author: MORROW, P. J.

text:
    SYNAGOGUE v. STATE.
    No. 15673.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Rehearing Denied Jan. 11, 1933.
    David E. O’Eiel, of Beaumont, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is rape; penalty assessed at confinement in the penitentiary for five years.

The offense charged is rape upon a female under the age of eighteen years; also rape by force. The alleged injured party was L. O. D. Erank.

A plea of guilty was entered. An application for a suspended sentence was filed. There was a general verdict of guilty of rape.

The appellant prepared and sought to file a motion for new trial. The case was tried January 22, 1932, and a verdict rendered on the same day. On March 21, 1932, the appellant presented to the clerk for filing a motion for new trial. The court declined to permit; the filing of the motion or to consider it. The motion was supported by the appellant’s affidavit and that of several others. In the motion it is claimed that his plea of guilty was inadvertently entered and that he desired on another trial to enter a plea of not guilty. It is averred that the appellant was only eighteen years of age, of French extraction, but slightly acquainted with the English language, was unable to read or write in said language, and was unfamiliar with the court proceedings; that he was in jail at the time his trial was called; that his relatives (father, mother, sisters, and others) were not aware of the setting of the case. He claimed that upon his arrest he employed an attorney and paid him $22, such being all the money possessed by the appellant, and that at the time of the trial he was unable to procure additional money; that he was advised by his attorney to plead guilty and ask for a suspended sentence, which he did. He was admonished by the court touching his rights and the consequence of the plea of guilty.

Appellant contends in the motion for new trial that he was not guilty, asserting that his relations with the prosecutrix were entered into voluntarily upon her part, and that she was above the age ,of eighteen years. There is attached to the motion the affidavits of a number of witnesses, whose testimony, if believed, would tend to lead to the conclusion that the prosecutrix was above the age of eighteen years at the time the offense is charged to have been committed.

It is to be noted that in the indictment there are two counts: One charging rape by force; the other implying consent. The evidence heard upon the trial, as it appears before this court, embraces no details concerning the transaction upon which the verdict is •based. This court does not know whether the offense of which the appellant was convicted was rape by force or .rape by consent of a female under eighteen years of age. If rape by force, the affidavits attached to the motion for new trial would be of little consequence, They all relate to facts and circumstances tending to show that the age of the prosecutrix was more than eighteen years.

The right to file and have heard a motion for new trial is deemed absolute, provided the right is asserted within the time specified by law. See article 755, O. C. P. 1925, in which the following appears: “A new trial must he applied for within two days after the conviction; but in felony cases for good cause shown, the court may allow the motion to be made at any time before the adjournment of the term at which the conviction was had.”

There appearing in the present case no abuse of the discretion of the court in refusing to consider the appellant’s motion for new trial, and no indication that he arbitrarily- declined to consider any excuse for delay, this court is not authorized to interfere with the judgment. See White v. State, 10 Tex. App. 167; Hernandez v. State, 18 Tex. App. 134, 51 Am. Rep. 295; Kirpatrick v. State, 85 Tex. Cr. R. 172, 211 S. W. 230; Cardwell v. State, 119 Tex. Cr. R. 186, 44 S.W.(2d) 681, and other cases collated in Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, pp. 55 and 56.

Upon the record before us, we are constrained to order an affirmance of the judgment, which is accordingly done.


source: Caselaw Access Project

author: CALHOUN, J. PER CURIAM. MORROW, P. J.

license: Public Domain

text:
    HOPPE v. STATE.
    No. 15324.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Rehearing Denied Jan. 11, 1933.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

The indictment contained three counts. The first count charged the appellant with unlawfully possessing intoxicating liquor for the purpose of sale; the second count charged the appellant with the unlawful possession of certain still, mash, materials, equipment, and supplies for the manufacture of liquor capable of producing intoxication; the third count charged the appellant with the unlawful manufacture of intoxicating liquor. All of the counts were submitted to the jury in the court’s charge, and the jury found the appellant guilty as charged in the third count in the indictment.

Peace officers armed with a search warrant authorizing them to search certain premises alleged to be occupied by an unknown party went to the place and saw appellant and a companion engaged in carrying what was aft-erwards ascertained to be a 10-gallon keg of whisky and burying it in the ground some distance from the house. The officers were unable immediately to' get on the premises, and after making their way to the premises, the appellant and the party with him fled and the officers gave chase, finally overtaking appellant and his companion, whereupon appellant exclaimed: “It is mine; I am caught; I had to make a living for my wife and kids.” The' officer further testified that there was a three-room house with tar paper on it and a garage with a shed on. the east end on the premises. He further testified that in the shed adjoining the garage he found 6 barrels of mash, 15 gallons of whis-ky, about a one hundred gallon still in operation, and there was 15 gallons of whisky in the shed, 10 gallons out some 75 or 80 steps from the house, and there was also about 3 gallons in a 10-gallon crock in the shed under the spout of the still, and about 2 gallons in a 50-gallon barrel. He further testified that the edge of the garage was about 40 feet from the house and the shed was on the far end of the garage about 60 or 65 feet from the house. The officer further testified that he didn’t make any search of the residence on the premises.

The receipt of the evidence by the officers was attacked on the grounds: First, because although the affidavit upon which the search warrant was issued purports to be the positive knowledge of the officer and not to be based simply upon probable cause, the affidavit does not attempt to allege the positive existence of one single fact which would justify the issuance of a search warrant in this case, but alleges in the alternative a number of supposed facts, some of which not being penalized by statute and not being within the provisions of article 691 of the Penal Code; second, because the affidavit in utter disregard of the provisions of title 6'of the Code of Criminal Procedure (article 304 et seq.) does not contain either the name of the owner of the premises to be searched or any description of such owner; third, because the description contained in the search warrant is wholly insufficient to locate the premises to be searched and to justify any search thereof.

