text:
    VICK v. DUGGAN et ux.
    No. 10724.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1940.
    Rehearing Denied Oct. 30, 1940.
    Wiseheart, Grobe & Wiseheart and T. W. Grobe, all of Houston, for appellant.
    Dodson, Ezell & Duke, of San Antonio, for appellee.
   NORVELL, Justice.

This is an appeal from an order of the District Court of Guadalupe County overruling a plea of privilege. For the purposes of this opinion it is not necessary to discuss in detail the controverting affidavit. It is sufficient to say that plaintiffs below, and appellees here, alleged in their petition and controverting affidavit a cause of action against C. W. Vick, defendant below and appellant here, for damages resulting from the alleged fraudulent procurement of an oil and gas lease upon an undivided one-fourth interest in a tract of land situated in Galveston County and inherited by Duggan from his father. Among other things, it was alleged that Vick, through an agent, represented to appellees that the land was under fence by another party who was asserting title thereto. The appellees lived in Guadalupe County, where the representations were made, and were unfamiliar with the tract of land. They consulted their lawyer, who advised them that the validity of their title was doubtful because of the statute of limitations, assuming of course that the facts related with reference to the adverse user or claim were true. Stated another way, a representation of facts was made which would justify the conclusion that appellees had a chance of title rather than title. It was further alleged that such representations were false and had induced appellees to execute the oil and gas lease in question.

To sustain venue in Guadalupe County as against the plea of privilege of appellant, a resident of Harris County, appellees relied upon Exception No. 7 of Article 1995, Vernon’s Ann.Civil Statutes as amended, which reads in part as follows: “Fraud and Defalcation. In all cases of fraud, * * * suit may be brought in the county where the fraud was committed * * *

In order to sustain venue, it was necessary for'appellees to prove by a preponderance of the evidence the venue facts set out in the exception — that a fraud had been committed in Guadalupe County, that an inducing- representation had been made, and that the representation was false. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Benson v. Jones, 117 Tex. 68, 296 S.W. 865.

The trial court, without a jury, after hearing, overruled the plea of privilege. No findings of fact or conclusions of law were requested, so that all facts supported by the evidence are presumed to be found in favor of the judgment. Texas Creosoting Co. v. Hartburg Lumber Co., Tex.Com.App., 12 S.W.2d 169; Hart v. Huie, Tex.Civ.App., 15 S.W.2d 654.

Appellant’s assignments of error and propositions of law are somewhat general and abstract and raise but one contention, namely, that the evidence is insufficient to support a finding that the representations made were in fact untrue.

This contention is overruled. It appears that within twenty days after appellant had acquired the lease .from ap-pellees, he sold the same to Phillips Petroleum Company for a cash bonus of $100,-000, in addition to an overriding royalty. From this circumstance, the trial court as the trier of facts was authorized to draw the inference that the title was marketable and that the representations relating to supposed adverse user and claims relating to the property were false.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GRISSOM, Justice.

license: Public Domain

text:
    BETTIS et al. v. RAYBURN et ux.
    No. 2051.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 18, 1940.

      T. J. McMahon, of Abilene, and F. M. Fitzpatrick, of Waco, for appellants.
    Stinson, Hair, Brooks &’Duke, of Abilene, for appellees.
   GRISSOM, Justice.

Henry F. Rayburn and wife filed this suit in Taylor County against J. M. Bettis and Jimmie Oldham, residents of McLen-nan County, Texas, to recover danfages for the death of their minor son. The defendants filed pleas of privilege to be sued in the county of their residence. The pleas of privilege were overruled and defendants have appealed.

On the night of March 19, 1939, a truck owned by Bettis and driven by his employee, Oldham (while Oldham was acting within the scope of his employment), struck J. R. Rayburn, the 19 year old son of the plaintiffs, inflicting injuries which rendered him unconscious and caused his death about two hours later.

To maintain venue of the suit in Taylor County plaintiffs relied upon Subd. 9, Art. 1995, R.S.1925, which provides: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.” The allegations of the controverting affidavits were to the effect that plaintiffs’ case came within Sec. 9, Art. 1995, that is, that a crime or trespass was committed by defendants in Taylor County, as follows: (a) Because defendants’ truck was not equipped with adequate brakes, kept in good working order; that said brakes were insufficient to stop said truck within a reasonable and proper distance; (b) “Because said defendants in the operation of defendants’ said truck at said time and place failed to observe the road and especially J. R. Rayburn and keep a proper lookout for persons and especially the sai'd J. R. Rayburn at said time and place and by reason thereof the said defendants struck and killed the said J. R. Rayburn.” (c) Because defendants, after they “discovered the perilous condition of J. R. Rayburn failed to use all means at hand to prevent the striking and killing of the said J. R. Rayburn”; (d) because the driver of the truck had operated it for a period of more than 14 consecutive hours immediately prior to the collision; (e) because the defendants were operating the truck on the highway in excess of 25 miles per hour and were thereby guilty of negligence per se; (f) because defendants were operating the truck at a greater speed than 45 miles per hour, and were thereby guilty of negligence per se. (g) Because defendants were operating the truck in excess of the speed allowed by the laws of Texas “as shown by the facts on the ground in that the truck skidded on the pavement about 14 yards and traveled a distance of 107 yards after striking the person and body of J. R. Rayburn and was thereby guilty of negligence.” (h) Because defendants were negligent in the operation of said truck “at said time and place in that the facts show that said truck struck the body and person of J. R. Rayburn and threw him about 44 yards and then ran over the said J. R. Rayburn with the wheels of said truck and thereby killed the said Rayburn.” (i) That defendants were negligent in that “after they discovered the perilous condition of said J. R. Rayburn they failed to turn their said truck to the left in order to avoid the striking and killing of said J. R. Rayburn.” (j) Because defendants failed to have adequate lights as required by law, and were thereby guilty of negligence per se. (k) Because defendants were negligent in that the driver of the truck was asleep. (1) That the defendants were negligent in that they failed to “yield to said J. R. Rayburn and undertaking to pass the said J. R. Rayburn [on] * * * that part and portion of the road or highway on which the said J. R. Rayburn was traveling at said time and was thereby guilty of negligence per se.” (m) That defendants were guilty of negligence in that the driver failed to stop and render aid.

After a most careful study of the pleadings and evidence we are convinced that a finding that defendants were guilty of a crime or trespass in Taylor County, within the meaning of Subd. 9, Art. 1995, lacks support in either the pleadings or evidence, or both, except as hereinafter men-, tioned. As illustrative only of the reasons for such conclusion we will mention some of the acts of negligence alleged and point out wherein it appears to us that said particular ground of negligence is insufficient by reason of pleading or proof, or both, to support a finding that defendants committed a crime or trespass in Taylor County at the time of the collision. The allegations in paragraph (a) ■ of plaintiffs’ controverting affidavit that defendants’ truck was not equipped with adequate brakes kept in good working order, if sufficient as an allegation of a trespass (and we think it is not), is wholly without support in the evidence. The same is true of the allegation in paragraph (d) that the driver of the truck had operated it consecutively for a period of more than 14 hours immediately prior to the collision, the allegation in paragraph (j) that the defendants failed to have adequate lights, and the allegation in paragraph (k) that the driver of the truck was asleep. The allegation in paragraph (c) that after defendants discovered the perilous condition of Rayburn, they failed to use all means at hand to prevent striking and killing him, if sufficient as an allegation of trespass, does not authorize a finding of trespass, because there is no evidence that the driver of the truck discovered the perilous position of Rayburn. It is essential that plaintiffs establish that Oldham actually discovered the peril deceased was in; it is not sufficient to show that he should have done so. Thurmond v. Pepper, Tex.Civ.App., 119 S.W.2d 900, 904; Texas & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Morgan & Bros. v. M., K. & T. Ry. Co., 108 Tex. 331, 334, 193 S.W. 134; San Antonio & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S.W. 103. (The evidence is to the effect that the driver of the truck did not see Rayburn or his companion. The real controversy in the testimony in this particular was whether or not Oldham’s failure to see Rayburn and his companion as they rode along the highway on their bicycles was due to the fact that Oldham was blinded by the glare'of the headlights of automobiles going east on the highway at the time of the collision. This was disputed.) This statement is equally applicable to the allegation in paragraph (i).

From plaintiffs’ brief it appears they rely largely on the allegations in paragraph (e) to the effect that defendants were operating their truck on the highway in excess of 25 miles per hour, and that defendants were therefore guilty of negligence per se. Art. 827a, Sec. 8, P.C.1925, as amended in 1931, Vernon’s Ann.P.C., provides that it shall be unlawful to operate a commercial motor vehicle, as defined ii: said Act, upon the public highways of Texas at a rate of speed in excess of 25 miles per hour, when such vehicle has “either a registered or actual gross weight of over six thousand (6,000) pounds.” If the evidence were sufficient to make it a question of fact as to whether or not the truck in question was being driven on the highway at, or immediately prior to, the time of the collision at a rate of speed in excess of 25 miles per hour, which is doubtful, it is evident said allegations are insufficient to bring it within the purview of Art. 827a, Sec. 8, P.C. It is merely alleged that defendants operated a truck on a highway in excess of 25 miles per hour. There is no allegation of the weight of the truck, or its contents bringing it within the statute. Such allegation is manifestly insufficient as an allegation of a crime, or as an allegation of negligence per se, or otherwise. In other words, it is not sufficient as an allegation of either negligence or crime to say that a defendant drove a truck on a highway at a rate of speed in excess of 25 miles per hour. Furthermore, we are of the opinion that the evidence does not present a question of fact as to whether or not driving the truck in excess of 25 miles per hour (if it was so driven, and if said act was negligence) was a proximate cause of J. R. Rayburn’s injuries and death.

