text:
    L. R. COX, Plaintiff-Respondent, v. Viverette LEE, Defendant-Appellant.
    No. 9881.
    Missouri Court of Appeals, Springfield District.
    Nov. 17, 1975.
    Weber Gilmore, Gilmore & Gilmore, Sike-ston, for plaintiff-respondent.
    L. D. Joslyn, Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Defendant bet plaintiff and Delmar Alcorn $3,000 he was not the penman of a certain notebook entry. Plaintiff and Al-corn each put up $1,500 in checks. Ten months after defendant cashed plaintiff’s checks, plaintiff sued to recover his money and the jury obliged him with a $1,500 verdict. Following denial of defendant’s after-trial motions, he appealed from the order of the court overruling those motions. This was error. The appeal should have been taken from the judgment entered on the verdict (Rule 81.04; §§ 512.020 and 512.050), and not from the order overruling the post-trial motions which is not an ap-pealable order. However, as we attribute to defendant a good faith try at appealing from the judgment, his notice of appeal will be so treated. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607[1, 2] (Mo.App.1970).

In substance, plaintiff’s petition alleged he was entitled to the return of his bet because the wager had been called off before it was determined, and his verdict directing instruction charged the jury, inter alia, to find for plaintiff if “before the event [on which the wager was to be decided], the plaintiff and defendant called off the bet, and defendant kept plaintiff’s money.” Defendant filed a motion to dismiss the petition because, among other things, the action was barred by the 3-month statute of limitations set forth in § 434.090. The trial court stated the motion would be ruled at the close of the evidence, but this was not done. Nevertheless, the fact the court submitted the case to the jury and overruled defendant’s after-trial motions would indicate it did not favor the motion. to dismiss. Defendant’s instruction given to the jury was that plaintiff could not recover unless it believed “plaintiff and defendant communicated to each other and agreed to call off the bet before checks were paid to defendant.” We have not been asked to determine the correctness vel non of the instructions.

Statutes pertinent hereto are: Sec. 434.-030 — “Any person who shall lose any money or property at any game, gambling device or by any bet or wager whatever, may recover the same by a civil action.” Sec. 434.090 — “Any action for money or property brought under this chapter shall be commenced within three months from the time the right of action accrued, and not afterward.”

The petition stated a cause of action under the common law and the instructions, supra, attest the cause was submitted to the jury on the theory pleaded. Without reference to statutes concerning gaming, ante, one may sue at common law and recover his stake in a bet, provided he repudiates the bet before the happening of the event on which the wager was to be decided and gives timely and proper notice thereof to and makes demand on the other gamester or stakeholder. However, once the bet has been determined, the law will not aid a gamester in recovering his money without resorting to the procedures provided by statute. Connor v. Black, 132 Mo. 150, 154, 33 S.W. 783, 784 (1896); Adams Express Co. v. Reno, 48 Mo. 264, 268 (1871); Humphreys v. Magee, 13 Mo. 435, 436 (1850); Dooley v. Jackson, 104 Mo.App. 21, 33-34[2], 78 S.W. 330, 334[2] (1904); Cutshall v. McGowan, 98 Mo.App. 702, 705, 73 S.W. 933, 934-935 (1903); Ryan v. Judy, 7 Mo.App. 74, 75 (1879); 38 C.J.S. Gaming §§ 31 and 36, at pp. 100 and 102; 38 Am.Jur.2d, Gambling, § 212; pp. 259-260. The same general rules apply to executory and performed contracts which are found to be illegal and immoral. Idel v. Hamilton-Brown Shoe Co., 343 Mo. 373, 382, 121 S.W.2d 817, 821[3, 4] (1938); Lebcowitz v. Simms, 300 S.W .2d 827, 830 (Mo.App.1957); Boyer v. Garner, 15 S.W.2d 893, 894 (Mo.App.1929); Burgess v. Manchester Inv. Co., 186 S.W. 1144, 1145[1, 2] (Mo.App.1916).

If this had been an action brought under § 434.030 to recover money lost on a bet after the happening of the event on which the wager was to be decided and the bet had been determined more than three months before the action was commenced, it would have been barred by the statute of limitations specified in § 434.090. But that is not the situation presented. In this case, the action was not brought under the statute. Rather, it was predicated on the common law right to sue for and recover money placed on a bet that allegedly had been repudiated before the wager was determined. The trial court left it to the jury to say whether plaintiff withdrew from the wager before the bet was determined, and the verdict must be considered as a finding of fact that the event on which the wager was to be decided had not occurred prior to plaintiff’s repudiation thereof. Humphreys v. Magee, supra.

What has been said disposes of defendant’s first point that the court erred in not sustaining defendant’s motion to dismiss because the action was barred by the statute of limitations. Defendant’s second and final point that the “verdict was contrary to all the evidence since under the pleadings, testimony and instructions, there never was any communication and agreement between [defendant] and [plaintiff] that the bet had been offed,” saves nothing for appellate review. While we do not understand that all parties to a wager must mutually agree to call off the bet before one of them can repudiate the bet ere it is determined and recoup his money, defendant’s second point stands naked of any citation of authority as required by Rule 84.-04(d) and, therefore, is considered abandoned. Adams v. White, 488 S.W.2d 289, 294[12] (Mo.App.1972).

The judgment is affirmed.

All conpcur.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to RSMo 1969, V.A. M.S.


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    In the Matter of R. I. P. I. M. P., Petitioner, v. R. R. P., Respondent.
    No. 37532.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 17, 1975.

      Doris Gregory Black, St. Louis, for petitioner.
    Hanks & Taylor, Claude Hanks, Clayton, for respondent.
   WEIER, Presiding Judge.

In this habeas corpus proceeding petitioner mother seeks to obtain physical custody of the child, R. I. P., from the respondent father. Her right to custody is based upon a divorce decree entered December 20, 1974 by the Circuit Court of St. Louis County. Thereafter, upon a motion to modify filed May 6, 1975 in a divorce proceeding, the court entered an order to transfer custody of the child from the petitioner to respondent father on June 9, 1975. Petitioner contends that this order of modification issued June 9, 1975 was premature in that it preceded the time within which she was compelled to file an answer or other pleading according to the summons, and that the order was entered ex parte, without notice or hearing.

After the issuance of our writ of habeas corpus to the respondent, he produced the child and filed his return contending that he had legal custody under the court order of June 9, 1975, and then attacked the fitness of the petitioner in this proceeding to have the care and custody of their minor child. After a consideration of the issues raised by the pleadings and disclosed by the filings in this court, we have concluded that the writ was improvidently granted.

Absent unusual circumstances a writ of habeas corpus may not as a general rule be employed to interfere with the jurisdiction of the divorce court to award custody of minor children. Where unusual circumstances exist and the issue of fitness of the petitioner is raised, we will assume jurisdiction in a habeas corpus matter to adjudicate custody of minor children, but the issue of fitness alone is not sufficient for an appellate court to take jurisdiction away from a trial court and then make an award of custody. See In re L. G., 502 S.W.2d 38 (Mo.App.1973), and cases cited therein.

Upon our relinquishment of jurisdiction in this matter, we call the attention of the Circuit Court of the County of St. Louis to the proceedings that have been had on the motion for modification of the divorce decree as to transfer of custody in Cause No. 361537 and request that the court make a determination as to whether the order entered on June 9, 1975 was premature. If so, then the court should consider that order a temporary order of custody and should proceed to set the cause down for a hearing and determination based upon the evidence produced at the hearing. In the event of a disagreement with the disposition of the child made by the court at that time, the aggrieved party has his or her right of appeal.

The writ of habeas corpus heretofore issued is quashed.

DOWD and RENDLEN, JJ., concur.


author: HARBISON, Justice.

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Appellant, v. SCHATTEN CYPRESS COMPANY, Appellee.
    Supreme Court of Tennessee.
    Oct. 14, 1975.
    Rehearing Denied Dec. 8, 1975.
    James H. Harris, III, Metropolitan Atty., Nashville, for appellant.
    Elkin Garfinkle, Dick L. Lansden, Nashville, for appellee.
   OPINION

HARBISON, Justice.

This action was instituted by the taxpayer, Schatten Cypress Company, challenging the validity of the 1972 assessment of land and buildings on which it holds a long-term lease. Appellee contended that the Tax Assessor for the Metropolitan Government of Nashville and Davidson County had failed to assess separately the leasehold interest of appellee from the reversionary interest, which is owned by the Metropolitan Government itself, the appellant here.

The complaint alleges that separate interests in real property are required to be separately assessed pursuant to T.C.A. § 67-606(5) and that the Tax Assessor had failed to comply with this statute. It is further alleged that the appellee is paying rent “equal to the full value of the use of the property” and that the leasehold “has no separate or taxable value.”

The complaint states that the improvements placed on the property under the terms of the lease were to be built and maintained by appellee but that ultimately they became the property of the lessor, so that the appellee only had the use of the property during the term of the lease.

The primary lease itself, dated December 22, I960, is exhibited to the complaint. This instrument was executed by the City of Nashville, predecessor in interest to the Metropolitan Government, as lessor and by appellee as lessee.

The lease covers property then lying outside the corporate limits of the City of Nashville. The property was situated in Davidson County, a separate taxing district, with separate taxing authority at that time. The lease covers some 5.97 acres of land fronting on the Murfreesboro Road near the present Metropolitan Airport. The land was owned by the City of Nashville under its airport authority, and the City, apparently not foreseeing the immediate use of the property for airport purposes, entered into a long term lease with appellee, giving it a primary term of twenty-five years at a reserved rent of $12,000 per annum, with two renewal options of ten years each at a reserved rental of $18,000 per annum.

Under the terms of the lease the appellee was to construct on the premises a one-story building containing a minimum of 60,000 square feet of floor space, and appellee was required to pave all of the adjoining area in accordance with plans and specifications which were to be approved by officials of the lessor. It was agreed that the building, when constructed, should be maintained by the lessee, but upon termination of the lease it would be the property of the lessor. The lessee was given the right to conduct any lawful business on the premises, and was expressly given the right to sublease all or any portion of the building.