The affidavit for the search warrant is as follows:

“Before me, Jim D. Miller, a Justice of the Peace in and for said County, on this day personally appeared Burt M. Bryan, and Jack Givins, who after being by me duly sworn,'on "oath, depose and say: that parties unknown was, on the 15th day of November, A. D. 1931, in charge of a certain place, building and structure, in said county and state, situated on premises described as follows, to-wit:
“A three room tar paper covered house and a garage just east of house ¾ mile north of Bear Creek bridge on Borger-Pampa road and just west of Bear Creek and is therein engaged in the unlawful possession of intoxicating liquors, which is kept, sold, bartered or given away, or manufactured for transportation to or from said house, place, or building on said premises, in violation of law; also that there is other certain property, containers, utensils, and instrumentalities kept in and used in maintaining said house and premises in violation of law, to-wit: bottles, jars, jugs, containers, etc., said instrumentalities to be used in connection with and for the purpose of storing, manufacturing, selling, transporting, receiving and delivering, or giving away intoxicating liquors, said liquors being whiskey, wine, beer, brew or other 'liquors capable to produce intoxication, and the keeping of same for possession or sale, as aforesaid is a common and public nuisance and a violation of the law.”

In article 691, P. C. 1925, it is declared that a search warrant may be issued for the purpose of seizing and destroying any intoxicating liquor possessed or sold or to be sold, transported, and manufactured in violation of the law and for seizing and destroying instrumentalities for the manufacture, transportation, and sale of such liquor. It is nowhere alleged in the affidavit for the search warrant that the premises for which the search warrant was asked was a private residence of any one. If it had contained such an allegation that the place sought to be searched was a private residence, the affidavit would be clearly insufficient to warrant the issuance of a search warrant thereon. While the affidavit in this case is inaptly drawn> nevertheless it contains allegations to the effect that the persons in charge of said premises were therein engaged in the unlawful possession of intoxicating liquor which is kept, sold, bartered, or given away or manufactured for transportation to and from said house, place, or building on said premises. Those allegations under article 691 of the Penal Code were sufficient to authorize the issuance of the search warrant in the absence of any allegation alleging the premises were a private residence. There is no evidence appearing in the record that the garage or shed which was searched and where the still and whisky were found was in any manner used or occupied by the appellant or any other person as part of his residence. In fact, the proof showed that it was used and occupied solely for the purpose of manufacturing intoxicating liquor.' It is, therefore,-under the decisions of this court, not within the curtilage of the appellant and for that reason the trial court did hot err in receiving in evidence the testimony offered. See Wolf v. State, 110 Tex. Cr. R. 124, 9 S. W.(2d) 350; Worth v. State, 111 Tex. Cr. R. 228, 12 S.W.(2d) 582; Ruhmann v. State, 113 Tex. Cr. R. 527, 22 S.W.(2d) 1069; McTyre v. State, 113 Tex. Cr. R. 31, 19 S.W. (2d) 49.

In this case, so far as the record discloses, there is nothing showing that the party or parties alleged to be in possession or using said premises was in fact known or could be described. In the case of Naulls v. State, 115 Tex. Cr. R. 44, 27 S.W.(2d) 180, 181, where the contention was made that the affidavit for the search warrant was insufficient as the basis for the search warrant because it failed to name or describe the defendant or the owner of said premises so searched, after citing article 691, P. C., authorizing the issuance of'a search warrant under title 6, C. C. P. (article 301 et seq.), and also article 310. title 6, C. C. P., this court used the following-language in an opinion by Judge Martin: “Construing the various articles of title 6, Code Cr. Proc., one of which we have just quoted, we are of the opinion that the affidavit and search warrant in the instant case were valid, as against the objection urged, and that the evidence received showing the result of the search of appellant’s premises was admissible. By the express terms of the quoted article the search warrant may be issued when the owner of the premises is unknown. If his name is known, it must be stated, but, if unknown and his identity known, he must be described ; but, whep neither his name or identity is known, he may be described as unknown.”

The objection is also made that the description contained in the affidavit for the search warrant was wholly insufficient to locate the premises to be searched and to justify any search thereof. The warrant described the premises to be searched as “a three room house covered with tar paper and a garage just east of said house, ¼ mile north of Bear Creek bridge on Borger-Pampa road and just east of Bear Creek.” We are of the opinion that the description of the premises was sufficiently definite to -enable the officers to locate and distinguish the premises to be searched from other places in the community. See Wilson v. State, 106 Tex. Cr. R. 75, 290 S. W. 1103; Story v. State, 107 Tex. Cr. R. 266, 296 S. W. 296; Hernandez v. State, 109 Tex. Cr. R. 246, 4 S. W.(2d) 82. 1

Being unable to agree with appellant’s contentions, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing, counsel for the appellant reiterates the contention made on the original hearing, namely, that the affidavit for the search warrant was insufficient to warrant the search and the reception of the evidence of the result of the search. Our review of the matter leaves us of the opinion that the conclusion reached and stated in the original opinion reflects the proper disposition of the points in question.

In the amended motion for new trial are averments claiming that the jury in its deliberation made remarks indicating that the failure of the appellant to testify in his own behalf was considered as a circumstance against him, contrary to article 710, C. C. P. 1925. The testimony of the jurors touching the occurrence during their deliberation is not brought up for review. The only evidence found as supporting the averments of the motion is the ex parte affidavit of L. A. Mayer, a member of the jury. There is no bill of exception touching- the matter showing the action of the court further than a formal order overruling the motion for new trial. In the order there is a statement that on the hearing of the motion for new trial the court heard evidence. Under such circumstances, the presumption is indulged that the evidence heard by the court justified his action in overruling the point made. The matter has been discussed in numerous cases. See Tindale v. State (Tex. Cr. App.) 53 S.W.(2d) 66; Sanders v. State, 117 Tex. Cr. R. 426, 36 S.W.(2d) 1032; Stapler v. State (Tex. Cr. App.) 47 S.W.(2d) 837; Sykes v. State, 109 Tex. Cr. R. 39, 2 S.W.(2d) 863; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99.