We are convinced the evidence does raise the issues that failure of the truck driver, Oldham, to keep a proper lookout was negligence and a proximate cause of Rayburn’s injuries. The question then arises whether or not the allegations in paragraph (b) of the controverting affidavits that defendants failed to keep a proper lookout, and that such failure was a proximate cause of deceased’s injuries and death, and evidence supporting said allegations, are sufficient to sustain a finding that defendants, or either of them, committed a trespass in Taylor County.

In Meredith v. McClendon, 130 Tex. 527, 530, 111 S.W.2d 1062, 1064, Justice Sharp said: “To deprive a defendant of the right of trial in the county of his domicile, the case filed against him must clearly come within one of the exceptions found in this statute”, citing Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896. He also quoted with approval from Ricker v. Shoemaker, 81 Tex. 22, 25, 16 S.W. 645, as follows: “In the present case the alleged wrong consists in the negligent omission by the defendants’ representative to do an act which it was his duty to do. Is this a ‘trespass’ within the meaning of the statute? We think not. The words, ‘where the crime, offense, or trespass was committed,’ indicate that the word ‘trespass’ was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do-a duty.”

“A trespass within the meaning of Subd. 9, of Art. 1995, includes injuries to persons or property resulting from wrongful acts, either willfully inflicted or the result of affirmative, active negligence upon the part of the wrong doer, as distinguished from injuries that are the result of the mere omission of duty.” 43 Tex.Jur. 735. Judge Smedley in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93, said: “The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant’s domicile, must allege and prove * * * are those which are stated in the particular exception of article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff’s petition.” To maintain this suit in Taylor County, it was incumbent upon plaintiffs to allege and prove that Old-ham committed an affirmative act of negligence, constituting a trespass, in Taylor County. A. H. Belo Corp. v. Blanton, Tex.Civ.App., 126 S.W.2d 1015, 1024; Id., 133 Tex. 391, 398, 129 S.W.2d 619; Compton v. Elliott, 126 Tex. 232, 236, 88 S.W.2d 91; Longhorn Drilling Corp. v. Padilla, Tex.Civ.App., 138 S.W.2d 164. We think an allegation of negligence to the effect that defendants failed to keep a proper lookout constitutes an allegation of passive, rather than active, negligence. It is an allegation of an omission to perform a duty, rather than an allegation of the commission of an act which it was defendants’ duty not to do. Metzger Dairies v. Wharton, Tex.Civ.App., 113 S.W.2d 675; Lawless v. Tidwell, Tex.Civ.App., 24 S.W.2d 515; Lee v. Caldwell, Tex.Civ.App., 125 S.W.2d 619. Before an action can be maintained agahíst a defendant in a county other than that of his residence under the subdivision of Art. 1995 in question, a negligent act of commission must be alleged and proved. Ricker v. Shoemaker, supra; Connor v. Saunders, 81 Tex. 633, 17 S.W. 236. This is true whether the negligence alleged and proved is negligence per se or common law' negligence. It is not material whether the negligence arises from violation of a penal statute or under the common law. “Whether the negligence constitutes a trespass under the venue statute is determined, in either case, by the same test; and that test, as laid down by our Supreme Court, is whether the negligence he an affirmative act or a mere omission to perform a duty.” Brown v. Calhoun, Tex.Civ.App., 22 S.W.2d 757, 758. Also, see Roadway Transport Co. v. Gray, Tex.Civ.App., 135 S.W.2d 200.

We are of the opinion that the record does not disclose a case authorizing plaintiffs to maintain their suit in Taylor County under the provisions of Subd. $ of Art. 1995. The judgment is reversed and the cause remanded.


author: GRAVES, Justice.

text:
    NEELY et al. v. WOOLLEY.
    No. 11047.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 3, 1940.
    Earl Sharp, of Longview, and Stras-burger, Price, Holland, Kelton & Miller, of Dallas, for appellants.
    Collins, Pate, Hatchell & Garrison, of Lufkin, for appellee.
   GRAVES, Justice.

This appeal is from an $8,000 judgment of the 124th District Court of Gregg County in favor of the appellee against appellants, based wholly upon a jury’s verdict in response to special issues submitted, wherein it was, in substance, found that the ap-pellee’s wife had sustained personal injuries in an automobile accident in Kil-gore, Texas, as a result of the negligence of the appellants and the driver of their car, which proximately caused her to suffer damages in the sum stated.

While there were a number of issues raised during the trial — including a contention upon the part of appellants that Mrs. Woolley had been herself negligent, which proximately caused the accident, in that she “suddenly and without warning opened the door of the car in which she was sitting, it being parked on the wrong side of the street down which appellants’ car was proceeding, preparatory to getting out of her car, thereby causing it to be struck by the appellants’ car” — and while the record brought here of the trial proceedings is very voluminous, it is deemed unnecessary to go further into them, for this reason!

It is made'to undisputedly appear by appellants’ approved and uncontroverted bill of exception No. 1, in substance, as follows :

“That the jury retired to consider its verdict at about 3:15 P.M. on August 25, 1939; that between 6:00 and 7:00 o’clock P.M. on said date last above mentioned, the Court presiding stated that he was going out to his home to eat supper and could be reached by telephone if needed; that he thereupon left the courtroom; that thereupon counsel for the defendants went across the street to a drug store to eat •some sandwiches; that as they returned to the courthouse on the first floor preparatory to going to the third floor where the jury was located, they met the Honorable judge of this Court, who informed them that the jury had written him a note stating that they could not answer Special Issue No. 3 (asking whether or not defendants’ driver had — when the collision occurred — been in any degree under the influence of intoxicating liquor), and desired to have read to them by the Court Reporter all of the evidence bearing on intoxication; and that he had written and sent to the jury a note to the, effect that they should designate the names of the witnesses whose testimony they desired read; that upon returning to the courtroom one of counsel for plaintiff informed attorneys for the defendants that the note stated that the jury stood eleven to one for a ‘Yes’ answer on Special Issue No. 3, and that he had obtained this information from reading the jury’s note itself at a time when counsel for defendants were across the street as above indicated; that counsel for the defendants returned to the courtroom, and shortly thereafter the jury was discharged for the night with instructions to report at 8:30 o’clock A. M. this date.

“That before the jury left for the night the verdict, together with the communication above mentioned, was placed in a sealed envelope and left in the hands of the Court; that this morning the Court handed to Mr. K. J. Preston, one of the jurors, the sealed envelope, and had a conversation with him outside the jury-room, while the other eleven jurors were in the jury-room, at which time the Court in effect told Mr. Preston that it would take half a day to. read all of the evidence on intoxication and that he would not have the Court Reporter read any testimony unless the jury designated the names of the witnesses whose testimony they desired, or the evidence they desired. * * *

“Upon motion for a mistrial being presented to the Court and objection being made to the action of the Court, the Court stated with reference to the communication between juror Preston and the Court, that the oral communication by the Court to the juror Preston outside of the jury-room and outside of the presence of the other eleven jurors, did not differ in any way, and was to the same effect, as the communication of the Court contained in the note above mentioned.”

Conduct on the part of the trial judge — not in legal effect in any material respect differing from that thus appearing in this instance — has been uniformly held by our Supreme Court to constitute reversible error, regardless of the question of whether or not it resulted in injury to the losing party upon the trial. Vernon’s Texas Civil Statutes, Article 2197; Gerneth v. Galbraith Foxworth Lumber Co., Tex.Com.App., 38 S.W.2d 775; Parker v. Bailey, Tex.Com.App., 15 S.W.2d 1033; Texas Midland Ry. Co. v. Byrd, 102 Tex. 263, 115 S.W. 1163, 20 L.R.A.,N.S., 429, 20 Ann.Cas. 137.

Indeed, though deprecating the establishment of 'such a rule, the appellee — upon the record in 'this appeal — confesses error upon the trial court’s part in the action shown, and requests this court “if it .is in accord with the strict rule laid down and followed by the Supreme Court, and is of the opinion that the case must be reversed, to reverse it immediately.” It is needless, to say that this court in such circumstances has no alternative except to follow the law as so repeatedly declared in the cited causes by our own court of last resort.

During the pendency of this cause in this court, two motions made by the ap-pellee have been taken for decision with the case itself, Nos. 11987 and 11988; the first sought consideration of the cause before the court’s summer recess, which has already ended, hence that matter has become moot; the other prayed for a re-taxing of the costs of this appeal, upon a verified statement of facts upon that feature, which has in nowise been controverted by the opposing litigants, in substance as follows: “The official court reporter has charged, for this ‘Question and Answer’ form of the Statement of Facts, an arbitrary amount of about 58 cents per page thereof, or the total sum of Three Hundred and Eighty-eight ($388) Dollars, when such charge — when calculated at the ‘fifteen cents per hundred words’ allowed by statute — should have been One Hundred Ninety-five and 20/100 ($195.20) Dollars; and the district clerk has charged an arbitrary amount of 50 cents per page thereof or a total of Seventy-one and 50/100 ($71.-50) Dollars, for the Transcript, when the actual charge, according to the number of words, and figured at the statutory allowance of ‘for each one hundred words, fifteen cents’, should have been Fifty-one and 58/100 ($51.58) Dollars.”

Obviously, we think, the motion to re-tax is good, and should be sustained, under these authorities. Vernon’s Texas Civil Statutes, Arts. 2238, 2239, 2324, and 2325; Roby v. Hawthorne, Tex.Civ.App., 84 S.W.2d 1108; Vernon’s Civil Statutes, Art. .3927.