On March 28, 1963 an amendment to the lease was executed by the parties, and this amendment is also exhibited to the complaint. By this amendment the appellee, as lessee, was authorized to construct an additional building consisting of approximately 20,000 square feet of floor space, immediately adjacent to the west side of the original building. No additional rental was required of the lessee, and all of the other terms and provisions of the original lease were ratified and confirmed.

The Metropolitan Government filed a motion to dismiss the present action, which was overruled. It then filed an answer to the complaint, denying that there had been any improper assessment of the leasehold interest of appellee. Both parties then filed motions for summary judgment.

Attached to the motion for summary judgment filed on behalf of appellant was an affidavit of the Chairman of the Metropolitan Board of Equalization. His affidavit stated that appellee had not challenged its 1972 assessment before the Metropolitan Board of Equalization.

Also attached to the motion for summary judgment filed by the Metropolitan Government was an affidavit of its Tax Assessor, Clifford R. Allen. Both courts below noted the existence of this affidavit, but neither mentioned its contents. In this affidavit the Assessor stated that he had, in the performance of his duties, “assessed the leasehold interest of the plaintiff, Schatten Cypress Company, in the property located on Murfreesboro Pike and identified as Field Book Number 2DA 51440, Map and Parcel Number 120-0, for the year 1972 as of 10 January 1972. Attached hereto as Exhibit A to my affidavit is a true copy of the 1972 tax statement indicating my assessment of Schatten Cypress’ interest in the property in question.”

The affidavit sets out the amount of the assessment and states that this assessment “represents only the value of plaintiff’s leasehold interest, separate and apart from the value of any other interests, in said property.”

The affidavit states that no assessment was made of the lessor’s interest in the property because the lessor, being the Metropolitan Government, was a tax-exempt municipal corporation.

The affidavit repeats that the total assessment

“represents the true and accurate evaluation of the plaintiff’s entire leasehold interest, separate and apart from any other interests, in said property as of 10 January 1972. The assessment was based oil sound, professional appraisal practices by appraisers employed in the Office of the Tax Assessor and was made pursuant to and strictly in accordance with the applicable statutes of Tennessee and the provisions of the Charter of The Metropolitan Government of Nashville and Davidson, [sic] Tennessee.”

Attached to this affidavit was a tax statement issued to appellee for the year 1972. Under the heading of “Property Description” thereon is the legend “Assessment of Leasehold Interest.”

There is no countervailing evidence in the record. The affidavit of the Tax Assessor stands uncontradicted and unimpeached.

By an amendment to its complaint, filed after the foregoing materials were entered in the record by appellant, appellee averred that on July 10, 1963 it had entered into a sublease of a portion of its property to Malone & Hyde, Inc., and it was averred that the leasehold interest of appellee in the property had not been assessed separately from the subleasehold interest of Maone & Hyde. Appellee quoted from an opinion of the Court of Appeals in former tax proceedings between these parties, wherein the Court of Appeals had noted that there was no separate valuation of the interest of this sublessee. It was alleged in the amended answer that the parties to the present action were the same as the parties to the previous litigation and that the issues in the present case were the same as those involved in the former proceedings. Neither the pleadings, decrees nor opinions filed in the former proceedings were filed in the present case.

We have examined the opinion of the Court of Appeals in the previous litigation referred to. The Court of Appeals in that case held void a second amendment to the original lease, executed in October, 1963, and did note the fact that there had been a single assessment of the leasehold interest of appellee, without any indication as to how that assessment was to be prorated between each of two sublessees. From our examination of the former proceedings, however, they are in no sense res adjudicata to the issues presented in the present case. The issues are entirely distinct, and a different tax period was involved.

Attached to the amended answer of ap-pellee was a sublease made by appellee to Malone & Hyde, Inc. on July 10, 1963. At other points in the record appellee refers to a sublease of the original 60,000 square foot building which it made to Zayre, Inc., but the Zayre sublease was never exhibited in the record, and we have no way of knowing what its terms and provisions may have been.

In the Malone & Hyde sublease, appellee agreed to build a building of some 22,000 square feet of ground area, and appellee was to be paid a reserved annual rental from this sublease of $25,300. In this instrument the sublessee further agreed to pay to Schatten Cypress “any increase in the tax on the leasehold premises herein demised, over the first year such taxes are assessed and paid whether such increase be by reason of assessment or an increase in rates.”

There was also filed in the record by stipulation a letter from the Principal Appraiser of Metropolitan Government, showing the assessment made of appellee’s leasehold interest, as determined in proceedings before the State Board of Equalization, for the year 1970. The figures for that year were the same as for the year in issue in the present case. In his letter the Assessor said:

“As you know, the State Board set the assessment at $267,500. A leasehold assessment on the land of $59,700 and a total of $207,800 leasehold assessment on the building make up the total of $267,-500. In estimating our valuation for the total leasehold value of the property of Schatten-Cypress’ interest in the property, we estimated that Cooper & Martin constituted 39 per cent of the total leasehold value and that the Zayre property constituted 61 per cent of the leasehold value.”

It was stipulated between the parties that the Assessor would testify in the present case “in accord with said letter of November 6, 1970” if he were called as a witness.

As previously stated, appellee, as well as appellant, moved for summary judgment, and in support of appellee’s motion there was filed an affidavit of one of the attorneys of appellee, who stated that he had examined the records in the Tax Assessor’s Office. His affidavit is as follows:

“The assessment value on the leasehold interest of Schatten Cypress Company on the property involved in this cause appears in Field Book No. 2D A, Page 89. The item with regard to Schatten Cypress Company leasehold property is listed on said book and page as 2DA 51440 120 and on the columns setting out assessments, the land is listed at 59,700. The buildings and improvements at 207,-800 and the total 267,500. The last year shown on said book is ’70, being the last valuation appearing in said book and under the system being continued as the valuation until changed by the Assessor.” [emphasis added]

In this case the chancellor held the 1972 assessment void, upon the ground that there had been no separate assessment of the leasehold interest as distinguished from the fee or reversion. He discussed in his opinion the issue of whether the reversion-ary interest, owned by Metropolitan Government, was or was not tax exempt, but finally concluded that this was an immaterial issue and that in all events the record failed to disclose a separate assessment of the leasehold interest as required by . law. Although recognizing that any complaint which the appellee might have as to valuation would necessarily have to be made to the Metropolitan Board of Equalization, the chancellor concluded that the assessment for the year 1972 was void as a matter of law, and he sustained the motion of appellee for summary judgment.

In an opinion filed on March 27, 1975 the Court of Appeals affirmed. The Court of Appeals accepted the insistence of appellee that the values shown on the Assessor’s records were values either of the fee simple interest of the Metropolitan Government, or that they represented the total values of the land and buildings, and did not contain a separation of the values of the leasehold from the fee.

Our examination of this record leads us to a different conclusion from that reached by both of the courts below. There is simply no evidence whatever in this record that the Assessor did anything other than that which he stated in his affidavit. Throughout the entire record, including the Field Book, the assessment refers to the leasehold interest of the appellee in the land and the buildings, and at no point is there anything to indicate, insofar as our examination of the record reveals, that the Assessor had included in the assessment to appellee any fee or reversionary valuation.

As stated previously, we do not have before us the Zayre sublease. We accordingly have no way of knowing what annual rental it produces. We do have, however, the Malone & Hyde sublease of 22,000 square feet of building area, which throws off to appellee an annual rental of $25,300.00. If we accept the apportionment suggested by the Principal Assessor, that this sublease represents 39% of the total leasehold value, and if we might project rent accordingly, it would seem that the Zayre sublease would yield an annual rental of at least $39,000.00. If we could project rentals on the basis of area alone, the Malone & Hyde sublease throws off more than one dollar per square foot. On this basis the Zayre sublease would yield in excess of $60,000.00 per an-num. It must be borne in mind that the lessee has the exclusive right to use some six acres of exceedingly valuable commercial property fronting on the Murfreesboro Road in Davidson County, and all improvements thereon, for a period of twenty-five years, with options to renew for an additional twenty years, for an annual rental of only $12,000.00 to $18,000.00. If the subleases throw off anything like the amounts above suggested, in the neighborhood of $60,000.00 to $85,000.00 or more per annum, it is obvious that the leasehold interest in the present case has an enormous value.

While the foregoing rental projections are merely suppositions upon our part, we do know from the record that the Malone & Hyde sublease alone, covering about one-fourth of the total building area, yields over twice the base rental paid by appellee for the whole parcel during the primary term of its lease with appellant. The valuation of a leasehold for tax purposes and for condemnation purposes is normally accomplished by determining whether there is an excess in fair rental value over the rent reserved in the lease.

The actual reserved rent paid by the ap-pellee to the Metropolitan Government is only $1000.00 per month for approximately six acres, including the improvements, during the primary term and $1500.00 per month during any renewal period. The reserved rents which it is receiving from its sublessees exceed by many times the rent which appellee itself is paying. There is no evidence in the record as to the cost or the nature of the buildings which appellee was required to build. Of course, at the end of either 25, 35 or 45 years from the date of the lease, the land and the buildings will become available for use by the lessor. Whether there will be any residual value in the buildings at the end of the lease is a matter which we cannot determine upon this record. In the interim, however, neither the lessor nor any purchaser of the property can have any use thereof or anything of value from the property except the annual reserved rent.

We therefore, are unable to agree with the holdings of either court below that the assessments in question fail to reflect a valuation of the leasehold. As was entirely appropriate, the Assessor separated his valuation of the leasehold in the land from that of the buildings. There are about two acres of the parcel under roof, and nearly four acres not under roof. If the appellee were dissatisfied with the valuation placed on the leasehold, either land or buildings, by the Assessor, it had a clear administrative remedy which it has failed to pursue.