The motion is overruled.


author: WALTHALL, J.

text:
    TIPPS v. FULLER CONST. CO.
    No. 2753.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    Rehearing Denied Jan. 12, 1933.
    John J. Pagan, of Dallas, for appellant.
    H. B. Sanders and Knox W. Sherrill, both of Dallas, for appellee.
   WALTHALL, J.

The city of Dallas, Tex., as plaintiff, suing for the use and benefit of the Fuller Construction Company, a corporation, brought this suit against E. W. Phillips and wife, Mrs. E. W. Phillips, George T. Tipps, H. R. Kooser and Jake Tipps, defendants. The suit is based, on a paving certificate of special assessment issued by the city of Dallas, of date 4th day of January, 1927; the certificate was issued toi the Fuller Construction Company and its assigns for the pro rata part of the cost of paving Allen street in the city of Dallas, assessed against defendants E. W. Phillips and George T. Tipps; the certificate conforms to the provisions of article 1090 of the Revised Civil Statutes.

Plaintiff asks judgment for its claim, interest, attorney’s fees, and foreclosure of its assessment lien, and that the proceeds be applied to plaintiff’s claim, and for a deficiency judgment.

The Fuller Construction Company intervened and adopted the allegations of the city’s petition, alleged its ownership of the certificate, claim, and indebtedness, and its right to enforce and collect same.

Without stating the pleadings of the parties more than to say that the issues joined involved the validity of a paving assessment lien on the real property described in the pleadings, and situate on Allen street in the city of Dallas, and the priority of said paving assessment lien over a prior recorded vendor’s lien and deed of trust lien on the same property.

The pertinent facts are undisputed and are substantially as follows:

(1) Defendant Kooser owned a $2,500 note secured by a vendor’s lien and a deed of trust lien on said property, such note and liens are of date July 25, 1923, and were recorded and existed on July 20, 1925. (2) On and prior to July 20, 1925, the property in question belonged to defendant George T. Tipps, encumbered with the above stated $2,500 liens. (3) On July 20, 1925, the city of Dallas in due and regular form, and as provided by its charter, passed a paving resolution ordering the paving of Allen street in the city abutting on the property involved here. (4) On July 1, 1927, the city of Dallas, in due and regular form passed an ordinance levying an assessment of $936.94 against this real estate for paving that portion of Allen street abutting said property, and by the terms of said ordinance fixed a paving lien on said property to secure the assessment, and, in conformity with the Dallas City Charter section 1, article 10, provided that the paving lien should revert back and take effect as of date of the original resolution ordering the paving. (5) On July 20, 1925, George T. Tipps, the then record owner of the property, was a single man and no homestead right on the property existed. (6) Subsequent to the above, the vendor’s lien and the deed of trust lien were foreclosed, and, at the foreclosure sale, Jake Tipps was the purchaser of the real property involved.

The suit as to Kooser was dismissed and judgment entered that the city of Dallas take nothing by its suit. A personal judgment was entered in favor of intervener, Fuller Construction Company, against E. W. Phillips for the amount of the debt sued for, interest, and attorney’s fee, stating same, from which no appeal is prosecuted. Judgment was entered foreclosing the assessment lien on the property as it existed on the 20th day of July, 1925, as to George T. Tipps, E. W. Phillips and wife, and Jake Tipps, for the satisfaction of said judgment. Jake Tipps prosecutes this appeal.

Opinion.

Appellant submits several assignments of error. They present only two matters we think we need to discuss.

Appellant submits, in substance, that the trial court was in error in holding that the resolution passed by the city of Dallas on the 20th day of July, 1925, ordering the improvement of Allen street in the city by paving said street abutting the property in controversy, and the subsequent ordinance of the city of Dallas on July 1, 1927, levying and assessing said property abutting on said street, thereby fixed a paving lien on said property, and that said assessment lien so created and fixed on said property took precedence over and was a prior lien to the vendor’s lien and deed of trust lien theretofore created and in effect prior to said resolution and ordinance. Appellant specially insists that the holding of the trial court was error in view of the fact that, subsequent to said resolution but prior to the ordinance and pri- or to and ati the time of the paving of said street, the property was then the homestead of E. W. Phillips and wife.

The questions presented in the assignments have been fully discussed and decided by the Supreme Court in cases identical with the facts involved here. Claxton v. Brandon et al. (Tex. Sup.) 47 S.W.(2d) 263; Anderson et al. v. Brandon et al. (Tex. Sup.) 47 S.W.(2d) 261; Nalle et al. v. Eaves et al. (Tex. Com. App.) 5 S.W.(2d) 500; Smith Bros., Inc., v. Lucas et al., 26 S.W.(2d) 1055, 1056.

Similar questions were before this court in West Texas Construction Company v. Mrs. Murrell Adams et al., 54 S.W.(2d) 547.

On the question of the priority of the liens, under article 1090, Revised Civil Statutes, the case of Nalle v. Eaves, supra, and L. E. Whitham & Co. v. Gambrell et al. (Tex. Civ. App.) 48 S.W.(2d) 347, we think conclusively settles the question in appellee’s favor.

The case is affirmed.


author: WALKER, C. J.

text:
    TRADERS’ & GENERAL INS. CO. v. HURST et al.
    No. 2307.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 22, 1932.
    Rehearing Denied Dec. 28, 1932.

      H. B. Sanders, of Dallas, for appellant.
    June C. Harris, of Austin, and Anderson & Lewis, of Center, for appellees.
   WALKER, C. J.