The cost bill therefore should be so revised as to allow the official court reporter for compiling the statement of facts only ■fifteen cents per hundred words thereof, instead of the $388 charged, and the district clerk for making up the transcript, “for each one hundred words thereof fifteen cents”, instead of the $71.50 so •charged.

Conformably hereto, the judgment is reversed and the cause remanded; and the trial court is instructed to hear evidence, and then fix the proper charges for this transcript and statement of facts, in accordance with this opinion.

Reversed and remanded.


author: O’QUINN, Justice.

text:
    SCOTT et al. v. ENGLISH et al.
    No. 3765.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 4, 1940.
    'Culbertson, Morgan, Christopher & Bailey, of Fort Worth, Gerald C. Mann, Atty. Gen., and Lee Shoptaw, Asst. Atty. Gen., for appellants.
    Rawlings & Sayers and Reagan Sayers, all of Fort Worth, Leffingwell, Currie & Davis, of Dallas, Herbert L. Smith, and Albert G. Walker, both of Austin, Terry, Cavin & Mills, of Galveston, Andrews, Kelly, Kurth & Campbell and Baker, Botts, Andrews & Wharton, all of Houston, and Thompson & Barwise, of Fort Worth, for appellees.
   O’QUINN, Justice.

This suit grew out of the following facts :

(a) On February 1, .1939, the Railway Commission of Texas (hereinafter referred to as Commission) granted to appellant Frank D. Scott a contract carrier permit No. 11342. This permit authorized Scott to transport under special contract with the Brown Candy & Cracker Company at Dallas, Texas, from Dallas to other points in Texas, to-wit: Amarillo, Wichita Falls, Fort Worth, Waco, Austin, San Antonio, Houston, and Beaumont, certain fragile and perishable commodities, such as candies, cakes and confections for the Browñ Candy & Cracker Company from said company’s place of business in Dallas, Texas, to its various warehouses and representatives in the eight other mentioned cities. The authority in this permit to transport was expressly limited to that type of transportation. Under this permit appellant Scott could move loaded only >in one direction, from Dallas to the points of destination.

(b) On September 18, 1939, appellant Scott filed an application with the Commission requesting authority to add the Texas Brokers, Inc., of Dallas, Texas, as an additional shipper on his contract carrier permit. This application to add the Texas Brokers, Inc., to his permit sought to transport general commodities for the Texas Brokers, Inc. The Commission without any notice, and without any hearing, granted the application the day it was presented, September 18, 1939. The Texas Brokers, Inc., is a corporation organized for the purpose of transporting’ goods, wares and merchandise or any valuable thing generally. This permit granted to Scott on September 18, 1939, adding to his permit as contract carrier was termed an amended permit.

(c) Appellees herein filed suit to set aside the amended permit, and on November 17, 1939, the district court for the 53rd judicial district of Travis County, Texas, entered an order and judgment in said suit can-celling and annulling the order and permit granted by the Commission on said date, September 18, 1939, and permanently enjoined 'appellant Scott from transporting any commodities for the Texas Brokers, Inc., under the authority of said amended permit. No appeal was taken from this judgment, which thereupon became final as to all parties to the litigation.

(d) While the suit next above mentioned was pending, on November 1, 1939, the Commission gave notice to appellees herein and to the public generally that a public hearing would be had on the application of appellant to amend his contract carrier permit (No. 11342) so as to authorize him to transport commodities for the Texas Brokers, Inc. This notice set the matter- for hearing on November 16, 1939, to be held at Austin, Texas. On November 3, 1939, on its own motion, the Commission postponed the hearing set for November 16, 1939, and served notice on appellees that the matter would be heard at a time and place to be thereafter announced by the issuance of new notices. The judgment (above mentioned) entered by the district court of the 53rd judicial district at Austin, Texas, can-celling the permit, was rendered • on November 17, 1939, and became final without an appeal, but on December 21, 1939, without any notice, and without a hearing having been had, the Commission granted appellant’s application theretofore filed permitting him to aád to his contract carrier permit the Texas Brokers, Inc., authorizing him, as a contract carrier, “to transport goods, wares and merchandise for the Texas Brokers, Inc. of Dallas, Texas, between Amarillo, Wichita Falls, Austin, Fort Worth, Dallas, Waco, San Antonio, Houston, and Beaumont.”

On January 24, 1940, the instant suit was brought by appellees, H. E. English, W. A. Johnson, Sproles Motor Freight Lines, Inc., Merchants Fast Motor Lines, Inc., Red Arrow Freight Lines, Inc., T. S. C. Motor Freight Lines, Inc., and Johnson Transport Company, Inc., against appellants, Frank D. Scott, and G. A. Sadler, Lon A. Smith, and Ernest O. Thompson, in their official capacity as members of the Railroad Commission of the State of Texas, to cancel said permit (No. 11342 as amended) and tfr declare said permit void and of no effect, and praying for an injunction against appellants to restrain them from authorizing any operation by virtue of said order or permit.

On February 10, 1940, permission of the court having been had, the Gulf, Colorado & Santa Fe Railway Company, Panhandle & Santa Fe Railroad Company of Texas, Missouri-Kansas-Texas Railroad Company of Texas, Guy Thompson, trustee of the International-Great Northern. Railroad Company, Missouri Pacific Freight Transport Company, Texas & New Orleans Railroad Company, Southern Pacific Transport Company, and Fort Worth & Denver City Railway Company, intervened in 'this suit, each fully and sufficiently pleading its interests and rights as a common carrier of freight in the territory affected and to be affected by the granting to appellant, Frank D. Scott, of his application to amend his contract carrier permit by adding thereto Texas Brokers, Inc., authorizing him to transport goods, wares and merchandise in the territory mentioned in the application and permit as granted, and alleging that no necessity existed for the granting of said application, but that the public generally was amply served by the agencies then serving same, and adopted, in the main, the allegations of the plaintiffs English and others as grounds for cancelling said amended permit granted to said Scott on December 21, 1939, and prayed that same be cancelled, annulled and held void and that he be permanently enjoined from operating under or by virtue of same.

Appellants duly answered. The case was tried to the court without a jury, and resulted in a judgment- for appellees which set aside and cancelled the order of the Commission of date December 21, 1939, permitting appellant Scott to transport goods, wares and merchandise for Texas Brokers, Inc. This appeal is by Frank D. Scott from that judgment.

By his first assignment, appellant insists that he being a contract carrier operating under a contract carrier permit (No. 11342) no notice nor hearing was required, under the statute, in order for the Commission to authorize him to add one additional contract to his contract carrier permit so that he would thereafter be authorized to transport for this one additional shipper (Texas Brokers, Inc.) over the same routes and between the same termini, he being .at that time authorized to transport for only one shipper, namely, the Brown Candy & Cracker Company. We think the contention is without merit. The facts were: Scott had a contract carrier permit (No. 11342) authorizing him to transport for the Brown Candy & Cracker Company at Dallas, Texas, calces, candies and confections from Dallas to Amarillo, Wichita Falls, Fort Worth, Waco, Austin, San Antonio, Houston, and Beaumont. Because of the fragile and perishable nature of these commodities, special equipment for carriage must be furnished, and quick deliveries be made to the warehouses of the company or to its agents at the several points of destination. The commodities all went from Dallas to the eight points of destination. No return freight was available because his permit was to transport for the Brown Candy & Cracker Company only and it had no return or incoming freight to be^ transported back to Dallas. The additional shipper he sought to transport for, the Texas Brokers, Inc., was organized for the purpose of gathering freight — goods, wares and merchandise generally for the purpose of transportation from the points where secured to any other-point in Texas, but did not itself transport the commodities, securing the transportation by contract with some carrier. Appellant, if his contract carrier permit be amended allowing him to transport commodities for the Texas Brokers, Inc., could haul anything it could get for him to transport going in any direction between the eight cities above named. His shipments could originate at any one of the nine cities and they could be destined to any one of the others. Thus he could always move loaded instead of having commodities to be transported from Dallas to one of the points allowed in his original permit. Under the amended pdrmit he would become a general freight carrier in competition with appellees in the whole territory covered by the permit.

Article 911b, Section 6(c), among other things, provides: “No application for permit shall be granted by the Commission until after a hearing nor shall any such permit be granted if the Commission shall be of the opinion that the proposed operation of any such contract carrier will impair the efficient public service of any authorized common carrier or common carriers then adequately serving the same territory,” etc.

Section 11 of Article 911b, provides: “Upon the filing of said application for a certificate or permit, the Commission shall fix a time and place for hearing, and the place of hearing shall be in the City of Austin, Texas, unless otherwise ordered by the .Commission.”

These provisions are mandatory. Nothing relative to the procedure mentioned is left to the construction of the Commission. The language is plain, unambiguous, and hence not open to construction by the Commission. Railroad Commission v. Red Arrow Freight Lines, Inc., Tex.Civ.App., 96 S.W.2d 735, writ refused. The appellees were common carriers serving -the territory in which appellant desired to transport freight generally for Texas Brokers, Inc. They alleged that public necessity did not require that appellant be given the authority to transport commodities in that territory to give necessary service to the public. How could the Commission determine that question without a hearing? In order to ascertain the facts and determine the necessity or lack of same, the law very properly required that a hearing be had. The. Commission must have had doubts about their method of procedure for it first set the application for hearing and gave notice to the interested parties of the time and place where the hearing would be had, but shortly afterwards on its own motion postponed the hearing, and gave notice that the hearing would be had upon notices to be later issued^ For some reason the matter was not again set for hearing, but without any notice and without any hearing, it granted appellant’s application, and authorized him to add to his contract carrier permit Texas Brokers, Inc., with whom he could contract to transport its freight anywhere between the several cities mentioned in his application, thus authorizing him to carry freight of any character, in any direction, at any time, in transporting freight for Texas Brokers, Inc., in competition with appellees who were then serving the public in that territory. This action in granting the application and issuing the permit without any notice and without any hearing was in the ■very teeth of the statute, and therefore unlawful and void. Sunset Track Lines, Inc. v.. Railroad Commission, Tex.Civ.App., 134 S.W.2d 373.