The argument by appellee that the Assessor failed to make a separate assessment against the reversionary interest is, in our opinion, without merit. The property is owned by the Metropolitan Government, which is the taxing authority. At the time the lease in question was entered into, there were two taxing authorities in Davidson County, one of these being the City of Nashville and the other the County of Davidson. It was conceivable that Davidson County might place this property on its tax rolls, at the time of the original lease, because some question might have been made as to whether the City of Nashville was using the property for a “public” or “municipal” purpose within the meaning of T.C.A. § 67-502(1), in the making of such a lease as is here involved.

There are a number of cases in this state holding that one public body may tax the property of another public agency if that property is not being used for public purposes. So long as Davidson County was a separate taxing entity from the City of Nashville, there was a possibility that the interests of both the lessee and of the lessor City of Nashville might be subject to county taxes.

In 1963, however, the Metropolitan Government of Nashville and Davidson County, Tennessee came into being, as successor to both the former city and county governments. It is a consolidated government, and, although for some purposes there are established separate taxing districts, such as the Urban Services District and the General Services District, it is a single government and a single taxing authority.

No case has been cited under which a public body is required to assess and pay taxes to itself. None of the cases referred to in the briefs suggest such a requirement. Whether the lease of the present property by the Metropolitan Government to appel-lee is or is not for a “public purpose” within the meaning of the tax exemption statutes, we think that it would be an entirely unnecessary exercise for the Metropolitan Government to make a separate assessment of its own interest in its own property and pay taxes to itself.

Appellee alleged in its original complaint that it was paying no more than the fair rental value of the property under its lease. We think that it has wholly failed to demonstrate this proposition, but even if it were correct, any such complaint should have been made initially to the Board of Equalization, and not to the courts.

Appellee further contends that there is no separate valuation or assessment of the subleases which it has made to Zayre and to Malone & Hyde. We are simply unable to ascertain from this record, however, that either of these sublessees is paying to appellee anything less than the full and fair rental value of the property under their respective subleases. Appellee has offered no affidavits or any other information to suggest that either of the subleases has a separate assessable value, over and above the amount of the rent reserved by appel-lee. The Zayre sublease is not even filed. The Tax Assessor has indicated how he apportioned these respective subleases for the purpose of enabling appellee to pass on any increase in taxes to its sublessees, and this meets the objection voiced by the Court of Appeals in the prior tax litigation between the parties. Certainly the burden of proof rested upon appellee to show any separate taxable value to the subleases, if it expected to void its own assessment upon the basis of the failure of the Assessor to assess the sublessees.

We are of the opinion that the motion for summary judgment filed in this case on behalf of the Metropolitan Government was well taken and should have been sustained. The judgments of both courts below are reversed, and the suit is dismissed at the cost of appellee.

FONES, C. J., and COOPER, BROCK and HENRY, JJ., concur.

       We assume from the record that Cooper & Martin was a successor in interest to Malone & Hyde.

      . State v. Grosvenor, 149 Tenn. 158, 258 S.W. 140 (1923); Moulton v. George, 208 Tenn. 586, 348 S.W.2d 129 (1961); Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074 (1927); State Dept. of Highways and Public Works v. Texaco, Inc., 49 Tenn.App. 278, 354 S.W.2d 792 (1961).

      . Shelby County v. McCanless, 163 S.W.2d 63 (Tenn.1942); Knoxville v. Park City, 130 Tenn. 626, 172 S.W. 286 (1914); Johnson City v. Booth, 37 Tenn.App. 231, 261 S.W.2d 820 (1953). See also Chattanooga v. Marion County, 204 Tenn. 56, 315 S.W.2d 407 (1958); State v. Hamilton County, 176 Tenn. 519, 144 S.W.2d 749 (1940).


author: PER CURIAM.

text:
    Mrs. Charles Edward WILLIAMS et al., Appellants, v. The TRAVELERS INSURANCE CO. et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 24, 1975.

      Palmer, Palmer & Jordan, Dyersburg, Howard M. Taradash, Nashville, for appellants.
    Russell L. Moore, Jr., Ewell & Farmer, Dyersburg, for appellees.
   PER CURIAM.

OPINION

This case involves controverted claims to workmen’s compensation benefits to be paid as the result of the death of Charles Edward Williams on October 25, 1971. Mr. Williams was killed in an accident which arose out of and in the course of his employment by the Jones Construction Company. The original complaint in this cause was filed by Travelers Insurance Company to have the Dyer County Law and Equity Court declare the rights of the several claimants, and possible claimants, to benefits to be paid under the Workmen’s Compensation Act. Material to this appeal, the trial judge found:

(1) the defendant Reba Nell Carson Williams was the wife of the deceased employee, was living with him at the time of his death, and was dependent upon him for support;

(2) the defendant Thomas Allen was the stepson of the deceased employee, was living with him at the time of his death, and was dependent upon him for support; and

(3)that the defendant, Reba Fay Williams, was the illegitimate daughter of the deceased employee.

Based on these findings of fact, the trial judge awarded benefits to Reba Nell Carson Williams at the rate of forty-six dollars ($46.00) per week; to Thomas Allen Bing-ham at the rate of four dollars and fifty cents ($4.50) per week; and to Reba Fay Williams at the rate of four dollars and fifty cents ($4.50) per week. The order of the trial judge also provided that Travelers Insurance Company could pay the benefits in a lump sum commuted according to statute, with Mrs. Williams being entitled to receive $11,532.94, and Thomas Allen Bing-ham and Reba Fay Williams, each to receive $1,532.91.

Appeals were perfected on behalf of Reba Fay Williams and by Reba Nell Carson Williams. Essentially, Reba Fay Williams takes issue with the trial judge’s finding that Mrs. Williams and Thomas Allen Bing-ham were entitled to receive workmen’s compensation benefits, the amount of benefits awarded them, and the holding of the trial judge that the benefits could be paid in a lump sum. In turn, Mrs. Williams takes issue with the finding of the trial judge that Reba Fay Williams is the illegitimate daughter of Charles Edward Williams.

In reviewing issues of fact in a workmen’s compensation case, this court reviews the record to determine only if the trial judge’s findings are supported by any material evidence. Gluck Brothers, Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825 (1965). As pointed out in General Shale Products Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957),

“The legislature in enacting the compensation act expressly entrusted the trial court with the power to find the facts and when such facts are supported by any material evidence, even if this Court thinks the evidence points otherwise, the trial court must be affirmed.”

On reviewing the record within the scope of review allowed this court, we find material evidence to sustain the trial judge’s awards of benefits under the Workmen’s Compensation Act.

For the purposes of the workmen’s compensation law, a wife living with her husband at the time of his death from an industrial accident within the course and scope of his employment is conclusively presumed to be wholly dependent on her husband for support and is entitled to benefits under the workmen’s compensation law. T.C.A. 50-1013(a)(l) and (c)(1). The evidence is that Reba Nell Carson Williams married Charles Edward Williams on August 21, 1971, and was living with him at the time of his death.

There is also a conclusive presumption that a minor child of the deceased employee under sixteen years of age is wholly dependent on the deceased employee for support with the sequential result the minor child is entitled to benefits. T.C.A. 50-1013(a)(l) and (c)(1). The presumption applies to illegitimate children on proof of the employee’s paternity. Terry v. Burlington Industries, 220 Tenn. 668, 423 S.W.2d 476 (1968).

The evidence shows that the child, Reba Fay Williams was born April 3, 1963, in Detroit, Michigan, and was eight years of age at the time Charles Edward Williams was killed. Her natural mother, Clara Frances Bates, was married to Mr. Williams in 1959 and divorced from him on December 9,1960. Miss Bates married Albert Sterlon Tyce on November 25, 1963. Mrs. Tyce testified that after her divorce from Mr. Williams and before taking up with Mr. Tyce, her sexual activity was limited to one occasion with Mr. Williams in 1962 and that it was at that time Reba Fay was conceived. Another witness testified he saw Mr. Williams asleep in Mrs. Tyce’s, then Miss Bates’, bedroom at the time testified to by Mrs. Tyce. Out of an abundance of caution, the trial judge ordered Mr. and Mrs. Tyce and Reba Fay to undertake blood grouping tests. The results of the tests were not filed, but there is a statement by the trial judge that the tests showed Mr. Tyce could not possibly be the father of Reba Fay. In our opinion the above, as recounted, is material evidence that Charles Edward Williams was the natural father of Reba Fay Williams.

Thomas Allen Bingham, the third claimant awarded benefits by the trial judge, is the stepson of the deceased employee. A stepchild, who is a member of the employee’s family and is dependent upon the employee for support, is a dependent child within the ambit of protection of the Workmen’s Compensation Act and is entitled to share benefits equally with an actual child of the deceased employee. See T.C.A. 5Q-1013(a)(8); Atkins v. Employers Mutual Insurance Co., 208 Tenn. 539, 347 S.W.2d 49 (1961); Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770 (1927). Relationship is not the test, but support and actual dependency of the child. Atkins v. Employers Mutual Insurance Co., supra; Wilmoth, et al. v. Phoenix Utility Co., et al., 168 Tenn. 95, 75 S.W.2d 48 (1934). On the issue of dependency, Mrs. Yililliams testified that her son lived with her and Mr. Williams and that both she and her son were supported by Mr. Williams. According to Mrs. Williams, her husband gave her his weekly paycheck, except for an amount ranging from $6.00 to $15.00 kept by him to get “things that he would need on the job,” and that the money was used by her to pay for necessary support of the family. There is evidence in the record that the natural father of Thomas Bingham is under a court order to pay Mrs. Williams $10.00 per week to be used for the support of Thomas, and that payments were made under the order up to the time Mrs. Williams married Charles Williams. The record also shows that Thomas Bingham, who was fifteen (15) years of age at the time Mr. Williams was killed, carried a paper route and worked a little at a restaurant, helping clean up. This evidence prompted appellant, Reba Fay Williams, to take the position that Thomas Bingham was not wholly dependent upon Charles Williams for support, but was, at most, only partially dependent. There is no direct evidence that any money earned by Thomas Bingham on his odd jobs was used to provide necessary support for him, nor is there any evidence that his natural father made support payments to Mrs. Williams after her marriage to Mr. Williams. There is direct evidence in the record that Thomas Bingham actually was supported by Mr. Williams, which the trial judge accepted and which is binding on this court on appeal.