This was a suit by appellee, Dr. T. L. Hurst, against defendants, Tenaha Warehouse & Compress Company and Traders’ & General Insurance Company, for the sum of $654, claimed by appellee as doctor’s bill and medical and hospital services rendered by him to Chester Powell. Chester Powell was an-employee of -Tenaha Warehouse & Compress Company and Traders’ & General Insurance Company was its compensation insurance carrier. Powell was-injured on June 30, 1930. The facts of his injury and the nature of his employment at the time of his injury are fully set out in our opinion in Traders’ & General Insurance Company v. Powell, 44 S.W.(2d) 764, to which we refer for a complete statement of the facts on these • issues. After his injury Powell was carried to appellee’s*sanitarium in Center, Shelby county, Tex., .for treatment. Appel-lee predicated his cause of action against the defendants upon an original promise by them to pay him for the services sued for. While he pleaded the employment of Powell by Tenaha Warehouse & Compress Company and that Traders’ & General Insurance Company was the compensation insurer, his cause of action, as pleaded, in no way rested upon the Workmen’s Compensation Act (Vernon's Ann. Civ. St. art. 8306 et seq.), and the issuance and delivery of the compensation insurance policy, but, as just stated-, upon an original independent obligation from the defendants to appellee to pay him for services to be rendered Chester Powell. The answer put in issue the material allegations of the petition. Upon conclusion of the evidence, a verdict was instructed in favor of appel-lee against both defendants for the amount sued for. On this verdict judgment was entered in appellee’s favor against both defendants, and in favor of Tenaha Warehouse & Compress' Company Wei- against Traders’ & General Insurance Company for any amount it might be forced to pay on the judgment Only Traders’ & General Insurance Company has appealed from the judgment.

Opinion.

Good pleading required appellee, as against appellant’s special exception, to plead the name of the agent who represented appellant in the contract sued upon and whether or not the contract was in writing or in parol. But on the facts of the case the error in overruling this exception was immaterial. Under the facts appellant knew at all times the name of the agent appellee dealt with and had him in court, sitting with its counsel as its representative, during the trial, and it was also fully advised that appellee relied upon an oral contract. Appellant was in no way surprised by the development of the facts and was as fully prepared to present its defenses as if the required information had been furnished by the petition.

There is no merit in appellant’s proposition that the extent of its liability was fixed by the provisions of the Workmen’s Compensation Act. Neither this act nor the policy of insurance issued by appellant Traders’ & General Insurance Company was an element of appellee’s cause of action, as pleaded by him, nor did appellant plead or admit its liability under the policy.

The agency of B. F. Blaintz to represent ' appellant in the alleged contract with appellee was established beyond question. Jle was on appellant’s pay roll as its “claim representative” and the Powell Case was duly referred- to him by appellant for investigation. Under instructions from appellant, or, at least, in the due course of his employment, Blaintz went to Center, Tex., where Powell was confined in appellee’s sanitarium, to investigate the claim. At that time appellant had not decided to contest Powell’s claim for compensation. Without relation to the insurance contract between appellant and Tenaha Warehouse & Compress Company, Blaintz contracted with Dr. Hurst to take over the treatment and care of Powell while he was recovering from his injuries, and in making this contract purported to act for appellant. At the same time he arranged with a Houston doctor to go to Center and treat Powell in Dr. Hurst’s sanitarium. Under this contract the Houston doctor went to Center and rendered the required treatment. Maintz testified that he had authority from appellant to make this special contract with the Houston doctor, and there was no evidence contradicting his statement. Under instructions from Maintz, Dr. Hurst made reports from time to time to appellant, which were never repudiated by it. These reports showed on their face the probable length of time that it would be necessary to treat Powell and some of the reports were made long after the expiration of the statutory twenty-eight day period of treatment, as provided by the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. art. 8306, § 7). Maintz was in court as the representative of appellant and sat with its counsel during the trial as a special adviser of appellant’s counsel. We think the facts stated establish the issue of agency as a matter of law.

By its fifth proposition, appellant asserts that an issue of fact was “created as to the necessary grounds for recovery,” and, assuming that appellee’s testimony was not corroborated, the point is made that “it was error for the trial court to direct verdict in favor of the plaintiff, appellee T. L. Hurst.” This proposition is too general to direct our attention to any particular fact issue. But by reference to the argument of counsel for appellant, and to the quotations made by it from the testimony of the witness Maintz under this proposition, we assume that appellant is insisting that the issue of Maintz’ agency -was a controverted fact and the issue should have gone to the jury. It is our conclusion that agency was established as a matter of law.

There is no merit in appellant’s objections to the admission in evidence of the policy of insurance, issued by appellant to Tenaha Warehouse & Compress Company. As the judgment was entered upon an instructed verdict, the introduction of this testimony was immaterial.

If we understand correctly appellant’s sixth proposition, it is to the effect that the court erred in receiving the testimony of Maintz on the issue of his agency for appellant. It was permissible for Maintz to testify as to the facts of his employment by appellant, the nature of his employment, and the extent of the authority exercised by him under his employment.

The record refutes appellant’s contention that the alleged contract was without consideration. Appellant, through its agent Maintz, requested appellee to render the services to Powell, and, on this request, the expenses were incurred by appellee and the services rendered. The facts constitute a valid consideration.

Appellant’s eighth proposition is as follows: “A witness is not permitted to testify as to his judgment, conjecture, opinion or guess unless qualified as an expert upon a subject permitting opinion testimony, and it was error to permit the appellee T. L.Hurst to conjecture on a point subject to prbof in fact.”