What we have said disposes of the appeal and renders a discussion of the other points presented unnecessary. The judgment should be affirmed and it is so ordered.

Affirmed.


author: NORVELL, Justice.

text:
    BENKENDORFER et al. v. GARRETT et al.
    No. 10735.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 9, 1940.
    Rehearing Denied Oct. 30, 1940.

      Boone, Henderson, Boone & Davis and Allen V. Davis, all of Corpus Christi, for appellants.
    Thomas J. Newton and J. Marvin Ericson, both of Corpus Christi, for appellees.
   NORVELL, Justice.

This is an appeal from a judgment of the 117th District Court of Nueces County awarding plaintiff, G. O. Garrett, a judgment for $700 against defendants, J. M. Benkendorfer and J. P. Benkendorfer, who have appealed.

The parties will be designated as in . the trial court.

Upon proper request, the trial judge filed his findings of fact and conclusions of law which sufficiently state the nature of plaintiff’s claim. The trial court found that defendants were operating a partnership in Corpus Christi under the name and style of “Dr. Pepper Bottling Company,” manufacturing and delivering to retail dealers a certain beverage under the trade name of “Dr. Pepper.” That on October 8, 1938, the defendants, through a servant or agent, delivered to plaintiff, a retail dealer in the City of Corpus Christi, a number of bottles of Dr. Pepper. That two days later, on October 10th, one of said bottles exploded as plaintiff took hold of it for the purpose of removing it from its case and placing it in a beverage cooler, resulting in injuries to plaintiff’s right hand. The trial court further found from “clear and convincing evidence,” that the bottle which exploded remained with several other bottles of the beverage in the case in which it was delivered to plaintiff from the time of .such delivery until the explosion occurred; that said bottle was not moved or molested by any one, save and except that the case in which the bottle was resting was shifted to the top of the box of another case of Dr. Pepper by a servant of the defendants on the day after delivery thereof, that is on the 9th day of October.

The court further found that the plaintiff had no knowledge of the reason which caused the bottle to explode; that all the facts and circumstances surrounding and concerning the manufacture, bottling, capping and handling of said bottle of Dr. Pepper were peculiarly within the knowledge of defendants, their servants and agents.

The court further found that the defendants were negligent in the manner in which they manufactured, bottled, capped and delivered the bottle of Dr. Pepper to-plaintiff’s store; that such negligence was-the proximate cause of the explosion and the resulting injury and damage in the sum of $700.

The trial court concluded as a matter of law that the doctrine of res ipsa loqui-tur applied to the facts of this case. The defendants, as appellants before this Court, attack this conclusion as well as the fact findings upon which it is based. If defendants are correct in the contention that the doctrine of res ipsa loquitur has no application the case must be reversed. The plaintiff in this court urged no other theory to sustain the judgment.

In our opinion neither the plaintiff nor defendants have cited a Texas authority which is controlling in the particular fact situation presented by the record here, and we have been unable to find such a case. The nearest Texas case on the facts is that of Alagood v. Coca Cola Bottling Co., Tex.Civ.App., 135 S.W.2d 1056, 1061, by the Fort Worth Court of Civil Appeals, writ dismissed WOJ correct judgment.

In the Fort Worth case, it appeared that Mrs. Alagood, one of the appellants, was injured when a glass bottle filled with carbonated beverage by one of the appel-lees exploded. The jury verdict in the case was adverse to the appellants upon certain acts of negligence alleged. Appellants’ petition did, however, contain an alternative count based upon the res ipsa loquitur theory, and the opinion of the Fort Worth Court of Civil Appeals discusses this doctrine as applied to the particular facts of that case. In that opinion it is said: “We have some doubt that the rule of res ipsa loquitur finds any application to this case. It requires a very liberal construction of the principle involved in that expression to bring this case within the rule. From the evidence it is indisputably true that defendant chose the bottles in which to place its manufactured beverage and to thus sell it to the plaintiffs, who were dealers and expected to resell to consuming customers. That after plaintiffs received the bottle of coca cola from defendant’s deliveryman, it s'at on the floor of the store for a period of time not shown, and when plaintiffs attempted to place it in the refrigerator, it exploded and injured Mrs. ^la-good. From this it will be seen that the offending object, which inflicted the injury/ was not in the possession or control of defendant at the timé of the casualty. How long it hod been in the complete custody and control of plaintiffs, and what, if anything, had happened to the bottle zvhile in plaintiffs’ possession, does not appear in the evidence.”

The case at bar differs from the Alagood case in that here the trial court found that the particular bottle of Dr. Pepper which exploded was not moved or molested by any one from the time of its delivery until the explosion occurred, except in the particular instance mentioned in the court’s findings when the case in which the bottle was situated was moved by one of defendants’ servants.

This matter of defendants’ liability presents two questions:

1. Does the finding of the trial court that the bottle which exploded was not tampered with or molested in any way from the time of its delivery to plaintiff’s store until the explosion, render the doctrine of res ipsa loquitur applicable?

2. If the first question be answered in the affirmative, then is the trial court’s finding supported by the evidence?

The statement contained in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.1914D, 905, relating to the doctrine of res ipsa loqui-tur, has been approved by Texas Appellate Courts (Gulf, C. & S. F. Ry. Co. v. Dunman, Tex.Com.App., 27 S.W.2d 116, 72 A.L.R. 90; Alagood v. Coca Cola Bottling Company, supra), and is as follows: “In our opinion, res ipsa loquitur' means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.”

There' are certain fact situations which render the doctrine of res ipsa lo-quitur inapplicable. Some of these are set out in the Alagood case.

“ * * * where the evidence shows that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the doctrine of res ipsa loquitur does not apply.” Davis v. Castile, Tex.Com.App., 257 S.W. 870, 872.

Before the doctrine can be applied “the evidence must show that the thing causing the accident was under the control of the defendant at the time of the accident.” Alagood v. Coca Cola Bottling Co., supra; Carter Oil Co. v. Independent Torpedo Co., 107 Okl. 209, 232 P. 419; Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859.

There are' however fundamental factors which differentiate cases “involving merchandise inflicting injury upon first or prior to being put to its intended use, especially food and drink intended for human consumption, marketed in sealed containers,” Tayer v. York Ice Machinery Company, 342 Mo. 912, 119 S.W.2d 240, 244, 117 A.L.R. 1414, from other cases in which the doctrine is sought to be applied. In such cases, it is not necessary that the instrumentality causing the injury be within the physical control of the person sought to be held liable under the doctrine.

As stated in the case of Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866, 871: “There is nothing * * * in the reason for the rule [res ipsa loquitur] or in the principles upon which it is founded to support the contention that its application is limited to cases where the injurious agency is in the control of the defendant at the time of the injury, but it is sufficient if it' appears that such agency was in his control at the time of the negligent act which caused the injury.”

In the case of Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087, 1088, it is said: “Granting, for the sake of the argument, that, prima facie, inferential negligence will be imputed to the person who sold the bottle to plaintiff’s brother, or to the brother himself, the inference is completely rebutted when it affirmatively appears, as it does here, that neither was at fault, that neither handled the bottle improperly, or did anything to change the condition from that in which it was when received. Since for every effect there is a cause, where negligence exists, some one must have been the responsible author. If he can be found, it is right that he should pay the penalty. The bottle exploded. Inferentially some one was negligent. It was not Cook, the last vender -of the bottle, nor the plaintiff’s brother, nor the plaintiff, nor yet Barnett, because they all stand exonerated by direct or circumstantial evidence of their freedom from fault. But the. inference of negligence remains, and some one is prima facie to blame. By a process of elimination we get back to the manufacturer, who set the dangerous agency in motion, and upon whom the blame ought inferentially to be fastened.”

The case of Stolle v. Anheuser-Busch, 307 Mo. 520, 271 S.W. 497, 499, 39 A.L.R. 1001, is similar upon the facts to the case at bar. The plaintiff sued for the loss of services of his wife and medical and other expenses incurred as a result of personal injuries to her caused by an explosion of a bottle of Budweiser. The petition alleged that plaintiff’s wife was in a butcher shop when a customer set a bottle of Budweiser upon the counter, which had been purchased from an adjoining grocery store, and where a few minutes later it exploded and injured plaintiff’s wife. A demurrer to the petition was sustained and the Supreme Court of Missouri in reversing this ruling quotes with approval from Riecke v. Anheuser-Busch Brewing Ass’n, 206 Mo.App. 246, 227 S.W. 631, 632, the following with reference to the Payne case above mentioned: “ ‘The case of Payne v. Rome Coca-Cola Co. [supra], applies the doctrine even to a case where the bottle exploded in the hands of a dealer, and where the bottle had passed through several hands since leaving the possession of the defendant. This was upon the theory that the evidence showed that due care had been exercised by all of the parties who handled the product since it left the defendant’s possession, and upon this proof the burden was then cast upon the defendant to show that it was free from negligence in the manufacture of the bottle and its contents.’ ”

In the case of Tayer v. York Ice Machinery Corporation, supra, the Supreme Court of Missouri said: “The Stolle Case affords interesting study for analysis when read in the light of the cases therein mentioned (also cited by respondent). They, broadly speaking, apply the rule to cases wherein a sealed bottle of carbonated beverage explodes when supported by attending testimony establishing the proper handling of the bottle subsequent to its leaving the control of the manufacturer of the beverage(Italics ours)

The defendants cite the case of Loebig’s Guardian v. Coca-Cola Bottling Company, 259 Ky. 124, 81 S.W.2d 910. Certain expressions in that case are contrary to the holdings of Payne v. Rome Coca-Cola Bottling Co., supra, and Stolle v. Anheuser-Busch, supra, particularly in that the Kentucky Court of Appeals apparently gives no weight to the proof that the particular bottle involved was kept at its place of delivery without molestation until picked up immediately prior to its explosion.