As to the benefits to be paid the claimants, the Workmen’s Compensation Act in force at the time of the employee’s death (1971) provides that where the deceased employee leaves a widow and no dependent child, the widow is to receive fifty per cent of the average weekly wages of the deceased, the maximum weekly payment being $55.00 per week. T.C.A. 50-1013(c)(1). The compensation shall be paid during dependency not to exceed the maximum $22,000.00. T.C.A. 50-1013(c)(ll). Where the deceased employee leaves a widow and one or more dependent children, the weekly benefits to be paid are increased to sixty-five per cent of the average weekly wages, with the maximum weekly benefit remaining at $55.00 per week and the total maximum payments remaining at $22,-000.00. T.C.A. 50-1013(c)(l) and (c)(ll). The order of payment of compensation to dependents is set forth in T.C.A. 50-1013(a)(3) and calls for benefits to be paid to the wife and then the children. In this case the trial judge gave the minor children the fifteen per cent increase in benefit payments called for by the act, and divided the money equally between them, leaving the remainder of the payments to be paid to the wife. We see no basic error in this action.

As heretofore noted, in making the awards of compensation benefits, the chancellor provided that Travelers Insurance could pay the benefits in a lump sum commuted according to statute. Under authority of T.C.A. Section 50-1023, workmen’s compensation awards can be commuted to lump sum payments only with the consent and approval of the circuit, chancery, or criminal court. This court has declared that this statute necessarily implies an agreed stipulation or order, and hence, requires an agreement between the employer and the employee as the basis of consent. See Fultz v. Union Carbide Corporation, 219 Tenn. 345, 409 S.W.2d 541 (1966), and cases there cited. And where the employee is deceased, the agreement to accept a lump sum payment, as commuted, in settlement of statutory benefits must be between the employer and the dependents of the deceased workman.

As pointed out by Mr. Justice Chambliss in American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39 (1923),

“The act permits commutation only when the court consents. The use of the word ‘consent’ implies the precedent presentation of an agreed stipulation or order. It negatives the idea of arbitrary or initiatory action on the part of the court. And the language of the last sentence of the section, ‘no settlement or compromise shall be made except, etc.,’ supports this construction, clearly implying that the commutation thus provided for shall be made pursuant only to a ‘settlement or compromise,’ terms inconsistent with ex parte or forcible procedure”.

Here, we have no agreement or compromise as Reba Fay Williams consistently has refused to accept a commuted payment, pointing out that there is a good possibility under the statute that she will eventually receive much larger benefits if they are paid weekly. See T.C.A. 50-1013(c)(4) which provides for increased payments to a Here, we have no agreement or compromise as Reba Fay Williams consistently has refused to accept a commuted payment, pointing out that there is a good possibility under the statute that she will eventually receive much larger benefits if they are paid weekly. See T.C.A. 50-1013(c)(4) which provides for increased payments to a

The judgment of the trial court is affirmed except for the giving of consent to and approving the payment of benefits due the successful claimants in a lump sum as commuted, and that part of the judgment is reversed. Mrs. Charles F. (Reba Nell Carson) Williams and her surety will pay two-thirds of the costs of the appeal and Reba Fay Williams and her surety will pay one-third of the costs.


author: POPE, Justice.

text:
    The STATE of Texas, Petitioner, v. CREDIT BUREAU OF LAREDO, INC., Respondent.
    No. B-4984.
    Supreme Court of Texas.
    Nov. 5, 1975.
    John Hill, Atty. Gen., Joe K. Longley, Asst. Atty. Gen., Austin, for petitioner.

      Stone & Stone, Emerson Stone, Jr., Jacksonville, Salmanson & Smith, Allen E. Smith, Austin, for respondent.
   POPE, Justice.

The question presented is whether the Texas Constitution gives a right to trial by jury in this suit for civil penalties brought pursuant to the Texas Deceptive Trade Practices Act. Tex.Rev.Civ.Stat.Ann. art. 5069, § 10.01 et seq. (1971). The trial court denied the defendants’ request for a jury and after trial rendered judgment against defendants, Miller and Credit Bureau, for civil penalties in the amount of $35,000. The court of civil appeals reversed the judgment of the trial court and remanded the cause for a jury trial. 515 S.W.2d 706. We affirm the judgment of the court of civil appeals.

On April 11, 1972, the State of Texas brought an action against Edward Miller, individually and d/b/a Credit Bureau of Laredo, Inc. to enjoin certain allegedly deceptive practices conducted in violation of article 5069, section 10.02. Credit Bureau was sending to a number of debtors notices which simulated legal process and official action by public officials. The notice forms were styled “Certificate of Assignment,” “Preliminary Law Suit Listing for Civil Court,” “Notice to Appeal,” “Notice of Impending Execution,” and “Seven Day Official Notification.” The suit was resolved on April 20, 1972, by an agreed injunction, the terms of which prohibited Miller and Credit Bureau from continuing the deceptive collection practices.

Credit Bureau thereafter made some changes in its debt collection forms, but the State believed that the revised forms were still deceptive and in violation of the injunction. On the trial of this case, the evidence revealed that Credit Bureau was continuing to mail forms which the injunction apparently was designed to prohibit. After the injunction was issued, Credit Bureau ordered 13,500 “Seven Day Notifications”; 6,000 “Notices of Impending Law Suit”; 5,000 “Preparatory Listings For Civil Court”; and 5,000 “Final Notices Before Suit.” On March 8,1973, the State filed its petition for civil penalties against Credit Bureau in the same court that had issued the injunction. The State sought assessment of penalties of $10,000 for each of seven separate violations. Credit Bureau answered and requested a jury. The trial court denied the jury request, conducted a trial, and rendered judgment that the injunction had been violated, in each of the seven instances, assessing civil penalties of $35,000 against Miller and Credit Bureau, jointly and severally.

This court granted the State’s application for writ of error on points which urge that the court of civil appeals erred in its holdings that (1) defendants were entitled to a trial by jury, and (2) the State hád the burden to prove that the defendants “knowingly” violated the injunction.

Nature of This Suit

Whether the defendants were entitled to a jury requires our first deciding the nature of this suit. The State urges that its right to recover penalties is occasioned by Credit Bureau’s violation of an injunction and that the action is one for civil contempt in which there is no right to trial by jury. It is our opinion that the penalty section of the Deceptive Trade Practices Act, article 5069, section 10.08 shows that the suit is one for civil penalties and not contempt. Subsection (a) of that statute makes it a misdemeanor to attempt to avoid compliance with the Consumer Credit Commissioner’s investigative powers by withholding, concealing or destroying any documentary material or merchandise. Subsection (b) applies to failures to comply with the Commissioner’s civil investigative demand for documentary material, reports, examination under oath, or examination of merchandise. Significantly, subsection (b) makes disobedience of any court order entered under article 5069, section 10.08 “punishable as contempt of that order.” Subsection (c), however, relates to punishment for violation of an injunction issued under article 5069, section 10.04. It contains no reference to contempt, but clearly refers to civil penalties. Thus, the Legislature has enacted an enforcement scheme which embraces convictions for misdemeanors in some instances, punishment for contempt in some instances and suits for payment of civil penalties in others. The Legislature chose to adopt a remedy of civil penalties in the case of a violation of an injunction.

We must next determine whether an action to enforce civil penalties under the Deceptive Trade Practices Act is one to which the right to a trial by jury attaches. Since the Act is silent about the right to a jury, we must determine whether the Texas Constitution fixes the right. The Texas Constitution contains two separate provisions regarding the right of trial by jury. The first is Article I, Section 15, found in the Bill of Rights of the Constitution; the second is Article V, Section 10, contained in the Judiciary Article.

Bill of Rights Jury Article

Article I, Section 15, contains a jury provision similar to that found in the United States Constitution and every other state constitution. It states simply that “the right of trial by jury shall remain inviolate. . . . ” In our opinion the Bill of Rights Article preserved the right to a trial by jury in a suit for the collection of civil penalties. It is well-established that the Bill of Rights provision continues the right to a jury in all actions where that right existed at the time the Constitution was adopted. White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App.1963, writ ref'd n. r. e.); Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.1951, writ ref’d). This interpretation is uniformly given to similar provisions in other jurisdictions. 47 Am.Jur.2d, Jury § 29 at 649 (1969).

Texas, by successive constitutions both as a Republic and as a State, has protected the right to a trial by jury in those cases where a jury would have been proper at common law. Tex.Const. art. I, § 15 (1876); Tex. Const art. I, § 12 (1868); Tex.Const. art. I, § 12 (1866); Tex.Const. art. I, § 12 (1861); Tex.Const. art. I, § 12 (1845); Const. of the Republic of Texas, Declaration of Rights, # 9 (1836); see White v. White, supra; Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124 (1913); Cockrill v. Cox, 65 Tex. 669 (1886); 47 Am.Jur.2d, Jury § 17 (1969).

At common law, suits for civil penalties were tried as actions for debt, and actions for debt were triable before a jury. 47 Am.Jur.2d, Jury §§ 17, 36 (1969); 1 Chitty, Pleadings 263 (3d ed. 1819); 50 C.J.S. Juries § 10 (1947); 3 Wendell’s Blackstone’s Commentaries 161-162 (1847). In Hepner v. United States, 213 U.S. 103, 29 S.Ct. 474, 53 L.Ed. 720 (1909), the United States brought suit to recover the penalty provided for the violation of the Alien Immigration Act. The court reviewed and cited a number of precedents holding that actions for penalties are recoverable in civil actions and held “the defendant was, of course, entitled to have a jury summoned in this case.” United States v. Hindman, 179 F.Supp. 926 (D.N.J.1960), held that the defendants were entitled to a jury in a suit brought against them by the United States for civil penalties for violation of the Federal Trade Commission Act, a statute very similar to the Texas Deceptive Trade Practices Act, article 5069, section 10.01 et seq. See also, Damsky v. Zavatt, 289 F.2d 46 (2d Cir. 1961); Connolly v. United States, 149 F.2d 666 (9th Cir. 1945); Atchison, Topeka & Santa Fe Ry. v. United States, 178 F. 12 (8th Cir. 1910); United States v. Friedland, 94 F.Supp. 721 (D.Conn.1950); United States v. Jepson, 90 F.Supp. 983 (D.N.J.1950); 5 Moore’s Federal Practice, § 38.-31[1], 232-233 (2d ed. 1974). The right to a trial by jury is not limited to the precise form of action in which civil penalties were enforceable at common law. The right exists when “the action involves rights and remedies of the sort typically enforced in an action at law.” Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); 5 Moore’s Federal Practice, § 38.11[7], 128 (2d ed. 1974).