Though this proposition is too general to suggest error, yet, by reference to the statement made under the proposition, no error is shown. Appellee was testifying that he made out certain reports on “request” of appellant. Thereupon the following question was asked appellee, and answer given by him:

“Q. How did you get that request — by mail? A. Well,' I judge I got it by mail. I am sure I did, because Maintz did not give it'bo me, and through mail is the only way I could have gotten it — there is no other agent ever been here. I don’t have any recollection of his giving it to me, and filling it out at this date, it undoubtedly came through the mail.
“Mr. Sanders: The defendant moves the answer be stricken on the ground it is speculative and conjectural.
“The Court: Overruled.
“Mr. Sanders: Note our exception.”

This testimony was admissible and not subject to the objections made.

The ninth proposition relates to testimony regarding certain features of the insurance contract. As that contract was no part of appellee’s cause of action, and as the judgment is from an instructed verdict, no error is shown under this proposition.

The tenth proposition is as follows: “This appellant having denied its liability to the appellee T. L. I-Iurst, evidence was relevant and competent to show that the appellant had never admitted liability or had become finally liable in compensation for the alleged injury to the patient who had been treated by the appellee T. L. Hurst, and it was error to refuse the admission of testimony designed to prove same.”

This proposition is too general to suggest error. But by reference to the statement made by appellant under this proposition, no error is shown. It appears that appellant attempted to prove by its attorney, H. B. ganders, that it had denied all liability and was still denying liability in the Powell Case. This testimony was entirely immaterial on the issue of the original contract pleaded by appellee.

The eleventh proposition is as follows: “The value of services must be shown to have been ‘reasonable’, and testimony showing that the claimant considered such services to be charged at a rate which to him was ‘just and fair’ is not in compliance with the rule.”

Appellee’s testimony was clear to the effect that the charges made by him were reasonable. It also appears without controversy that, at the time Maintz requested appellee to treat Powell, the appellee advised him the amount of the charges for hospital services. Appellee’s testimony made out a prima facie case for the amount sued for and no point is made by appellant that the judgment was rendered for an unreasonable amount.

Appellant’s last proposition is to the effect that, ‘though appellee's account was attached to the pleading, it was not introduced in evidence. There is no merit in this contention because appellee testified affirmatively that the account was just, in the sum of $654.

There being no error in the record, the judgment should be affirmed, and it is accordingly so ordered.

Affirmed.


author: HALL, C. J.

text:
    QUANAH, ACME & PACIFIC RY. CO. v. EBLEN et al.
    No. 3845.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1932.
    Rehearing Denied Jan. 4, 1933.

      G. E. Hamilton, of Matador, and C. X. Welch, of Quanah, for appellant.
    Schenck & Triplett and Bledsoe, Crenshaw & Dupree, all of Lubbock, for appellees.
   HALL, C. J.

Appellee Eblen sued the Quanah, Acme & Pacific Railway for damages growing out of the alleged negligence of the defendant railway company which resulted in personal injuries to appellee and the destruction of an automobile track owned by him.

He alleged that on the 7th of July, 1929, he was operating a gas and oil station situated on the east side of Eighth street in Paducah, and upon one of the appellant’s side tracks; that on said day 'he was struck by a freight car while he was driving his truck across Eighth street; that his truck was knocked from the track, practically rained, and he was pinioned under it, resulting in a broken arm and dislocated shoulder. He charges that several box cars were negligently shoved in on the side track and permitted to run wild; ■that the cars were running noiselessly along the track, striking appellee and his truck; that appellant’s employees failed to sound the whistle or ring the hell or give any other warning of the approach of said cars.

He pleads in the alternative that such cars were pushed in on the side track by appellant’s employees; that the cars were being pushed by an engine, and, through the negligence of said employees, he was damaged as alleged.

He also charged that ¡his perilous position was discovered by said employees in time to have stopped the train by the use of proper care on the part of said employees; that appellant knew that the crossing in question was frequently used by the public; that said employees knew that their view of the crossing was obscured from the direction from which the train was approaching and it thereby became their duty to provide a flagman or brakeman on the front end of said box cars or at some place about said crossing, who could see and give signals to the engineer; that there was neither a flagman at the crossing nor any one on the front end of the cars who was able to see any person about to use said crossing. This is charged as negligence, together with the further acts of negligence in failing to sound the whistle or ring the bell; in failing to stop after discovering appellee’s peril; in failing to keep a proper lookout ahead and have control of said loose cars. He further charged that the train was operating at an excessive rate of speed.

He sets out in detail the extent of his injuries, his suffering; that he incurred doctors’ bills, nurse, and hospital fees, etc., which he itemizes. He alleges that he lost much time, had to hire an assistant to conduct his business, and was permanently disabled as a result of the accident and of appellant’s negligence.

The Texas Indemnity Company intervened, alleging that it had issued a workmen’s compensation policy to the Magnolia Petroleum Company, the employer of Eblen, under which Eblen was insured; that by the terms of such policy it was bound to pay and had paid ET> len the total sum of $2,380, together with medical treatment, hospital bills, operations; etc.; and that jt was entitled to recover $500 as attorneys’ fees, and to be reimbursed for all such payments and expenses.

The court awarded the indemnity, company judgment in the sum of $3,832.36 to be deducted from the amount of appellee’s recovery, which was $8,100.