We are of the opinion that the greater weight of American authority and better reasoning support the rule annun-ciated by the Georgia and Missouri Courts in the cases above discussed. We there.fore hold that the trial court’s finding that the bottle in question was not molested or moved in any way, except by defendants’ servant, from the time of delivery un•til the explosion, rendered the doctrine of res ipsa loquitur applicable, and, further, that the trial court in applying the doctrine was authorized to draw the conclusion that the explosion of the bottle was the result of the negligence of defendants.

W& have examined the evidence relied upon to support the trial court’s finding in the particular above discussed, and conclude that defendants’ assignments attacking the finding as being without support of the evidence are not well taken. Defendants seemingly contend that plaintiff was under the burden of proving conclusively that nothing could have happened to the bottle while in plaintiff’s possession which might have weakened the bottle or caused the explosion. For instance, it is insisted that plaintiff’s proof is insufficient •because he was unable to testify positively that none of his employees had moved the bottle or that a small child had not thrown •or dropped something, hitting the bottle. It was incumbent upon plaintiff to establish that nothing had happened to the bottle while in his possession which would have contributed to or caused the explosion. His burden was to establish this fact, like any other fact, by a preponderance of the •evidence, and not beyond a peradventure.

Defendants further contend that the amount of damages — $700—was excessive considering the extent of plaintiff’s injury. In connection with defendants’ assignment, we have examined plaintiff’s testimony as well as that of a physician who was a witness in the case. The real issue involved is the credibility of plaintiff as a witness, and this is a matter within the jurisdiction of the trial court as the trier of fact issues. Taking plaintiff’s testimony as to his injuries and resultant suffering as true (as we necessarily must do in view of the trial court’s holding), we can not say that the award of damages in the judgment is excessive. Morris v. Drescher, Tex.Civ.App., 123 S.W.2d 958; Shropshire v. Jones, Tex.Civ.App., 129 S.W.2d 480; Burnett v. Anderson, Tex.Civ.App., 207 S.W. 540.

Finding no reversible error, defendants’ assignments are overruled and the judgment of the trial court is affirmed.


author: MOORE, Chief Justice. CRITZ, Justice.

text:
    CITY OF GALVESTON v. MANN, Atty. Gen.
    Motion No. 14664.
    Supreme Court of Texas.
    Oct. 23, 1940.

      Bryan F. Williams, City Atty., of Galveston, for relator.
    Gerald C. Mann, Atty. Gen., and Clarence E. Crowe, Jr., Claud O. Boothman, and Geo. W. Barcus, Asst. Attys. Gen., for respondent.
   MOORE, Chief Justice.

This is an original proceeding by the City of Galveston, as relator, against Gerald C. Mann, Attorney General, as respondent, in which it prays that a writ of mandamus issue requiring the Attorney General to approve two series of bonds of relator, one in the total amount of three hundred thousand dollars, which are to be general obligations of the City, payable from proceeds of taxes to be levied by the City, and the other in the total amount of one million dollars, to be payable solely from the income and revenues arising from the operation of properties which relator proposes to construct with their proceeds. The Attorney General 'has refused to approve these bonds upon grounds that will hereinafter be stated.

By agreement, this proceeding has been heard upon relator’s motion to file petition for the writ of mandamus and upon the merits, and it has been submitted upon oral arguments and briefs by both parties.

It is alleged in relator’s petition for mandamus that the territory of the City embraces the eastern end of Galveston Island, with a frontage upon the Gulf of Mexico along which there exists a seawall with a wide, paved boulevard adjacent thereto upon the inland side of the seawall, and that the beach and waters of .the Gulf of Mexico are upon the outer side; that because of its location upon the shores of the Gulf, the City is highly attractive to tourists who, to the extent of many thousands, visit it annually and particularly during the summer months, seeking rest, amusements, and diversions offered by a seashore resort; that there are not available to relator desirable or suitably located tracts of upland along the beaches and adjacent to the waters of the Gulf upon which it is reasonably practicable for relator to locate and maintain a park or place containing facilities to afford fishing and other sports for the large number of its visitors, as well as its own inhabitants, but that such facilities may be adequately and attractively provided “by constructing them upon a suitable pier or elevated structure extending from the shore into and over the waters of the Gulf of Mexico which, in addition to providing in the best manner, places for rest, comfort,' diversions and amusements and other sports for the public, will provide a place for fishing in the deeper waters of the Gulf in a manner superior to any other which could be reasonably employed to afford op-' portunities for such sport to the members of the public desiring to engage in the same.”

Relator states that in seeking to provide such facilities, the City has entered into a tentative agreement with the Reconstruction Finance Corporation, whereby that corporation has agreed to loan one million dollars for the construction of such improvements against revenue bonds of the City, but upon condition that the City supply from other sources any funds, not exceeding three hundred thousand dollars, which may be necessary to defray any cost of constructing and equipping the facilities in excess of the one million dollars.

It is provided between the City and the Finance Corporation that these bonds shall be “additionally secured by a Deed of Trust, constituting a first mortgage upon the real estate, fixtures and chattel property of the Facilities.” The granting clause of this proposed deed of trust describes the properties to be mortgaged, as follows: “The certain tract or parcel of land in the City of Galveston, County of Galveston, Texas, bordering upon the Gulf of Mexico and lying south of the southerly boundary of the Galveston County Seawall right-of-way, between two lines extending into the waters of the Gulf of Mexico parallel with the extensions of the east and west lines of Twenty-Fifth Street, sometimes known as Rosenberg Avenue, one of such lines beginning at a point on the southerly or shoreward boundary of the Galveston County Seawall right-of-way, three hundred and forty (340) feet east of the intersection of an extension of the east line of said Twenty-Fifth Street with such boundary of such right-of-way, and the other of such lines extending from a point on. such boundary of such right-of-way, three hundred and forty (340) feet west of the intersection of an extension of the west line of said Twenty-Fifth Street with such boundary of such right-of-way, together with all and singular all riparian rights and privileges and all other rights and privileges in anywise incident or appurtenant to such land and to any part thereof, and all titles, easements, rights, privileges, permits and interest of any character in, to or upon any adjacent land, submerged land and waters acquired or hereafter acquired by the City of Galveston for use and occupancy in the erection, construction, maintenance and operation of the improvements hereinabove described and designated as the Facilities and further any and all improvements made and to be made upon the above described land and in, over or upon waters adjacent thereto by the City of Galveston constituting the Facilities, or used in connection therewith.”

This indenture also contains provisions for the sale by the named trustee, or substitute trustee, of the properties upon the happening of any one or more events constituting defaults as therein defined, and that upon any such sale the trustee shall execute and deliver to the purchaser a conveyance of the properties so sold, and that the purchaser thereunder shall have and is granted by the City a franchise to operate such facilities for a period of twenty years.

Both the series of bonds in the amounts above stated have been authorized by the action of the City Council and by the vote of the qualified voters of the City. No question is raised as to the regularity of these proceedings by the Attorney General.

The Attorney General bases his objections to the issuance of these bonds on the ground that it appears that the entire proceeds of both these issues are to be used in the erection of a pier out into the Gulf of Mexico, and that no portion of such improvements will -be on land owned by the City of Galveston or of which it has control; but to the contrary, the land on which the City proposes to erect such improvements is submerged land in the Gulf of Mexico which belongs to the State of Texas, and that relator has no power “to mortgage any portion of the Gulf of Mexico to secure the bond indenture.”

The relator and the respondent have filed what is called an “Agreed State of Facts,” which simplifies to some extent the fact questions involved in this proceeding, and which is here quoted in full, viz.:

“The parties agree that the seawall at the place where the pier will be built at Galveston is built approximately 500 feet from what was some twenty years ago the high tide of the Gulf of Mexico; that after the seawall was built, about 1905, the high tide of the Gulf about twenty years ago came up to said seawall and constantly since said time all of the land lying on the Gulf side of the seawall at the place where the pier is intended to be built has been within the high tide waters of the Gulf.

“The County of Galveston has lying immediately adjacent to and on the outer side of the seawall a strip of land approximately ninety (90) feet wide which it acquired as a right-of-way for said seawall; that about 594 feet from said 90 feet and to the seaward thereof the property was originally above the high tide of the Gulf; that the City of Galveston expects to obtain the right-of-way or permission from Galveston County and from the parties who formerly owned the land that was above the original high tide either by purchase or by gift for the purpose of constructing said proposed pier.

“That the proposed pier to be built will extend from the land acquired or to be acquired by relator approximately 500 or 600 feet into the Gulf of Mexico beyond what was originally the high tide and the funds received from the sale of the bonds will be used to build the entire pier as one unit and said pier will be, when' completed, approximately 1200 feet in length and extend to the deep water in the Gulf of Mexico and with the exception of the fishing platform at the end thereon will be about 27 feet above the surface of the water. That the fishing platform will be at the extreme end of Pier out in the Gulf and will be about 310 feet long and about 40 feet wide and about -feet above the surface of the water.”