Judiciary Jury Article

We also hold that Article V, Section 10, of the Constitution extends the right to a jury to Credit Bureau in this case. Some decisions have mistakenly treated the Bill of Rights and the Judiciary Articles as identical in meaning, that is, as protecting the right of trial by jury only as .it existed at common law or by statutes in effect at the time of the adoption of the Constitution. Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.1951, writ ref’d).

In Cockrill v. Cox, 65 Tex. 669 (1886), the court correctly wrote that the present Judiciary Article protecting the right to a jury was added by the Constitution of 1845 because the Bill of Rights Article contained in the Constitution of the Republic did not extend to causes in equity. Tex.Const. art. IV, § 16 (1845). In other words, the Judiciary Article was intended to broaden the right to a jury afforded by Article I, Section 15. Tolle v. Tolle, 101 Tex. 33, 104 S.W. 1049, 1050 (1907); Hatten v. City of Houston, 373 S.W.2d 525, 531-535 (Tex.Civ.App.1963, writ ref’d n. r. e.); Walsh v. Spencer, 275 S.W.2d 220 (Tex.Civ.App.1955, no writ). Subsequent constitutions extended the right to a jury to “all cases of law or equity.” Tex.Const. art. V, § 16 (1868); Tex.Const. art. IV, § 20 (1866); Tex.Const. art. IV, § 16 (1861); Tex.Const. art. IV, § 16 (1845). It was the present Constitution of 1876 which changed the words of the earlier constitutions from “all cases of law or equity” to its present form, “trial of all causes.”

The term “cause” is defined in Black, Law Dictionary (4th ed. 1951), as “a suit, litigation, or action. Any question, civil or criminal, litigated or contested before a court of justice.” The United States Supreme Court in Ex parte Milligan, 71 U.S. 2, 112, 18 L.Ed. 281 (1866), stated that in any legal sense, “action,” “suit” and “cause” are convertible terms. The court then defined the terms to mean any legal process which a party institutes to obtain his demand or by which he seeks his right. This broad meaning of the word, “cause,” comports with the interpretation given by other courts and legal writers in the period when our present Constitution was drafted. See also, Fish v. Farwell, 160 Ill. 236, 43 N.E. 367 (1895); Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896); Baltimore & O. R. Co. v. Larwill, 83 Ohio St. 108, 93 N.E. 619 (1910); Abbott, Dictionary of Terms & Phrases used in American or English Jurisprudence 193 (1879); Bouviers, Law Dictionary 211 (1859); 1 C.J., Actions § 26(c) (1914); 1 Ruling Case Law, Actions § 3 (1914).

Special circumstances justify our former holdings that not all adversary proceedings qualify as a “cause” under the Judiciary Article. These cases have been isolated upon a case-by-case determination. Harris, Jury Trial in Civil Cases — A Problem in Constitutional Interpretation, 7 Sw. L.J. 1, 7-13 (1953); 7 Tex.L.Rev. 663 (1928). They include such proceedings as civil contempt proceedings, Ex parte Allison, 99 Tex. 455, 90 S.W. 870 (1906); Crow v. State, 24 Tex. 12 (1859); Johnson v. State, 267 S.W. 1057, 1062 (Tex.Civ.App.1925, writ ref’d); election contests, Hammond v. Ashe, 103 Tex. 503, 131 S.W. 539 (1910); habeas corpus proceedings for the custody of minor children, Burckhalter v. Conyer, 9 S.W.2d 1029 (Tex.Com.App.1928, jdgmt adopted); Pittman v. Byars, 112 S.W. 102 (Tex.Civ.App.1908, no writ); suit for removal of a sheriff, Davis v. State, 35 Tex. 118 (1872); appeals in administrative proceedings, State v. De Silva, 105 Tex. 95, 145 S.W. 330 (1912); Texas Liquor Control Board v. Jones, 112 S.W.2d 227 (Tex.Civ.App.1937, no writ), and others. In each of the above instances, there is some special reason that a jury has been held unsuitable, but no sound reason exists for the denial of a jury in this case. We hold that Credit Bureau was entitled to a trial by jury to determine whether it committed the violations of the injunction with which it was charged, and if so to determine the amount of civil penalties which should be assessed against it.

We disapprove the holding of the court of civil appeals that the State has the burden to prove that Credit Bureau “knowingly” violated the injunction. Section 10.-01 of article 5069 is the relevant statute, and it does not contain the word “knowingly” or any synonym of that word. The statute, in fact, gives us directions for interpreting the statute:

It is the intent of the legislature that in construing Section (a) of this Article, the courts, to the extent possible, will be guided by Section (b) of Article 10.01 of this Chapter and the interpretations given by the Federal Trade Commission and the Federal Courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C., 45(a)(1)).

Tex.Rev.Civ.Stat.Ann. art. 5069, § 10.02(b) (1969).

United States v. J. B. Williams Co., Inc., 498 F.2d 414 (2d Cir. 1974), is helpful in its quotation from the opinion of United States v. H. M. Prince Textiles, Inc., 262 F.Supp. 383, 388 (S.D.N.Y.1966):

[L]ack of willfulness or intention is not a valid defense to an action by the government to recover civil penalties. All that the government need prove is that a cease and desist order has in fact been violated, which has been done in this case. (Citations ommitted) [Sic] The reason for this is obvious. A cease and desist order is designed to induce the defendant to rid himself of any business practices which have the capacity to violate the order. The main objective is to insure the protection of the public which must be protected whether the violations are intentional or not. See Standard Distributors v. F. T. C., 211 F.2d 7 (2nd Cir. 1954); Parke, Austin & Lipscomb, Inc. v. F. T. C., 142 F.2d 437 (2nd Cir. 1944).

We affirm the judgment of the court of civil appeals which reversed the judgment of the trial court and remanded the cause to the trial court.

      . The injunction was in the following terms:
      “It is therefore, ORDERED, ADJUDGED AND DECREED that the Defendants, Edward Miller, individually and d/b/a Credit Bureau of Laredo, Inc., their agents, servants, and employees desist and refrain from doing the following acts and making the following representations in the pursuit and conduct of their debt collection business within the State of Texas . . .:
      “(1) Mailing, sending, or otherwise transmitting and delivering to delinquent debtors any ‘Notice to Appear’ commanding the recipient thereof to appear within 72 hours at Credit Bureau of Laredo, Inc., or threatening that legal proceedings will be started against him when said proceedings have never been commenced in the common and regular course of conduct of Defendants’ debt collection business.
      “(2) Mailing, sending, or otherwise transmitting and delivering to delinquent debtors any printed form which purports to be a ‘Preliminary Law Suit Listing for Civil Court’ and/or shows a ‘seal’ and uses the word ‘Civil Court’ which indicates or tends to indicate that such form emanates from a bona fide court, and that it is connected and associated with an actual court and therefore simulates a form of court process, and furthermore from:
      “(a) Using language in any form to the effect that Defendants have conducted an investigation of the debtor’s monies and property for the purpose of possibly levying upon the same to enforce payment of the debt;
      “(b) Using language which would lead a recipient to falsely and erroneously believe that the debt has been referred to an attorney for immediate law suit.
      “(3) Representing and holding out to the general public that Defendants have a valid Texas charter and certificate of authority to do business by use of the word ‘Inc.’ in any name under which the Defendants may do business without a valid Texas charter or certificate of authority as is required under the laws of Texas.
      “(4) Mailing, sending, or in any manner transmitting or delivering any form of ‘Notice of Impending Execution’ which either exhibits or does not exhibit a ‘seal’, or any form that states or implies that summons or complaint will be filed against the debtor named thereon, or stating, representing, or in any manner implying that the case will be delayed five days to allow settlements without court costs.
      “(5) Mailing, sending, or by any method transmitting or delivering any printed form containing the words ‘Certificate of Assignment’ or which uses the abbreviation ‘vs.’ between the creditor’s name and the debtor’s name so that the recipient believes or tends to believe that an actual case exists between the two parties in the form of a law suit, or any form which asserts that the debtor has seven days to make final payment of the debt or be threatened with law suit by using the following language: ‘WARNING’ and ‘Seven Day Official Notification’.”

      . “(a) Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with Article 10.06 or 10.07 of this Chapter removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any documentary material or merchandise or sample thereof is guilty of a misdemeanor and on conviction is punishable by confinement in the county jail for not more than one year, or by a fine of not more than Five Thousand Dollars, or both.
      “(b) Whenever any person fails to comply with a directive of the Commissioner pursuant to Article 10.06 of this Chapter, or whenever any person fails to comply with any civil investigative demand for documentary material duly served upon him under Article 10.07 of this Chapter, or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the Attorney General, through such officers or attorneys as he may designate, may file, in the District Court in the county in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of Article 10.06 or 10.07 of this Chapter, except that if such person transacts business in more than one county, the petition shall be filed in the county in which such person maintains his principal place of business, or in such other county as may be agreed upon by the parties to such petition. Whenever any petition is filed in the District Court in any county under this Article, the court shall have jurisdiction to hear and determine the matter so presented and to enter such order or orders as may be required to carry into effect the provisions of Article 10.06 or 10.07 of this Chapter. Any final order so entered shall be subject to appeal to the Texas Supreme Court. Disobedience of any final order entered under this Article by any court is punishable as contempt of that order.