The appellant answered by general demurrer and special exceptions, a general denial, and specially alleged that, if appellee sustained any injuries, they were the result of his own contributory negligence in that he was well acquainted with the crossing, knew •that appellant ran a train through Paducah about the time of day at which the accident occurred, knew that it frequently switched its train, setting out and picking up cars while switching over the crossing where the accident occurx-ed; that its engineer sounded the whistle when the engine started in on the side track and that the bell was rung and kept ringing from that time until after the accident ; that appellee’s oil station was so situated that its warehouse, oil tanks, and fences were so constructed that appellant’s employees could not see and did not know ap-pellee or any one else was in the station grounds as the appellee approached on the side track; that appellee had driven his truck into the station grounds and left it standing on the southwest side of the warehouse; that appellee was in the warehouse drawing a can of oil \at the time appellant’s engine approached a box car standing on the side track a little east from said warehouse; that the engine stopped and coupled head-on to the ear within a few feet of the warehouse while appellee was at work in said warehouse; that the- bell was ringing and there were loud noises made in coupling and that the engine pushed said car ahead westward toward the crossing to get another car beyond the crossing and just as the box car being so pushed was approaching the crossing at a slow rate of speed, appellee suddenly dashed out from behind his warehouse on to the track in front of - the moving car; that he neither stopped, looked, nor listened 'before going on to the track; that as he drove through the gate of his station grounds he was going west and then turned northward to cross the said track and at that moment the engine and box car were pushed southwestward almost in front of appellee and that a casual glance by him toward the north would have discovered the train in time to have avoided the collision; that it was customary and usual for said track to be used by appellant’s freight trains in switching; that appellee knew that fact; that the northwest corner of appellee’s warehouse is within a few feet of the track and therefore cuts off the view of appellant’s engine crew so they could not see a person approaching the track from the direction of the oil station until such person was on or very near the track. Appellant further alleged that its conductor took his position on the north side of the side track just before the coupling was made and 'having looked up and down the street and seeing no one approaching the crossing, signaled the engine crew to come ahead; that in just the next moment appellee dashed out of his station gate and reached the crossing just as the box car did; that as soon as the employees on the engine discovered appellee’s peril, they used every means at their command to stop the engine and avoid the accident and it stopped within a few feet after such discovery.

In response to special issues, the jury found, in substance, as follows: (1) That defendant’s agents and servants operating the train blew the whistle at least eighty rods from the crossing and sufficiently near the same to be reasonably calculated to give warning to persons about to use the crossing; (4) that defendant’s agents and servants operating the train in approaching the crossing rang the bell as they approached and continued to ring the same until the crossing was reached; (7) the said agents and servants in charge of the train failed to keep a proper lookout for Eblen and others about to go upon said crossing ; £8) which failure was negligence on the part of defendant’s agents and servants; and (9) was a proximate cause of the collision and injuries to E'blen; (10) that the engineer failed to exercise ordinary care to use all effective means within his power consistent with the safety of the train and its crew to avoid the collision after he discovered Eblen going on the crossing and after 'he realized Eblen’s danger; (11) which constituted negligence and (12) was a proximate cause of the collision and injury; (13) that $7,500 would reasonably compensate the plaintiff for his injuries; and (14) that $800 was the reasonable market value of the automobile before the collision; and (15) $200 was its reasonable market value afterwards; (16) the jury found that Eblen, in approaching the crossing, failed to stop his truck a safe distance therefrom for the purpose of looking and listening for the approaching train; (17) ’ that he was not guilty of negligence in failing to stop and look and listen; (18) that such negligence was not a proximate cause or a contributing cause to the injury sustained by plaintiff; (19) that Eblen failed to look for .an approaching train as he approached the crossing and within a reasonable distance therefrom; (20) that his failure to look for the train was negligence; (21) and that his negligence was not a proximate cause or a contributing cause of the collision and injury; (22) that Eblen as he approached the crossing failed to listen for an approaching train; (23) which was not negligence; and (24) was not a proximate cause or contributing cause of his injuries.

From a judgment entered in favor of Eblen and based upon the verdict, the railway company appeals.

The court did not err in refusing to instruct a verdict for-the appellant upon the theory that one crossing a railroad at a street intersection who failed to look and listen for an approaching train was guilty of negligence as a matter of law.

The appellant relies upon the case of B. & O. Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. While the federal courts hold that an injured person is guilty of contributory negligence as a matter of law in going upon a public crossing of a railroad track without stopping, looking, and listening, that doctrine has been repudiated in G., H. & S. A. Ry. Co. v. Wells (Tex. Sup.) 50 S.W.(2d) 247, and the reverse of the rule stated in the Goodman 'Case is declared to be the rule in Texas.

The second contention is that the court erred in failing to instruct the jury that each issue should, he answered solely with reference to the truth of such answer and that the jury should not concern itself about finding for or against either party.

Appellant cites no authorities, but Judge Dunklin said, in Stine Oil & Gas Co. v. English (Tex. Civ. App.) 185 S. W. 1009, 1013: “Nor can we say that there was reversible error in the refusal of the defendant’s request for an instruction that the jury should find upon the issues submitted, without reference to their opinions as to the legal rights of the parties. When the jury took the statutory oath required to be administered to them, they must have understood their duty to be as stated in the requested instruction, and it cannot be presumed that they would be inclined to go contrary thereto in the absence of such instruction.”

It is true that Judge Powell, in Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104, 1106, said: “We will say, however, that this practice should be discouraged by the trial courts and the jurors warned, in the absence of mutual agreement of the parties litigant, to refrain from such practices. [A discussion by the jurors with reference to attorneys fees.] It is much better, as a rule, for jurors to get. all of their evidence under the guidance of the court and in the presence of the attorneys for both sides.”

Several of the courts have said that the giving of admonitory instructions by the trial judge is a salutary practice but we have found no case and appellant cites none holding that the failure of the trial judge to give admonitory charges constitutes reversible error and since it does not appear that in answering the issues submitted in this case that the jury was influenced by any other consideration or information than that elicited during the trial, certainly if error, it is harmless. Speer’s Law of Special Issues, § 145.

The next contention is that the court erred in his definition of proximate cause, in failing to state that the negligent act complained of “must be the moving and efficient cause” of the injury complained of.

The definition given by the court is'as follows: “The proximate cause of an injury, as the term ‘proximate cause’ is used in this charge, is meant some negligent act or omission which without the aid or intervention of any new or intervening cause, naturally caused the accident complained of and without which'the injury would have not occurred and to be a proximate cause the act or omission complained of must have been such that a person of ordinary prudence should reasonably have anticipated that the injury complained of or some similar .injury, might result therefrom.”