Relator in his written reply to the answer of the Attorney General, while not disputing the State’s ownership of the bed of the ocean at the applicable place, nevertheless contends that it does not follow that the City in the event it becomes the owner of the land adjacent to the ocean bed, now owned by the State, cannot, as appurtenant to its littoral or riparian rights, when thus acquired, “build its pier out into and over the ocean bed and waters in front of its land.”

Following the last quoted statement, relator says:

“By amendment to relator’s petition it is shown that there is land over which approximately one-half the pier will be built which though now submerged has been in the past upland, not submerged and under private ownership of owners claiming under valid grant. And it is further shown that relator intends to acquire ownership of that land, or in the case of the seawall right-of-way to use and occupancy, and establish a park thereon and build its pier for approximately one-half its length over and upon the same with the balance of the pier extending from such lands into the waters of the Gulf.

“It is relator’s contention:

“(1) That the rights of the-owners in the above mentioned land which have become submerged in the manner stated in the petition, that is, suddenly by or as aftermath of violent hurricanes or storms have not been lost.

“(2) That the owners of such lands have littoral or riparian rights in the waters and ocean beds which they adjoin, which rights include the right to occupy such adjacent ocean beds and waters with such a structure as relator proposes to erect thereon, which rights relator intends to acquire and exercise.”

Since the submission of this proceeding, and on October 10, 1940, relator has filed, with the permission of the Court, an additional brief, by which it further contends that the Legislature has already invested the City of Galveston with the power to permit such a structure as relator proposes to construct by virtue of Section 40 of the City’s charter granted by special act of the Legislature in 1905, Sp. Laws 1905, c. 29, p. 254, which reads as follows: “The board of commissioners shall have power to- regulate and determine the time and place of bathing and swimming in the waters adjoining or within said city and to prevent any obscene or indecent exposition, exposure or conduct;, to regulate by general ordinance the char-' acter and construction, and prohibit the use for any improper or unlawful purpose of-bath houses,1 pavilions, restaurants, fishing. piers and other structures in the waters adjacent to the beach of the city, to regulate tjie construction of approaches to such structures so as not to unreasonably obstruct or interfere with the drive on said beach * * * »

Relator says that the City has thus been granted by the Legislature the power to permit the occupancy of the public waters and ocean bed by. such a structure as the one here involved, in that the above quoted act constitutes a grant from or permission by the State to erect and maintain structures of the kind therein named into the public waters adjacent to the City of Galveston. ,

It is established law that mandamus will not issue to compel a public officer to perform an official act unless the relator has shown a clear legal right to its performance at the hands of such officer. The object of the writ is to enforce the performance of the duty when the relator has no other adequate means of redress, and it is further shown that the officer has clearly violated his duty in not performing the act sought to be required of him. It follows that the writ will not issue if the right is doubtful or contingent upon further acts of relator or others. And it has been held that this is particularly the case where the interest of third persons is involved. These principles were well announced in the case of Common School District No. 16, Lampasas County v. Keeling, Attorney General, 113 Tex. 523, 261. S.W. 364, 365. In that case the School District filed with the Supreme Court a petition "for mandamus to require the Attorney General to approve the issuance of bonds by said district, which the Attorney General had theretofore refused to approve. In brief, the facts were that the Commissioners’ Court of Lampasas County on June 8, 1921, ordered an election in said district to determine whether or not the bonds in question should be issued. The, vote for such bonds was favorable, but in the meantime and about one month subsequent to the date of such order but before, the issuance of the bonds, a portion of said Common School District was annexed to an. Independent School District, and the Inde-. pendent School District had also issued a series . of bonds. The reason which the Attorney General then gave for refusing to-approve the bonds, of the Common School District was that a portion of the territory which had formerly been included in that district ceased to be a portion of that district and had been annexed to the Independent School District, and that by approval of the bonds the taxpayers of this added territory would be subject to double taxation. In the opinion written by Chief Justice Cureton, the Court said:

“It is elementary that a public officer will not be mandamused unless he has a clear legal duty to perform. * * * In the instant case the Attorney General would have been compelled to hold that the territory taken from common school district No. 16, and added to the Evant district, was not lawfully incorporated within the latter district. This holding would necessarily have been a holding without authority of law to enforce it, and would not have been binding upon the Evant district, nor any of its inhabitants. * * *

“It is clear, we think that the Attorney General would not have authority to approve the bonds for common school district No. 16 until and unless a direct action is brought in the proper court and the added territory severed from the Evant district by a court decree. * * * Since the annexation of the added territory was at least de facto, its integrity could not be questioned by the Attorney General in an ex parte proceeding before him for the approval of bonds of another district; nor can it be challenged in this proceeding, which is a collateral one.”

In the case of Holcomb v. Robinson, Commissioner of General Land Office, 118 Tex. 395, 15 S.W.2d 1027, 1028, relator had filed in the Supreme Court a petition for manda-r mus praying for the issuance of a writ requiring the Land Commissioner to approve the field notes of a certain parcel of land lying contiguous to the south bank of Red River in Cooke County, which was alleged to be unappropriated public free school land. The Gainesville Red River Bridge Company, a corporation, and a private individual were also named as respondents in the petition. The Court said: “It is clearly apparent that the pleadings present an issue of fact necessary to be determined by a court of competent jurisdiction, in order that the lawful rights of the relator may be ascertained with respect to this land. Relator alleges the land is a part of the public domain, belonging to the unappropriated public free school fund. Respondents allege it is private property, the title to which is evidenced by a valid patent. Mandamus will not issue to compel a public officer to perform an official act unless the complaining party shows a clear right to such performance and a clear duty to perform by the officer. Neither the right nor the duty can be , thus shown, where an isstte of fact is raised by the pleadings, duly authenticated. This being the situation, the Supreme Court has no jurisdiction of the suit, which should be dismissed.”

And in the case of Teat v. McGaughey Commissioner of General Land Office, 85 Tex. 478, 22 S.W. 302, 303, the Court said that it was clearly of the opinion that the right of mandamus was intended neither by the Constitution nor by the statutes to confer jurisdiction upon this Court to try a case on mandamus in which the act which is sought to be compelled may involve the determination of a doubtful question of fact; that the machinery of the Court was not adapted to the trial of such a cause; and that it was not intended that the Supreme Court should exercise that jurisdiction in any case, “unless the officer was under a clear legal obligation to do the act, and the right to have it performed was not dependent upon the determination of any doubtful question of fact.” See also Texas Jurisprudence, vol. 28, p. 533 et seq. where the authorities quoted from and many others are listed.

For reasons that aré convincing, as will hereinafter be shown, the State is, at the least, the apparent owner of the tide lands over which the relator proposes to erect these structures, as well as being the unquestioned owner of the land beneath “the deep waters of the Gulf,” over which such structure is also proposed to be erected.

The State in its sovereign capacity is not a party to this proceeding; nor are the alleged “former owners” of such tide lands. In any contest between the State and such claimants, issues of law and fact which cannot be here determined would necessarily be invoked in such a trial.

It is pertinent here to review briefly the legal history of the State’s ownership of the waters and submerged lands of the Gulf of Mexico. On December 19, 1836, it was enacted by the Senate and the House of Representatives of the Republic of Texas that from and after the passage of that Act, the civil and political jurisdiction of the Republic was declared to extend to the following boundaries, to wit: “Beginning at .the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, thence up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude, thence along the boundary line as defined in the treaty between the United States and Spain, to the beginning.” Gam-mel’s Laws of Texas, vol. 1, p. 1193. In the Resolution of the Congress of the United States pertaining to the Annexation of the Republic of Texas as a State into the Federal Union, of date March 1, 1845, 5 Stat. 797, it was provided that the Republic retained for the State “all the vacant and unappropriated lands lying within its limits,” subject only to the superior rights of navigation of the Federal government in the navigable waters of the State. Article 4026, R.C.S. 1925, which is a re-enactment of a prior statute, provides, in part, as follows: “All of the public rivers, bayous, lagoons, creeks, lakes, hays and inlets in this State, and all that part of the Gulf of Mexico within the jurisdiction of this State, together with their beds and bottoms, and all of the products thereof, shall continue and remain the property of the State of Texas, except in so far as the State shall permit the use of said waters and bottoms, or permit the taking of the products of such bottoms and waters, * *

Article 7467, R.C.S.1925, provides, in part, as follows: "The waters of the ordinary flow and underflow and tides of every flowing river or natural stream, of all lakes, bays or arms of the Gulf of Mexico, and the storm, flood or rain waters of every river or natural stream, canyon, ravine, depression or watershed, within the State of Texas, are hereby declared to be the property of the State, * *

This Court in many important decisions has zealously guarded and enforced the rights of this State to the public lands of the State as provided and guaranteed to it in the foregoing resolutions of the Republic of Texas, the resolutions of the United States Congress appertaining to the annexation of the Republic of Texas, and in the Acts passed by the Legislature of the State of Texas. And by virtue of Article 5416, R.C.S. 1925, Vernon’s Ann.Civ.St., art. 5416, which is a re-codification of an older statute, this Court has also many times held that the lands included “in lakes, bays, and islands along the Gulf of Mexico within tidewater limits” are exempt from the unappropriated public domain set aside for public school purposes, and that all such lands are held in trust by the State for the benefit of all the inhabitants of the State. One of the latest expressions of the Court on that subject is contained in the case of the State of Texas et al. v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1069, where, in an opinion written by Sharp, J., then a member of the Supreme Court Commission and now a member of this Court, it was said: “The rule long has been established in this state that the state is the owner of the soil underlying the navigable waters, such as navigable streams, as defined by statute, lakes, bays, inlets, and other areas •within tidewater limits within its borders.”

