extent that such position is an office; if he receives such merely by employment, the inference might lean toward the fact that he was but an employee. That one is called a deputy carries with it the fact that he is an alter ego for his superior, being charged with all the duties as well as the responsibilities of his superior, and empowered to perform the acts and discharge the duties of such superior, and to that extent becoming the superior officer himself in his superior’s absence. If the superior be denominated an officer, then the deputy would also be such an officer.

Reasoning by legislative analogy, we find Art. 161, P.C., reads as follows: “Whoever shall bribe or offer to bribe, any clerk or other officer of either branch of the Legislature, or any clerk or employe in any department of the State government, with the intent to influence such officer to make any false entry in any book or record pertaining to his office, or to mutilate or destroy any part of such book or record, or to violate any other duty imposed upon him as an officer, shall be confined in the penitentiary not less than two' nor more than five years.”

And also it seems to be clear that Art. 162, P.C., seems to classify such governmental employees as “officers” as is shown thereby: “If any officer named in the preceding article shall accept a bribe so offered, or consent to accept the same, he shall be confined in the penitentiary not less than two nor more than five years.”

That the witness Kelly, who was charged as being an accomplice, was not corroborated, is appellant’s further contention herein. It is evident from the jury’s communication to the trial judge that the testimony of Mrs. Silberman was being considered by them as to whether same was such corroboration. We think it was sufficiently shown in her transcribed notes -that a conversation took place between the appellant and Kelly, and it appears to us that such conversation was of sufficient cogency to tend to connect appellant with the acceptance of this offered bribe; that his possession immediately thereafter of this marked two hundred and fifty $20 bills at the time of his arrest would further tend to connect him with having received such funds under the circumstances not only detailed by Kelly but also shown to some extent by his transcribed statement at the time of the transaction itself.

At the risk of unduly extending this opinion, we here incorporate the transcribed statement of the conversation between appellant and Kelly offered in evidence without objection, and later called for by the jury:

“Midland, Texas, March-12, 1940.
“Conversation- — R. J. Kelly office— 11:30 A.M.
“Kelly: Yes — yes—yes—Tell him to come in. Hello Mr. Bigham.
“Bigham: Good morning, sir, how are you?
“Kelly: How are you?
“Bigham: Okey dolcey.
“Kelly: Have a seat.
“Bigham: I haven’t got but a minute, I’ve got—
Kelly: O. K.
Bigham: Go to Austin.
Kelly: Well, I tell you I have that money here and want, I want to be sure that I am protected in this thing. I just want to know — -I am going to feel sure about—
“Bigham: The only thing about it I could not guarantee not to be an earthquake or ' cyclone — the way it is you are perfectly safe, that’s all.
“Kelly: In a way, how would those al-lowables be changed if they were changed.
“Bigham: Well, they would be cut down a good deal more than half.
“Kelly: Well, what would cause them to be changed?
“Bigham: Nothing in the world except just that — er State wide or something like that — there is not anything in the world to worry about unless somebody goes out there and retests your wells in that case you would have about 87 bbls in place of —622, that is on potential al-lowables
“Kelly: The only way they would be changed would be by you having them tested.
“Bigham: That’s it — of course, the Austin office — nobody else — they want them retested — and they are going to refer it to me and if we retest them you still would not be affected. That is what I am trying to tell you (train whistle)
“Kelly: I am just wondering if we couldn’t pay you $1,000.00 now and $1,000.00 per month
“Bigham: Well, I don’t believe that’s satisfactory the way they talked in Austin. The damn thing has been rocking along — that they know of — since the 10th of last November — that they got positive proof of
“Kelly: Then they have positive proof in Austin
“Bigham: Yeah * * * that’s right cause here’s the idea with me. In other words they just as well make what they are set on schedule at. And what if you were cut back? I figured it up the other day to be about ¡12,000 barrels a month instead of having twenty some odd thousand you would have about twelve I mean about eight thousand and then there’s the from November 10th of last year — well, there’s about 80% of them, you would have about twenty eight thousand seven hundred and some odd barrels charged back against you. * * * I would be willing to do anything but I am just one of eight.
“Kelly: One of eight
“Bigham: I got to do what the rest of them tell me to do
“Kelly: You have to do what they tell you to do
“Bigham: That’s it. Now, of course, understand the Commission do not have a damn thing in the world to do with it — that is I say they haven’t — the man that gives me orders is pretty close to the Commission. In other words, Jerry Sadler, Ernest Thompson and Lon Smith do not know a damn thing about it. If there ever should be anything done about it, it’ll be referred to this office. They don’t send a bunch of men in here to check on my leases at all. Off the record, I’ve had — since I have been here — 25 or 30 but they would always be referred to here. I’ll tell you what they ever one said * * *.
“Kelly: In other words you are in charge of this West Texas district entirely and it’s up to you
“Bigham: That’s right they instruct me satisfy myself and they are tickled to death, that’s what they tell me. You haven’t got a thing 'in the world to worry about.
“Kelly: Well, I’ve never been in anything like this before *, * *.
“Bigham: If you’ve operated in East Texas ⅜ *' *.
“Kelly: I just hate to put out $5,000.00 and then God Damn next month be cut back
“Bigham: Well, there wont be anything like that — in other words, if you got cut back to nothing you still would not lose anything because there are 28,000 damn barrels that I could charge you back but I am the only son of a bitch in the world who can do that so you are absolutely safe. Cause they ■ are not going to — they can’t do anything. If you do not mention it,. well that’s all there is to it cause you know damn well I am not going to say anything and if you do you would be hurt a damn sight worse than I would. Just, as long as you keep quiet— now, the other man — this is off the record — I, he made a statement himself over there —he made a deal yesterday and it cost him a damn sight more than it did you
“Kelly: Ennisbrook made a deal yesterday and it cost them
“Bigham: Yeah, that’s what I understand — the fact of the business is the man told me to stay off of it but you keep that to yourself. There is not but one damn thing in this kind of business and that’s to keep your mouth shut. As long as you keep your mouth shut you are in the clear. * * * I’d say 97% of the independent operators in East Texas are doing it every month but you fellows are as lucky as hell out there that something didn’t happen to you for overproduction and that’s the damn truth. Of course, that, of course, we —it’s kind of incidental that we got hold of you. We knew the 12 wells you had out there before on that one lease wouldn’t make but about 800 bbls. which is your. allowable and they’ve been in since the ' first of the year and some of them during the month and that’s what I am telling you. As long as you’ve got it coming, well all right. If anything happens, well, I’ll damn sure stand behind it — I guarantee you that
Well, I’d like for you to count that out to be sure “Kelly:
No, you just leave it in there, ■ hell I don’t want to fool with it in here. “Bigham:
You don’t want to fool with it “Kelly:
If there Is anything wrong with it I will let you know “Bigham:
Well, there aint nothing wrong with it there are two hundred and fifty $20.00 bills “Kelly:
If anything happens you get in touch with me and you’ll get your damn money back “Bigham:
You’ve got the money now it’s up to you to see that we “Kelly:
There is not but one damn thing I want you to do and who ever is with you and that is keep quiet and not ever mention it — I do not give a damn who comes around you do not ' know a damn thing about it. Of course, if this is the first time you ever did it I understand that “Bigham:
Yeah, this is the first time I’ve ever done anything like this — ■ God damn I’m just a country boy, see “Kelly:
If you ever operated over there in East Texas, hell we made them jump right quick “Bigham:
Yeah “Kelly:
And they are no three or four days doing it, well I’ll see you, Mr. Kelly “Bigham:
O. K.” “Kelly:

We think the statement itself strongly tends to connect this appellant with the acceptance of a bribe.

We have carefully reviewed this matter under the assistance of appellant’s comprehensive brief as well as one of like character by the State and are impressed with the conviction that no error is shown in this trial.