We think the appellant’s criticism of the definition is without merit. Definitions of proximate cause omitting the element complained of in this case have been approved in Hulen v. Ives (Tex. Civ. App.) 281 S. W. 350; Athens Electric Light & Power Co. v. Tanner (Tex. Civ. App.) 225 S. W. 421; Kirby Lumber Company v. Cunningham (Tex. Civ. App.) 154 S. W. 288; I. & G. N. Ry. Co. v. Schubert (Tex. Civ. App.) 130 S. W. 708; El Paso, etc., Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988; Alice, etc., Telegraph Co. v. Billingsley, 33 Tex. Civ. App. 452, 77 S. W. 255; Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221.

The court, in defining “contributory negligence” stated that it was some act amounting to “a want of ordinary care and prudence.” The appellant insists that the court erred in adding the words “and prudence.” This objection is hypercritical, since prudence and care are synonymous. Standard Dictionary; Century Dictionary.

The fifth and sixth propositions are not briefed as required by the rules.

The next contention is that the court erred in submitting special issue No. 7 to the jury, asking if the defendant’s servants failed to keep a proper lookout for Eblen or other persons who might be about to go upon the track, because the naming of Eblen was calculated to impress the jury with the fact that the defendant owed Eblen some special duty which it did not owe to the public generally. This criticism is also without merit.

Appellant insists that special issue No. 7 as further objectionable because the undisputed evidence shows that such proper lookout was kept by appellant’s servants and employees and because there was no pleading raising the issue;

Appellant is in error in this contention because in the first count of the petition it is alleged that appellant was negligent in failing to have a man on the loose string of cars; that the defendant knew the character of the particular crossing; and that it was frequently used by the public and further knew that from the direction in which they were approaching the crossing the view was obstructed. That hy reason of these facts it was the duty' of defendant to cause a flagman or brakeman to be on the front end of the box car or at some place near the crossing who could see and give signals to the engineer and that no servants took such positions, which was negligence and the proximate cause of the injury. The engineer, being on the right-hand side of the cab, could not see to the left of the crossing. Milam, the brakeman, was on the north side of the engine ■pilot where he could not see the crossing and the defense of a want of proper lookout rests upon the testimony of Estes, the conductor, and of the brakeman. They were contradicted by plaintiff and his witnesses Brownlow, Sassaman, and Davidson, who testified that they did not see any man flagging at the time of the collision and since the testimony shows that the truck traveled seventy-seven feet from the Magnolia station gate to the crossing and Estes testified that he did not see the truck, though he was in a position to do so, the jury was not bound to accept appellant’s testimony. They resolved the conflict in favor of Eblen and we cannot disturb their finding.

The next insistence is that the answer of the jury to the ninth interrogatory that the failure of appellant’s servants to keep a proper lookout was a proximate cause of the collision and injuries, is unsupported by and is contrary to the evidence.

We overrule this contention. The evidence shows that the engine and car approached the crossing where the vision of appellant’s servants of the crossing was obstructed by buildings ; that the servants knew people were using the crossing frequently; that it was very unusual for a freight train .to pass through Paducah on Sunday and the station agent and other witnesses testified they had never known of any switching of cars on the belt track on Sunday; conductor Estes testified that he was expecting people to cross the track at that point; the fireman Marsalis testified that in going down to the crossing he was looking ahead because he did not know but what people might be crossing; was sufficient to warrant the court in submitting the issue.

The tenth proposition is not briefed.

By the eleventh proposition the appellant insists that the court erred in submitting the issue of discovered peril because there was no evidence to raise the issue.

The petition charged that at the time of the accident the train was moving at an excessive rate of speed. This was denied by appellant’s witnesses and there is evidence to the effect that the train could have been stopped in from four to twelve feet; that at the time Eblen’s perilous position was first-discovered and realized by the fireman and engineer, the west or front end of the box car was fifteen or twenty feet from the crossing and that after such discovery the train went a distance of more than thirty feet; that it first struck the truck and knocked it twelve or fourteen feet; that Eblen was not injured by the first impact, but that the train struck the truck again, resulting in the injuries complained of. It is true that the evidence conflicts upon the issue of discovered peril, and, though the jury found that Eblen was guilty of contributory negligence in driving upon the crossing under the circumstances, if the appellant discovered his perilous position in time to have prevented the injury, appel-lee’s right to recover would not be defeated because of his contributory negligence. H. & T. O. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995; T. & N. O. Ry. Co. v. Seay (Tex. Civ. App.) 285 S. W. 923; Southern Pacific Co. v. Walker (Tex. Civ. App.) 171 S. W. 264; Ft. W. & D. C. Ry. Co. v. Houston (Tex. Civ. App.) 185 S. W. 919. It has been held that a finding by the jury that the injured party was guilty of contributory negligence is not, under some circumstances, in conflict with a finding that the defendant’s servants failed to keep a proper lookout. H. E. & W. T. Ry. Co. v. Sherman (Tex. Com. App.) 42 S.W.(2d) 241; St. L., B. & M. Ry. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024; N. T. T. Co. v. Weed (Tex. Com. App.) 300 S. W. 41. Whether there is a conflict depends upon the nature of the particular case and the evidence introduced.

Special issue No. 10 is: “Do you find from a preponderance of the evidence in this case that the engineer in charge of and operating the train in question failed to exercise ordinary care to use all the effective means within his power consistent with the safety of the train and its crew to avoid the collision after he discovered the plaintiff, W. E. Eblen, if .he did, about to go upon the crossing and realized his danger?”

The appellant attacks this issue and the jury’s finding thereon upon several grounds: (1) Because there was no evidence authorizing such an issue; (2) because the court assumes that the engineer did, in fact, discover plaintiff’s peril in time to have avoided the accident without having first submitted an issue whether the engineer did make such discovery; and (3) because the answer is contrary to the evidence and • has no support therein; and, finally, because the issue is followed by a general charge which should not have been given in a case submitted upon special issues.