In the case of Crary v. Port Arthur Channel & Dock Co., 92 Tex. 275, 47 S.W. 967, 970, where, in answering a contention made in that case as to what is included in the term “the waters of the gulf,” the Court said: “The contention seems to be made that by ‘the waters of the gulf’ is meant the gulf itself. But we think the language in question is far more comprehensive than it would have been had the statute read ‘from the Gulf of Mexico.’ We are clearly of the opinion that the terms are sufficiently broad to embrace at least all bays, inlets, and streams upon the gulf coast, to the extent to which they are subject to the ebb and flow of the tide.” (All italics ours.)

We therefore repeat that the fundamental principle underlying the title and rights of the State in lands under navigable waters, including the land subject to the ordinary ebb and flow of the tides, is held by the State in trust for all the people, and that the words “public lands” in the statute conferring rights upon individuals will be held not to apply to the soil under navigable waters, that is to say, that the trust so imposed upon the State with respect to its title to such lands necessarily withdraws the same from the operation of the general provisions conferring upon the Land Commissioner the right to contract for the sale or lease of public school land. In addition to the cases cited, see De Meritt v. Robison, Commissioner, 102 Tex. 358, 116 S.W. 796; Landry v. Robison, Com’r Gen. Land Office, 110 Tex. 295, 219 S.W. 819; City of Galveston v. Menard, 23 Tex. 349; Hynes v. Packard, 92 Tex. 44, 45 S.W. 562; Galveston City S. B. Co. v. Heidenheimer, 63 Tex. 559; State v. Jadwin, Tex.Civ.App., 85 S.W. 490, writ refused; Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847; Tex.Jur. vol. 34, p. 20 et seq. Hence, title to such lands may only be acquired, if at all,. by grant expressly authorized by the Legislature of the State. City of Galveston v. Menard, supra.

It appears from the “Agreed State of Facts,” and also as argued by relator on submission, that the City of Galveston does not claim to be the present owner of the land underlying any of the waters of the Gulf of Mexico on and over which the City proposes to construct these extensive improvements, which are to extend from the seawall, at right angles, a distance of twelve hundred feet out into the Gulf of Mexico; but that it is proposed by the City to obtain a right of way or permission to so much of said land as has thus been subjected to the tides for twenty years, first, from the County of Galveston to the extent of ninety feet adjoining the seawall, and the balance of the tide land “from the persons who formerly owned the land that was above the original high tide either by purchase or by gift,” and that such persons are claiming under a valid grant. As we interpret relator’s further position, it is, that having once, acquired the tide lands from such “former owners,” the City will thereby become a riparian owner of the land bordering on the deep waters of the Gulf, and then as an asserted incident to its riparian rights, it will be authorized to construct said pier or improvements over the waters of the Gulf of Mexico and on the land beneath such waters the additional distance of five or six hundred feet without obtaining any right from the State so to do.

The Court is of the opinion and here holds that the erection of a structure such as relator proposes to build, of the size and dimensions as above outlined, and at a distance of six or seven hundred feet over and under the tide waters of the Gulf, and at the further distance of approximately six hundred feet into the deep waters of the sea, would be an encroachment, at the least, upon the prima facie property rights of the sovereign, that is, the State, so far as the tide lands are concerned, and an encroachment upon the unquestioned property rights of the State in so far as such structure is proposed to be projected out into the deep waters of the sea. Such a structure in legal phraseology would constitute a purpresture, which would be subject to be removed at the instance of the State, whether the same should tend to obstruct navigation or otherwise. Petty v. City of San Antonio, Tex.Civ.App., 181 S.W. 224, writ refused; Weber v. State Harbors Com’rs, 18 Wall. 57, 85 U.S. 57, 65, 21 L.Ed. 798; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Williams v. Guthrie, 102 Fla. 1047, 137 So. 682; Revell v. People, 177 Ill. 468, 52 N.E. 1052, 43 L.R.A. 790, 69 Am.St.Rep. 257; People v. Steeplechase Park Co., 82 Misc. 247, 143 N.Y.S. 503; Id., 218 N.Y. 459, 113 N.E. 521, Ann.Cas. 1918B, 1099; San Francisco Sav. Union v. R. G. R. Pet. & Min. Co., 144 Cal. 134, 77 P. 823, 66 L.R.A. 242, 103 Am.St.Rep. 72, 1 Ann.Cas. 182; Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L.R.A. 632; Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267; C.J. vol. 51, pp. 104, 105.

We have also given due consideration to relator’s contention that the City already is invested with authority by virtue of the section of the charter above quoted to erect and maintain structures of the kind which relator is desirous of constructing. In our opinion the City’s charter does not invest the City with any such right, but the right thereby conferred is merely a police power which authorizes the City to regulate and police any structures now or hereafter built in the waters adjacent to the beach of the City, whether within or without the corporate limits. The City is not authorized by the above-quoted section of its charter to construct anything, and it is not to be implied that the Legislature intended to give approval to any invasion of the rights of the State, but that if and when any such structure is built in the waters adjacent to the beach, the City shall have the right to police the same. The State’s title to its lands cannot be bartered away by any such implication, as contended for by relator. Galveston City S. B. Co. v. Heidenheimer, 63 Tex. 559. The State is the source of all title to land in this State, including the navigable waters of the State, and except in instances where a right not expressly granted but is so patently implied as to leave no room for reasonable doubt, as was discussed in the case of Humble Pipe Line Co. v. State et al., Tex.Civ.App., 2 S.W.2d 1018, anyone claiming title to any particular portion of the State’s property must show that the same has been segregated by some formal grant or purchase, and that it no longer forms a part of the State’s public domain. Caples v. Cole, 129 Tex. 370, 376, 102 S.W.2d 173, 104 S.W.2d 3; Producers’ Oil Co. v. State, Tex.Civ.App., 213 S.W. 349; Welder v. State, Tex.Civ.App., 196 S.W. 868, writ refused.

The evident purpose of article 4398, R.C.S.1925, and other relevant statutes -which impose the duty upon the Attorney General to pass upon the validity of bonds proposed to he issued by any municipality or political subdivision of this State, is not only to protect the particular locality and its inhabitants against the imposition of unauthorized or illegal obligations, but also to give assurance to the State Board of Education and other intending purchasers of such bonds that if and when such bonds are so purchased, the purchaser will acquire an. indefeasible title thereto. The duty thus imposed upon the Attorney General is important and is in no sense perfunctory. Another statutory duty is imposed upon the Attorney General by Article 5420, R.C.S. 1925, Vernon’s Ann.Civ.St. art. 5420, by which he is required to institute suit against any person holding or claiming land adversely to the State. Therefore, the Attorney General would default in his obligation to the State if .he were to approve a bond record which showed that bonds were voted for the purpose of paying for the construction of permanent structures upon land which belongs to the State of Texas, or apparently belongs to the State, and for the erection of which structures no right or permit has been obtained.

The Court being of the opinion that the refusal of the Attorney General to approve the bonds in question must be sustained,, it is therefore ordered that relator’s motion to file petition for mandamus be and the same is hereby overruled.

CRITZ, Justice.

As I understánd this record, the structures proposed to be built by the City will extend over 594 feet of area that was once above high tide and privately owned until some twenty years ago. Some twenty years ago this • area became submerged so as to become below high tide. It is not shown how this occurred, whether by evulsion or erosion.

I understand that the structures to be built by the City will, in addition to extending over the above-described 594-foot area, extend an additional 600 feet into the Gulf of Mexico.

I understand that the City contends that the area 594 feet wide, once above high tide but now submerged below high tide, is still privately owned. In other words, the City contends that the fact that such area is now below high tide, and has been for twenty years, has not caused those who owned it when it was above high tide to lose their title.

I further understand that the City proposes to acquire the title to the above-mentioned 594-foot area.

Finally, I understand that the City contends that it will have a right to erect and maintain its structures over the 594-foot area as owner thereof; and that as a riparian right attached to the 594-foot area, it will have the right to erect' and maintain its structures' for the additional 600 feet.

It is my opinion that neither the.State nor the alleged private owners of the 594-foot area are necessary parties to this action to compel the Attorney General to approve these bonds.

It is further my opinion that it cannot be •said, as a matter of .law, that the Attorney General violated a mere ministerial duty in refusing to approve these bonds. I think it is true even though it is my opinion that, as between the' City and the bondholders, these bonds would be perfectly valid if approved by the Attorney General. In other words, I believe that’the Attorney General has a lawful right to approve them.

I am of the opinion that this mandamus should not issue for the reason that I do not believe that this record contains enough agreed facts for this Court to say wRether or not the 594-foot area is still privately owned. Furthermore, I do not believe that even should it be considered that the 594-foot area is still privately owned, a question on which I express ho opinion, yet I do not believe that this record shows that the City is in any position to lawfully assure those who may purchase these bonds that the structures it proposes to build will be permitted to remain for the length of time contemplated by the bond contract over the 600-foot area lying outside and adjacent to the 594-foot area. Simply stated, it is my opinion that the Attorney General has not abused his discretion in refusing to approve these bonds, even though it is my further opinion that under this record he could have exercised his discretion either way without acting unlawfully.


author: CHRISTIAN, Judge.

text:
    WORDEN v. STATE.
    No. 21211.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    J. Elwood Winters, of Fort Worth, for appellant.
    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 three years.