      “(c) Any person who violates the terms of an injunction issued under Article 10.04 of this Chapter shall forfeit and pay to the State a civil penalty of not more than Ten Thousand Dollars per violation. For the purposes of this Article, the District Court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General, acting in the name of the State, may petition for recovery of civil penalties.” (Emphasis added.)

      . This subsection contemplates criminal, rather than civil contempt. The distinction has been explained in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911). The character and purpose of the contempt determines its nature. Civil contempt is often viewed as remedial, while criminal contempt is regarded as punitive. See also Shillitani v. United States, 384 U.S. 364, 369-370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).

      . § 15. Right of trial by jury
      Sec. 15. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury. As amended Aug. 24, 1935.

      . § 10. Trial by jury
      Sec. 10. In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.


author: McGEE, Justice.

text:
    Margin D. LEE, Petitioner, v. HOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Respondent.
    No. B-5343.
    Supreme Court of Texas.
    Nov. 26, 1975.
    Rehearing Denied Dec. 23, 1975.

      Harkness, Friedman & Kusin, Donald B. Friedman, Texarkana, for petitioner.
    Atchley, Russell, Waldrop & Hlavinka, Howard Waldrop and Richard W. Whittaker, Texarkana, for respondent.
   McGEE, Justice.

This is a workmen’s compensation case. Margin D. Lee brought. suit against the Houston Fire & Casualty Insurance Company seeking to set aside a final ruling of the Texas Industrial Accident Board denying his claim for workmen’s compensation benefits because no claim was filed with the Texas Industrial Accident Board within six months after the occurrence of the accident as required by Article 8307, Section 4a Tex. Rev.Civ.Stat.Ann. (1967). The trial court entered a judgment in favor of Lee based upon the jury’s finding that good cause existed for the belated filing of his claim. The court of civil appeals reversed the judgment of the trial court and rendered a take-nothing judgment against Lee holding, as a matter of law, that Lee failed to establish continuing good cause for the delay in filing his claim with the T.I.A.B. 521 S.W.2d 739.

The issue before us is whether there is any evidence to support the jury’s unanimous finding that the petitioner, Margin D. Lee, proved good cause existed for his failure to timely file a claim for compensation. The respondent, Houston Fire & Casualty Insurance Company, in agreeing with the court of civil appeals, contends that there is no evidence to support such a jury finding of good cause, maintaining that the record is devoid of any excuse for the late filing. We hold, given the facts and circumstances presented in this case, that sufficient evidence of good cause was presented such that the ultimate question was properly for the consideration of the jury. Therefore, because of the conclusion reached by the jury, the judgment of the court of civil appeals is reversed and the cause remanded to that court for consideration of the points it did not reach.

Lee, a 56 year old painter with a sixth grade education, sustained various injuries when he fell from a ladder. At the time of the accident he was working for Charles Hampton of Jefferson, Texas. Though the injuries were suffered on May 5, 1967, no claim for compensation was filed with the T.I.A.B. until June 16, 1970; a time period spanning approximately 37 months. Before us he argues that good cause existed for the delayed claim filing because of his belief that his employer or supervisor had filed such a claim on his behalf.

In workmen’s compensation actions it is well established that the claimant must plead and prove that he timely presented his claim to the T.I.A.B. and that if there existed a delay in the filing, he must show that good cause existed for his failure to file a claim within the statutory six month time limit. Tex.Rev.Civ.Stat. Ann. art. 8307, sec. 4a (1967). Further, when a claim has not been properly presented within the six month period, good cause must continue to the date when the claim is actually filed. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.1965); Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053 (1939). The meaning of the term “good cause” was clearly set out in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948):

“The term ‘good cause’ for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.”

With the above legal ground rules established, the record in the instant case must be reviewed in order to ascertain whether there is any evidence to support the jury’s finding of good cause for the untimely filing. Upon reviewing a case where the court of civil appeals has held that no good cause existed as a matter of law, the appropriate review standard must be utilized. In Moronko v. Consolidated Mutual Insurance Company, 435 S.W.2d 846 (Tex.1968), this court stated that to hold as a matter of law good cause is not shown is to hold that there is no evidence to support the jury’s finding that the test of ordinary prudence has been met. If there is any evidence of care and prudence in the prosecution of the claimant’s rights, the sufficiency of the evidence is a question for the jury. Texas Employers’ Ins. Ass’n v. Crain, 259 S.W.2d 905 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.). Thus, whether the claimant has exercised that degree of diligence required under the ordinarily prudent person test is usually a question of fact to be determined by the jury or trier of fact. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).

Lee sustained injuries on May 5,1967 and on the same day consulted with a doctor since he had been rendered unconscious and had also injured his elbow in the fall. Lee was given medication to take daily and was back on the job the next day though he has complained of dizziness and persistent headaches ever since the mishap occurred. Four or five days after the accident Lee testified that he asked his employer Charles Hampton and his supervisor James Heim if they had sent in the necessary papers and if all was in order. In response Lee’s supervisor stated that he had sent a report to the insurance company and that Hampton had sent one to the T.I.A.B. A few weeks later another doctor with whom Lee had begun conferring gave Lee a report and advised him to deliver it to his boss to send to the Accident Board. Lee subsequently did so and testified that Hampton agreed to mail the report to the T.I.A.B. Lee testified that a month or so after this, his supervisor again assured him that he had sent a report to the insurance company and that Hampton had mailed one to the Accident Board. Later, in August of 1967 Houston Fire & Casualty Insurance Company paid a $90 medical bill incurred by Lee. Thereafter, on April 8, 1969, an elapsed period of about 20 months, an independent insurance adjuster named Leach on behalf of the Houston Fire & Casualty Insurance Company contacted Lee with reference to a final settlement. Over the next 13 or 14 months Leach met with Lee on many occasions. Lee testified that the insurance adjuster assured him not to worry about workmen’s compensation benefits; that he would be taken care of. In June of 1970 Lee was informed that no claim had ever been filed and that he would receive no compensation for his injuries. Shortly thereafter, Lee was discharged from the painter’s position he had held with Hampton’s company for the past 18 years. On June 16, 1970 Lee personally filed a claim with the T.I.A.B.

The totality of Lee’s conduct must be considered as elemental in determining ordinary prudence. Moronko v. Consolidated Mutual Insurance Company, 435 S.W.2d 846 (Tex.1968); Texas Employers Ins. Ass’n v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.—Amarillo 1940, writ ref’d). In the present case we are confronted with facts revealing that Lee sustained injuries while in his eighteenth year of employment for a man he trusted and considered to be a friend. He returned to work full time the day after the accident and was paid the same or a greater hourly wage than that he had been receiving prior to the accident. On more than one occasion within a few months after the mishap, he had been assured by both his employer and supervisor that the proper papers had been filed on his behalf. Months after the accident the insurance company paid in full Lee’s medical bills. Many months thereafter the insurance company was attempting to negotiate a settlement with Lee. Given these facts, there existed a sufficient evidentiary basis to take the question of good cause to the jury.

Lee was not fully cognizant of the fact that a claim was required to have been filed with the Texas Industrial Accident Board within a statutorily prescribed period of time. Since a claimant is presumed to know that a claim must be presented within six months of the accident, ignorance of the six month filing requirement will not excuse a failure to timely comply. Allstate Insurance Company v. King, 444 S.W.2d 602 (Tex.1969). In the instant case, ignorance of legal duties is not our question as there is also evidence that Lee relied on his employer or supervisor to file whatever papers were necessary on his behalf. Reliance on statements of employers or their agents may constitute good cause for a delayed filing. Twin City Fire Insurance Company v. King, 510 S.W.2d 370 (Tex.Civ.App.—Houston [1st Dist.] 1794, writ ref’d n. r. e.).

Both the court of civil appeals and the respondent insurance company rely heavily on the decision announced by this court in Allstate Insurance Company v. King, 444 S.W.2d 602 (Tex.1969), as supportive of their argument that there is no evidence to support the jury’s finding of good cause in the present case. In King, the court held that there was no evidence to support the jury’s finding of good cause for King’s failure to file his claim until 16 months after his accident. Due to the factual pattern present in King, that case is clearly distinguishable from the case at bar. King was injured on February 23, 1965 and because the injuries sustained impaired his working ability, he was discharged from his job less than two months later on April 13, 1965. In King, the injured employee was fully aware of the seriousness of his injuries and of his incapacity. Nevertheless, he received no benefits of any kind from either his employer or the insurance company after he had ceased working. Regardless of this fact, King filed no claim seeking compensation for these injuries until 14 months after his discharge on June 9, 1966. A further differentiating factor presented in King is that no one ever contended that anyone had told King that a claim had actually been sent to the Texas Industrial Accident Board on his behalf. Therefore in King the court correctly held that a person of ordinary prudence would not have remained totally inactive and unconcerned about his rights as long as King did in sole reliance upon his employer’s promise to file a claim. In the cause before us much more is present than sole reliance on an employer’s promise to file a claim since Lee testified he was told that a report had actually been sent to the Texas Industrial Accident Board. Lee did not rely on a future promise but upon a present, purportedly completed act. King is clearly distinguishable and therefore it is not determinative of the outcome of this case. The other authorities relied upon by the respondent insurance company are also readily distinguishable. In the situations therein presented it is abundantly apparent that the claimant failed to act as an ordinarily prudent person.

Given the totality of the facts, circumstances, and conduct presented us, combined with the stringent appellate review standard operative in such cases, we cannot agree that the evidence presented in this particular controversy reveals that the late filing was due to a lack of diligence as the only reasonable conclusion. It may not be said as a matter of law that good cause did not exist for the untimely filing. Therefore, the judgment of the court of civil appeals is reversed and the cause remanded to that court for consideration of the points it did not reach.