The judgment is therefore affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant has filed a very comprehensive motion for a rehearing presenting his contention in an able and logical manner in which he strenuously insists that there is not any evidence, direct or circumstantial, corroborating the accomplice witness, J. R. Kelly, as to material and essential facts constituting the offense charged. It will be noted from the original opinion herein that the State made a complete case against appellant by the testimony of Kelly. Therefore, if there is any other evidence, either direct or circumstantial, which tends to connect appellant with the offense charged, then- the measure of proof required by law has been met by the State. Let us see if there is any evidence which tends to identify appellant as the man who was in Kelly’s office at the time in question and received from Kelly two hundred and' fifty $20 bills. The uncontroverted evidence shows that appellant was, by the Railroad Commission, appointed supervisor of the oil fields in that area of the state; that his duties were to check the potential-production as well as the amount of oil actually produced by each well in that area and make a report thereof to the Commission. Mrs. Silberman testified that on' the morning in question, she had occasion to take down a conversation which occurred between Mr. Kelly and a man who answered to the name of Bigham in Mr. Oles’ office, which is one office removed from that of Kelly; that she listened to the conversation with ear ’phones; that she heard what was said in the other room; that she took down the conversation in-shorthand and later transcribed her notes with a typewriter; that she had a copy-thereof and it was correct. She did not know the appellant but assumed that it was he because the young man who answered the door said, “Good morning, Mr. Bigham”, and the person so addressed replied, “Good morning.” If it had been-any one else she guessed he would have said, “This is not Bigham.” Here we have a man coming to the door leading into Kelly’s office. He is addressed as Bigham and no denial was made by him that such was his name. Does this tend to show that it was ■ Bigham who came to visit Kelly at the latter’s office? We think so.' This, however, is not the only fact which tends to identify him and connect him with the offense. Bearing in mind that appellant was appointed by the Railroad Commission as supervisor of crude oil production for that area of the state, we find from-the conversation at the time in question that they discussed the oil that had been and was being produced by the Shasta Oil Company at Midland,- Texas, of which Kelly was in charge. During the discusT sion Kelly inquired, “How much would the allowables be changed if they were changed?” The other person replied, “they would be cut down a good deal, more than half.” The conversation further shows that Kelly inquired as to what would cause the change. The reply was; “Nothing in the world unless some one goes out there and retests the wells. * * No one would want them retested but the Austin office and they (meaning the Railroad Commission) would refer it to me. * * * I am in charge of this West Texas district, and it’s up to me to satisfy myself.”

Then Kelly asked if he could pay him $1,000 then and $1,000 per month, stating that he disliked to pay out $5,000 and then the next month be cut back. This was- not acceptable to the party who was talking to Kelly. Finally Kelly said, “Here are two hundred and fifty $20.00 bills. Count it out to be sure.” The reply was: “No, just leave it there. I do not want to fool with it in here. If there is anything wrong with it, I will let you know. If anything happens, you get in touch with me and you will get your money back.”

We have purposely refrained from setting out the entire, conversation because, it appears in full in our original opinion,-, but enough of it is stated to warrant the conclusion that the person who was talking to Kelly was the person who checked the production of the oil wells in that area of Texas, and saw to it that the wells were not producing more than that provided by by the proration order of the Railroad-Commission. Who was this man? Big-ham. Consequently, the appellant’s identity as the man who was in Kelly’s office and the man who received from Kelly $5,000 in twenty-dollar bills as a bribe not to cut the production of the oil wells of the Shasta Oil Company is sufficient to corroborate the testimony of Kelly. Corroboration, to be sufficient, need only be as to some matter that legally tends to show appellant’s guilt. The corroborating evidence may be circumstantial as well as direct. See Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422; McCue v. State, 75 Tex. Cr.R. 137, 170 S.W. 280, Ann.Cas.l918C, 674.

We have given the motion for a rehearing and every contention urged therein our most careful consideration -but see no reason for receding from our conclusion as expressed in our original opinion.

The motion for a rehearing is overruled.

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.