Four indictments appear in .the record charging appellant with separate transactions involving theft of cattle. Appellant was convicted in each of the cases, and four judgments of conviction appear in the transcript. In his motion for new trial appellant attempted to consolidate the four cases. In overruling the motion the court made four docket entries indicating that the motion was overruled in each case and notice of appeal given. Thereafter appellant was sentenced in each case, four sentences appearing in the transcript. If appellant appealed in each of the cases mentioned the clerk should have prepared a transcript in each case. Notice of appeal entered in the cases appears to be mere docket entries, there being nothing to indicate that such notice of appeal was carried into the minutes of the court, as required by Article 827, Code Cr.Proc. 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.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    CONN v. STATE.
    No. 21166.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied Oct. 30, 1940.

      J. R. Bogard, of San Augustine, and J. R. Anderson, of Center, for appellant.
    Joe J. Fisher, Dist. Atty., of San Augustine, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of thirty-five years.

The record discloses that on the night of July IS, 1939, appellant killed Rufus Johnson by shooting him with a pistol.

By Bill of Exception No. 1 appellant complains of the action of the trial court in admitting in evidence a purported voluntary confession apparently made to Leo Bishop, a State Ranger, and reduced to writing by the County Attorney of San Augustine County. The formal part thereof reads as follows: “I, L. C. Conn, make the following statement to Leo Bishop, the person who I am in custody of at this time, after I have been duly warned that I do not have to make any statement at all and that any statement that I may make may be used in evidence against me concerning the offenses which this statement is relative to, I make the following voluntary statement to the aforesaid person:”

Appellant objected to its introduction in •evidence on the ground that it failed to show that any warning had been given him by the person to whom it was made. Thereupon the State, for the purpose of supplementing the formal part of the alleged confession, elicited from the witness, Leo Bishop, the fact that the purported •confession was made to him after he had warned him that he did not have to make any statement, but that any statement which he might make could be used in evidence against him on the trial for the murder of Rufus Johnson. After giving him the warning he (appellant) made the statement. On cross-examination he testified that the warning which he gave to the appellant was that he did not have to make .any statement; that if he did make a written statement it could be used for or .against him. The witness testified that he was not only confident but sure that he told .appellant that any statement which he made could be used for or against him on the trial of this particular case. Thereupon, appellant again objected to the introduction of the confession on the ground that a sufficient proper warning had not been given. Appellant’s objections were overruled, the confession was admitted in evidence and appellant duly excepted.

The questions herein presented are not new. They have been before this court in a number of cases which sustain the appellant’s contention. See Young v. State, 54 Tex.Cr.R. 417, 113 S.W. 276. It was again squarely before this, court in the case of Jenkins v. State, 60 Tex.Cr.R. 236, 131 S.W. 542, in which case Judge Ramsey, then a member of this court, dissented from the rule announced by the majority members of the court. However, this court has since then adhered to the rule of the majority. See Henzen v. State, 62 Tex.Cr.R. 336, 137 S.W. 1141; Boxley v. State, 100 Tex.Cr.R. 334, 273 S.W. 589; Justice v. State, 112 Tex.Cr.R. 586, 18 S.W.2d 657; Miller v. State, 113 Tex.Cr.R. 417, 21 S.W.2d 304; Grice v. State, 115 Tex.Cr.R. 64, 29 S.W.2d 793.

If the officer who had appellant under arrest warned him that any statement which he (appellant) might make could be used for or against him, it did not meet the requirements of Art. 727, C.C.P., relating to confessions, and therefore the same was inadmissible in evidence. See Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733. Many other cases on the subject could be cited. Inasmuch as the question has been fully discussed in the cases cited, a further discussion thereof is deemed unnecessary.

For the error pointed out, the judgmenl 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.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

The State moves for a rehearing, really seeking to have this court adopt the dissenting opinion of Judge Ramsey in Jenkins v. State, 60 Tex.Cr.R. 236, 131 S.W. 542, instead of following the majority opinion as we did. The Jenkins case was decided in 1910. Our present statute on confessions (now Art. 727, formerly 790) was enacted in 1907. In 1908 this court was called on to construe said act in Robertson v. State, 54 Tex.Cr.R. 21, 111 S.W. 741, 742. Judge Ramsey wrote as follows in the case last mentioned: “ * * Whatever may be thought of the wisdom of the act of the last Legislature in respect to confessions, it is certain that the Legislature intended that, before any confession of one in jail or in confinement should be 'admitted, such instrument should contain, within itself evidence that the person making same had been warned 'by the person to whom same was made that he did not have to make any statement at all, and that any statement so made could be used in evidence against him on his trial for the offense concerning which the confession is therein made. The fact that such statement is contained in the certificate of the notary public does not meet the requirements in the statute. It can no more supply the recital of such fact in the statement than could an acknowledgment supply or take the place of a substantial matter required by law to be contained or included in a deed or other instrument of writing.” .

The same act. was again construed in 1908 in Young v. State, 54 Tex.Cr.R. 417, 113 S.W. 276, 277. Notwithstanding certain suggestions in the opinions mentioned the Legislature has not deemed it wise to make any change in the statute, and it has been twice re-enacted in the revisions of 1911 and 1925. Under the circumstances stated we adhere to the rule announced in the cases herein mentioned and which rule has been followed in other cases listed in our original opinion.

The State also urges that the ad- . mission of appellant’s confession even though erroneous should not be held reversible under the rule that though evidence be erroneously admitted if the same evidence comes into the case without objection the error will not bring about a reversal. It is the State’s contention that appellant proved by the wife of deceased the same facts which are found in appellant’s confession. The rule invoked by the State has been recognized in many cases, but we are not aware that application thereof has been made where confessions of an accused have been improperly admitted in evidence unless accused himself has become a witness and testified substantially to the same things found in the confession. See Govance v. State, 109 Tex.Cr.R. 47, 2 S.W.2d 853; Henderson v. State, 118 Tex.Cr.R. 436, 39 S.W.2d 900; Parker v. State, 91 Tex.Cr.R. 68, 238 S.W. 943; Whorton v. State, 69 Tex.Cr.R. 1, 152 S.W. 1082. In view of the statutory limitation and restrictions regarding the admission of confessions in evidence the rule last above stated should not be further extended. The effect of the same evidence from another source upon a jury improperly hearing the recitals - in a confession is too speculative to be indulged in. One is an admission against interest, the other statements of a witness which may be given weight according to the jury’s appraisement of the witness.

The State’s motion for rehearing ■ is overruled.


author: KRUEGER, Judge.

text:
    W. M. BOLIN, Appellant, v. STATE of Texas, Appellee.
    No. 21307.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    S. I. Pittman, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder with malice. The punishment assessed is confinement in the state penitentiary for ninety-nine years.

Since perfecting his appeal, appellant has filed a written motion, duly verified by his affidavit, requesting the privilege of'withdrawing his appeal. The request is granted and the appeal is 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.


text:
    Eugenio CASTILLO, Appellant, v. STATE of Texas, Appellee.
    No, 21405.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Julian LaCrosse, of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the unlawful possession of marihuana, a narcotic drug. The punishment assessed is confinement in the state penitentiary for a term of two years.

Accompanying the record is the written motion of the appellant, duly verified, requesting the privilege of withdrawing his appeal. The request is granted and the appeal is dismissed.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    Danny LEACH, Appellant, v. STATE of TEXAS, Appellee.
    No. 21289.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Shead & Smith, of Longview, Garland G. Wier, of Gladewater, and W. A. Mc-Intosch, of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of' Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of robbery by assault, and his punishment assessed at five years‘confinement in the penitentiary.

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


text:
    E. W. LOWRIMORE, Appellant, v. STATE of Texas, Appellee.
    No. 21169.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Thomas & Thomas, of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is embezzlement. The punishment assessed is confinement in the state penitentiary for a period of two years.

Since perfecting his appeal, appellant has filed a written motion, duly verified, requesting the privilege of withdrawing his appeal. The request is granted and the appeal is dismissed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    Earl RIDGEWAY, Appellant, v. STATE of Texas, Appellee.
    No. 21267.
    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.

Conviction is for rape, punishment assessed being 15 years in the penitentiary.

Since this court acquired jurisdiction appellant has filed in the court his affidavit advising that he does not desire to further prosecute his appeal, and requests that same be dismissed, and it is so ordered.


author: BEAUCHAMP, Judge.

text:
    Marvin SUBLETT, Appellant, v. STATE of Texas, Appellee.
    No. 21322.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    R. T. Harris and M. J. Howze, both of Monahans, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant has filed his affidavit setting forth his desire to withdraw his appeal in this cause, which appears to be regular. The motion is granted and, upon such showing, the appeal is dismissed.


text:
    Harris WILLIAMS, Appellant, v. STATE of Texas, Appellee.
    No. 21347.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    M. P. McCoy, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus- , tin, for the State.
   BEAUCHAMP, Judge.

Appellant’s motion to dismiss his appeal, properly sworn to, was filed in this court on the 18th day of September, 1940. The motion, being in due form, is granted and the appeal is withdrawn.


text:
    James Woodrow WOODRUFF, Appellant, v. STATE of Texas, Appellee.
    No. 21311.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Harvey W. Lindsay, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed being six years in the penitentiary.

Since the jurisdiction of this court attached appellant has filed his affidavit advising that he does not desire to further prosecute his appeal, and at his request the appeal is dismissed.


author: PER CURIAM.

text:
    Mrs. Mattie FARR, Appellant, v. M. A. STANOSCHEK, Appellee.
    No. 12904.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 5, 1940.
    Bird & Bird, Joe C. Luther, and D. D.. Bird, all of Dallas, for appellant.
    Alexander D. McNabb, of Dallas, for appellee.
   PER CURIAM.

Judgment of the court below reformed,, in keeping with the jury verdict, and as. reformed, affirmed. The rule applied in Kelley v. Ward, 94 Tex. 289, 60 S.W. 311, is in point.