      . The testimony elicited from Lee by his attorney on this point was as follows:
      Q. After you fell back in 1967 did you talk to Mr. Hampton about workmen’s compensation benefits?
      A. Yes, sir.
      Q. Ail right. And what did your conversation consist of?
      A. I asked him had they sent in papers and all the papers, were they in order. And I also asked Mr. Heim, his Superintendent and asked him had they sent them in and he said they had, said, “I have sent in the one to the insurance company, Mr. Hampton sent in the one to the Accident Board.”

      . On cross examination with reference to this point, Lee testified as follows:
      A. Dr. Shipp from Shreveport filled this out, a report, and he told me, said, “Give this to Mr. Hampton and tell him to mail it to the Accident Board in Austin.” . And I gave it to Mr. Hampton in the Sherry Inn Hotel — Motel.

        Q. AH right. And he told you he would send that in?
      A. He told me he would mail it in the next day, he had to fix out some papers to go in with it.
      Q. But that was a report from Dr. Shipp, am I right on that?
      A. No. That was a report to the Accidental Board.

      . See, Maleski v. Texas Employers Insurance Association, 471 S.W.2d 416 (Tex.Civ.App.—Corpus Christi 1971, no writ); General Accident Fire & Life Assurance Corp. v. Hardin, 290 F.2d 862 (5th Cir. 1961).

      . See, Travelers Insurance Company v. Echols, 508 S.W.2d 422 (Tex.Civ.App.—Texarkana 1974, no writ); Texas General Indemnity Co. v. Youngblood, 466 S.W.2d 329 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.).


author: ROBERTS, Judge. MORRISON, Judge DOUGLAS, Judge DOUGLAS, Judge

text:
    Pablo RIOJAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49616.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Dissenting Opinion on Rehearing Dec. 10, 1975.

      Gene A. Garcia, Rockport, for appellant.
    John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a felony conviction for possession of marihuana. The jury assessed punishment at five years’ imprisonment.

On February 6, 1974, James Russell, a Rockport police officer, received information from a confidential informant that the appellant was in possession of marihuana at his residence. The informant told Russell that he had seen Riojas in the house with a sizeable quantity of marihuana.

After receiving this information, Russell began a surveillance of the appellant’s house. As a result of the informant’s tip and the surveillance, Russell was able to present the following affidavit to the magistrate:

“I James Russell, do solemnly swear that heretofore, on or about the 6 day of February, A.D. 1974, in the City of Rock-port Aransas County, Texas, one Paul Riojas, and person or persons whose names indentities and descriptions are unknown to affiant did then and there unlawfully possess and does at this time unlawfully possess a narcotic drug and dangerous drug, to-wit: Marijuana in residence, and motor vehicles being described as one story wood framed house, gray with white trim and motor vehicle with 1973 Texas Licience Plates HTS-464 Black over red GTO and a Plymouth Roadrunner, JSK — 161 located 1126 Cedar Street Rockport, Amasas County Texas in the City of Rockport, Aransas County, Texas, which said residence is possessed, occupied, under the control and charge of Paul Riojas, and person or persons who names, identities and descriptions are unknown to affiant
“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“I haver been imformed of the foregoing setout facts by a person, who I know to be reliable, credible, and trustworthy, who states the following facts: That Paul Riojas has a large quantity of Marijuana concealed in his residence at the above described location. That he (the informat) had been to Paul Riojas residence within the past 48 hours and has personally seen Riojas with a number of Lids of Marijuana in his possession. That on that occasion Riojas told him (the in-format) that he kept 10 Lids of Marijuana in a cardboard shoe box in his bedroom closet, also he kept in a tin shed behind the residence several more lids of Marijuana.
“On the 6th day of February, 1974, between the hours of 5 and 7:00 P.M. I, an officer with 2 years experience in nor-catics investigation, along with one other experience norcatie officer, set up a visual surveillance of the residence of Paul Riojas at the location described above and observed several persons known to myself and the other officers as users of nor-catics, enter the residence of Paul Riojas, remain there-in for approximately 5 minutes and then leave the premises.
“I received the information concerning the above described violation of law from the above referred to informant on this the 6th day of February, 1974.
“Wherefore, I ask that a warrant to search for and seize the said narcotic drug and dangerous drug at the above described premises be issued in accordance with the law in such cases provided.
/s/ James Russell ”

The affidavit was sworn to before the magistrate, who then issued a warrant authorizing the search of the house and vehicles named in the affidavit. Russell and other officers then went to the house to execute the warrant. They found two marihuana cigarettes in appellant’s bedroom, 11.3 grams of marihuana in a drawer in appellant’s room, and some marihuana seeds in appellant’s car. This marihuana found in the house and car weighed less than four ounces.

However, the officers at the same time searched a locked shed which was located on the premises approximately fifty feet from the house and fifteen feet from appellant’s car. There they found 9.4 pounds of marihuana. Appellant’s motion to suppress was overruled by the trial court, and all of the marihuana was introduced at the appellant’s trial.

Appellant’s first two grounds of error challenge the sufficiency of the affidavit and search warrant. In considering these grounds, we must first determine whether they were properly preserved for review.

Appellant’s motion to suppress was heard and overruled on February 22, 1974. The case was tried on the merits some ten weeks later, on May second and third. At trial appellant failed to object to the introduction of the marihuana in evidence.

The issue is whether an objection is necessary to preserve error in the admission of evidence where a motion to suppress that evidence has been overruled by the trial court on a day prior to the first day of trial.

We necessarily begin our analysis with Article 40.09, Sec. 6(d)(3), Vernon’s Ann.C. C.P., which provides:

“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.”

In Graves v. State, 513 S.W.2d 57, 59 (Tex.Cr.App.1974), this Court unanimously held this section to apply to pre-trial motions to suppress heard on the day of trial. Cf. Powers v. State, 456 S.W.2d 97 (Tex.Cr. App.1970). It is now contended that since the motion to suppress took place ten weeks before the appellant’s trial, a different rule should apply.

Our holdings in Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App.1972), and Simpson v. State, 507 S.W.2d 530 (Tex.Cr.App.1974), are not in point. Those cases held only that motions in limine are not ordinarily sufficient to preserve error absent an objection at trial.

But motions to suppress — unlike motions in limine — are specifically authorized by statute: Article 28.01 of our Code of Criminal Procedure allows the trial court to set pre-trial hearings, at which time motions to suppress are to be determined. The holdings in Brazzell and Simpson are thus inapplicable to motions to suppress.

In Smith v. State, 468 S.W.2d 828, 830 (Tex.Cr.App.1971), this Court unanimously held that the timing of a pre-trial hearing rested within the sound discretion of the trial judge. A failure to apply our holding in Graves to the instant case would be to hold that a defendant should be penalized simply by the exercise of that discretion. We cannot agree that such a result is called for in light of the clear language of Article 28.01 and of Article 40.09, Sec. 6(d)(3). If a motion to suppress is not sufficient to preserve error, then what purpose can it possibly serve — unless we assume that trial judges never err? It would be just as logical to argue that a defendant must make oral as well as written objections to preserve error in the court’s charge, despite the specific provision of Article 36.14, V.A.C. C.P., to the contrary.

In their published commentaries to Article 28.01 of our 1965 Code of Criminal Procedure, my brothers Morrison and Onion both noted that, for the first time, Texas procedure allowed the trial court to determine motions to suppress prior to trial. Judge Onion also observed that the most obvious asset of the new statute was its great potential for saving many previously-wasted hours during and immediately prior to trial. Clearly, this expeditiousness was also part of the Legislature’s intent in enacting Article 28.01. To hold that error was not preserved by the motion in the instant cause would be to lose this time-saving feature of Article 28.01, since such motions would no longer be sufficient to preserve error.

We therefore hold that the overruling of any pre-trial motion to suppress is sufficient to preserve error in the admission of the evidence made the basis of the motion to suppress. To do otherwise would violate the clear intent of our Legislature.

We turn to appellant’s first ground 'of error which alleges that the search warrant was issued without probable cause. Appellant argues that the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), were not met in that the affiant lied to the magistrate and the magistrate failed to conduct an independent investigation of the affiant. We have often held that in determining the sufficiency of an affidavit we are limited to the four corners of the document itself. E. g., Collins v. State, 502 S.W.2d 743 (Tex.Cr.App.1973). The affidavit is substantially like the affidavit approved by this Court in Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1972). We therefore hold that the marihuana taken from appellant’s house and car was properly admitted into evidence. Cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see also Gonzales v. Beto, 425 F.2d 963 (5th Cir.), cert. den. 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), and Polanco v. Estelle, 507 F.2d 81 (5th Cir. 1975), cert. denied - U.S. -, 96 S.Ct. 101, 46 L.Ed.2d 78 (1975). Also, appellant admitted possession of the marihuana found in his bedroom. See Jaramillo v. State, 504 S.W.2d 853, 855 (Tex.Cr.App.1974).

Appellant’s second ground presents the more difficult question, namely, were the officers legally justified in searching the shed? However, the threshold issue is whether the appellant had standing to object to the admission of the marihuana found in the shed.

At the hearing on the motion to suppress, the appellant’s father testified that he had rented the shed along with the house in which he lived with his son, the appellant.

The appellant also testified at the hearing. He stated that he had rented the shed some two months before his arrest to a man whose name he remembered only as “La Mano Mocha.” He testified that he had never had a key to the locked shed during the time it was rented to “Mocha.” He categorically denied any knowledge of the marihuana in the shed.

Appellant thus abandoned any pos-sessory interest he might have claimed in the shed. See Martin v. State, 401 S.W.2d 831 (Tex.Cr.App.1966). However, the record reflects that the appellant was legitimately on the premises at the time of the search, and that the search was directed against him. Further, the instant case clearly involves a seizure of contraband; this seizure in turn resulted in an indictment charging an offense in which the appellant’s possession of the seized contraband at the time of the search was an essential part of the State’s case. Under the Supreme Court’s holding in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the appellant has standing to contest the search of the shed. See also Vines v. State, 397 S.W.2d 868 (Tex.Cr.App.1966).

Nor can we agree that the Court’s decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), eliminated the need for this “automatic” standing rule of Jones, an issue which was pondered but not resolved in Brown v. United States, 411 U.S. 223, 227-228, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In fact, the case before us provides an excellent justification for the continuing vitality of the Jones rule.

Here, the appellant was on the premises of the search but denied, both at the hearing and during trial, any possessory interest in the shed. To gain standing under Simmons at the pre-trial hearing, the appellant would have been required to assert, through his own testimony “connecting himself with the seized evidence,” some interest in the shed and its contents. Simmons v. United States, supra, at 393, 88 S.Ct. at 976. Then, to pursue his chosen defense at trial, he would have had to testify in a manner contrary to his testimony at the hearing. Under Texas law, this constitutes aggravated perjury. V.T.C.A. Penal Code, Secs. 37.02-37.04 (1974).

It is no answer to contend that the appellant in such a situation need not testify at the trial on the merits. Article I, Section 10 of our Texas Constitution provides that an accused has the right to be heard by himself, or by counsel, or both. See Carlile v. State, 451 S.W.2d 511, 513 (Tex.Cr.App.1970). This naturally encompasses the right to present a defense by one’s own testimony. This is a valuable right which should not be lightly abandoned. We will not do so in order to establish a rule that would make the defensive posture of the appellant in this case—or any defensive posture save that outlined in Simmons —unavailable to this or any other similarly-situated defendant. See also Jones, supra, at 263-264, 80 S.Ct. 725; Brown, supra, at 229, 93 S.Ct. 1565.

We hold that the appellant had standing to contest the search of the shed. Jones v. United States, supra.

Turning finally to the substance of appellant’s second ground, we hold that the search of the shed was beyond the scope of the affidavit and warrant and hence invalid.

In McTyre v. State, 113 Tex.Cr.R. 31, 19 S.W.2d 49 (1929), this Court held that the description in the affidavit of the place to be searched controls the description of the place in the search warrant. See Art. I, Sec. 9, Texas Constitution,Vernon’s Ann. St.; Art. 18.04, Vernon’s Ann.C.C.P. (Supp. 1974); Robie v. State, 117 Tex.Cr.R. 283, 285, 36 S.W.2d 175, 176 (1931).

In McTyre the affidavit described the place to be searched as a “private residence,” while the warrant “commanded the officers to search the ‘private residence, outbuildings and premises occupied by the appellant.’ ” McTyre, supra, 113 Tex.Cr.R. at 32, 19 S.W.2d at 49-50 (Emphasis added). The search in McTyre encompassed not only the residence but also an outhouse approximately 75 feet from the house and a chicken house as well. This Court found that the outhouse and chicken house were within the curtilage of the residence and held that the search of those two buildings required reversal, since they were not named in the affidavit.

The shed in appellant’s yard was clearly within the curtilage of the house, yet the search warrant, like the affidavit, directed only that the house and two cars be searched. We cannot escape the conclusion that the search of the shed violated appellant’s rights under the Fourth Amendment to the United States Constitution and Article I, Sec. 9 of our Texas Constitution. McTyre v. State, supra. Cf. Huffmeister v. State, 341 S.W.2d 928 (Tex.Cr.App.1960).

Moreover, since it is undisputed that the marihuana found elsewhere on the premises did not weigh four ounces, harm is evident.

The judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

I dissent to the reversal of this conviction, because appellant failed to object when the fruits of the search were admitted into evidence at the trial.

Never before today has this Court held that an objection made at the time of a pre-trial suppression hearing will carry over to the trial when the suppression hearing was held earlier than on the day of the trial. See Graves v. State, supra.

The reason for this limitation is to insure that the questions presented and the objections made earlier are fresh in the trial court’s mind. Further, although the trial court held that certain evidence was admissible at the earlier hearing, the facts presented at the trial may require a different ruling. From a practical standpoint, this new rule requires a trial court to object himself, without any word from counsel, when certain testimony is offered. Would not reason and sound judicial practice require that the trial court be given a second opportunity to pass upon the admissibility of controversial evidence.

I vigorously dissent to the new rule this day promulgated.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the ground that the tin shed behind the residence was not described in the search warrant or affidavit for the warrant.

Considering the affidavit for the warrant as a whole, the tin shed is sufficiently described. The officer, affiant, was informed “that he [appellant] kept 10 Lids of Marijuana in a cardboard shoe box in his bedroom closet, also he kept in a tin shed behind the residence several more lids of Marijuana.”

The affidavit was referred to and was made a part of the search warrant. Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1972), restated the rule and this Court held that where the affidavit is incorporated by reference, it becomes a part of, and can be used to aid the description in, the search warrant.

The officer asked the magistrate to issue the search warrant as follows:

“Wherefore, I ask that a warrant to search for and seize the said narcotic drug and dangerous drug at the above described premises. . .

The tin shed was a part of the premises as shown by the affidavit. Marihuana was specified as being located in the tin shed. Construing the affidavit and warrant as a whole, the premises to be searched included the shed.

The rule that excludes evidence because of an unlawful search is being unduly and unreasonably extended in this case because of the refusal of the majority to consider the entire affidavit and the search warrant.

The majority changes the rule and now holds that a defendant does not have to object immediately before or at the time of trial.

The decision by the majority will permit trial judges to be ambushed. The majority has changed the rule after this case was tried.

Many cases have held that, where a motion in limine has been acted upon prior to trial, a defendant must object at the time of or immediately before the trial. See Simpson v. State, 507 S.W.2d 530 (Tex.Cr.App.1974), and Whatley v. State, 488 S.W.2d 422 (Tex.Cr.App.1972).

Where a motion to suppress has been heard at trial, it has been held that another objection did not have to be made and that this was sufficient objection under Article 40.09, Section 6(d)(3), V.A.C.C.P. Powers and Dion v. State, 456 S.W.2d 97 (Tex.Cr.App.1970). In Graves v. State, 513 S.W.2d 57 (Tex.Cr.App.1974), a hearing on a motion to suppress evidence was had on the day of the trial. This Court wrote:

“. . . Since the trial court had immediately before overruled the motion to suppress, it was not necessary for appellant to object when the contraband was offered. . . .” (Emphasis Supplied)

A motion to suppress evidence filed before the trial is a motion in limine. In limine merely means prior to trial. This motion titled a motion to suppress is still a motion in limine. The experienced trial judge was no doubt aware of our previous decisions holding that an objection had to be made at the time of the trial.

The motion in the present case was overruled by the court ten weeks prior to the trial. It was not called to the court’s attention during the trial. The trial judge has a multi-county district; he and other judges with heavy case loads should not be expected to remember every motion filed or remember if they were titled motions in li-mine or motions to suppress. Judges in metropolitan districts may have problems because in many cases one judge will hear motions prior to trial and another judge will conduct the trial. This decision will add further problems and greater opportunities for sandbagging trial judges. What if a defendant labels a motion “In Limine” which is overruled but asks that evidence be suppressed, will this be sufficient to obviate the necessity for an objection at the trial?

The reasons by the majority that a different rule should be applied in motions to suppress because they are statutory has no support by the cases. It is not necessary for a trial judge to hear such a motion even though it is statutory. In Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967), this Court held in a unanimous opinion that the trial judge did not have to hear a motion to suppress evidence prior to trial. Trial judges in fear of being ambushed or sandbagged may feel inclined to deny hearings on motions to suppress and require a defendant to object during the trial.

Counsel should have given the trial court notice immediately preceding or at the time of the trial. A motion over two months old does not provide sufficient notice.

The majority has cited no case to support its holding.

The judgment should be affirmed.

DOUGLAS, Judge

(dissenting opinion on the State’s motion for leave to file motion for rehearing).

The majority overrules the State’s motion for leave to file a motion for rehearing. In the original opinion it asserts that Article 40.09, Section 6(d)(3), V.A.C.C.P., is followed. That statute is not applicable; it provides that an objection may be made when evidence is “offered” outside the presence of the jury. No evidence had been offered then weeks prior to the trial. The burden is on a defendant in a hearing on a motion to suppress evidence. The State does not have to offer evidence at that time. Formerly a defendant had to object in front of the jury. Article 40.09, Section 6(d)(3), V.A.C.C.P., changed that to permit an objection to “offered” evidence outside the presence of the jury.

The rule adopted by the majority is neither reasonable nor practical. Busy trial judges are unable to remember every motion and ruling filed months prior to a trial and prosecutors in the trial of a case may not have notice of rulings on motions to suppress. Some prosecution staffs have a division that handles pretrial motions and another division for trial work. Further, different judges might hear motions and another judge will preside at the trial. Will the majority hold that a trial judge is bound by a motion to suppress held two years earlier? This question could arise if there has been an appeal and a reversal upon another ground.

Since the majority opinion was written, some trial judges, in order not to be bound to have total recall of all details, have refused to grant hearings on motions to suppress. More will no doubt adopt the practice and may do so under Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967), and Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974).

The State’s motion for rehearing should be granted and the judgment affirmed, especially in view of the fact that the premises searched were described in the affidavit which was made a part of the search warrant.

The judgment should be affirmed.

      . We note that the Court in Simmons held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons, supra, at 394, 88 S.Ct. at 976. (Emphasis added). The Court did not speak to the perjury issue, nor need we do so. It is enough to say that we decline to abandon settled Supreme Court law to pursue a course which would encourage perjured testimony.

      .Nor can it be said that the appellant waived his right to contest the search of the shed by admitting possession of the marihuana found in his bedroom. Nicholas v. State, 502 S.W.2d 169, 173-175 (Tex.Cr.App.1973). Thus, Jaramillo v. State, 504 S.W.2d 853 (Tex.Cr.App.1974), is not in point.

      . The Court’s holding in Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925), does not provide authority to the contrary. The description of the place to be searched in Steele was much broader than that in either McTyre or the instant case.

      . We need not decide whether a different situation might be presented if the search of the shed had occurred after the discovery of the remaining marihuana. Cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).