There is evidence to the effect that the train was moving at from four to six miles per hour immediately preceding the collision and that it could have been stopped by the use of reasonable effort in from four to twelve feet; that when the fireman saw Eb-len approaching the crossing, the west end of the box car was fifteen or twenty feet from the crossing and that after such discovery the train went a distance of more than thirty feet; that it struck the truck first and knocked it twelve or fourteen feet and then struck it again, which caused the injuries. complained of. The evidence does not show where Eblen was when the fireman first discovered him approaching the crossing, but it does show that the fireman immediately called to the engineer to stop, that he was about to run into a truck. The fireman testified that he hallooed to the engineer as soon as he saw that the truck was going on to the crossing. This establishes the fact of the discovery of plaintiff’s danger or, in other words, that he was about to enter a perilous situation. H. & T. C. Ry. Co. v. Finn, 101 Tex. 511, 109 S. W. 918.

As stated in Texas Central Railway Co. v. Dumas (Tex. Civ. App.) 140 S. W. 543, 547: “To discover that a party is about to enter upon the track under such conditions as that he will be run over by the train is as much a discovery of his peril as if he was at said time actually upon the track.”

It is true that the engineer and fireman both testified that they resorted to every means within their power to avoid the collision, but the jury was not bound by this testimony if there were circumstances and other evidence which tended to contradict it and it became an issue of fact for the jury to determine whether the engineer used the required means to avoid the accident after the fireman saw the plaintiff was going into a place of danger and called to the engineer to stop.

After submitting issue No. 10, the court charged the jury as follows: “In connection with this issue No. 10, as explanatory thereof, you are instructed that before you can find for the plaintiff upon the issue of discovered peril submitted to you by the Court, you must find from a preponderance of the evidence that the engineer operating the engine actually discovered the peril of the plaintiff Eblen at such a distance from the track that he could with all means at his command, by the exercise of ordinary care, have prevented the accident and in connection therewith you are further instructed that you cannot find for the plaintiff upon the issue of discovered peril on the ground that the' engineer in the exercise of ordinary care could have discovered .the plaintiff in time to have prevented the accident or that he was negligent in not discovering-the plaintiff sooner, if he did, than he actually did discover him, as the duties of the operators of the engine did not arise until his peril is actually discovered.”

It is insisted that it was error for the court to give this general charge under the circumstances.

This is a general charge and the court erred in giving it. The rule is that under the statute providing for the trial of cases upon special issues, a charge instructing the jury as to the law pertaining to any phase of the case, excepting explanations and definitions allowed by statute, constitutes reversible error.

As said in Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557, that in the trial of a special issue case, if instructions not authorized by the statute are submitted, injury to the objecting party is presumed and the judgment should be reversed unless it clearly appears that no injury resulted to the complaining party. In that ease it is also held that, where a general charge is given in a case submitted upon sp.ecial issues, it is not necessary that the objecting party should point out specifically the prejudicial effect of the charge; it being sufficient to show that the charge is a general one not authorized by statute and that an objection is ■based on that ground alone.

The general charge given in the instant-case violates the rule just stated. Moreover, it is upon the weight of the testimony and is' further objectionable -because it indicates to' the jury the effect of the answer which will be made to the special issue. West Texas Utilities Co. v. Renner (Tex. Com. App.) 55 S.W.(2d) 451, 456.

We deem it unnecessary to consider in detail the remaining propositions. They are in part without merit. Others present matters which will probably not arise upon another trial.

Because the court gave the general charge following special issue No. 10, the judgment is reversed and the cause remanded.

On Motions for Rehearing.

The only point which we think it is necessary to discuss is that raised in the ap-pellees’ motion for rehearing relating to special issue No. 10. The issue is set out in full in the original opinion and submits the question of discovered peril. Immediately following this issue the court charged the jury as follows: “In connection with this issue No. 10, as explanatory thereof, you are instructed that before you can find for the plaintiff upon the issue of discovered peril submitted to you by the Court, you must find from a preponderance of the evidence that the engineer operating the engine actually discovered the peril of the plaintiff Ebl.en at síich á distance from the track that he could, with all means at his command, by the exercise of ordinary care,' have ■ prevented the accident; and in connection, therewith you are further instructed that you cannot find for the plaintiff upon the issue of discovered peril on the ground that the engineer in the exercise of or-, dinary qare could have discovered the plaintiff in time to have prevented the accident or that he was negligent in not discovering plaintiff sooner if he did, than he actually did discover him, as the duties of the operators of the engine did not arise until his peril is actually discovered.”

We held that this was a general charge and think there can be no question about the correctness of that holding.

Appellee calls to our attention the fact that the language quoted is taken verbatim from the case of H. E. & W. T. Ry. Co. v. Sherman, et al. (Tex. Com. App.) 42 S.W.(2d) 241. -We find that this statement is true, but by a careful consideration of the Sherman Case both as reported by the Commission of Appeals and by the Court of Civil Appeals [10 S.W. (2d) 243], we find that this charge was not attacked in either court upon the ground that it was a general charge and upon the further ground that it clearly indicated to the jury what the result of their answers would be. In other words, the charge was not challenged in the Sherman Case as it is here and we are convinced that, if the objections had been made to it in that case that are urged here, the court would have condemned it. The books are full of cases which hold that an explanation or definition which clearly indicates to the jury as to which party will be benefited by a particular answer, is erroneous. A number of these have been cited in Texas Indemnity Ins. Co. v. Davis (Tex. Civ. App.) 32 S.W.(2d) 240. Measured by the rules laid down by the Commission of Appeals in Humble Oil & Refining Co. v. McLean, 280 S. W. 557, 559; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, and numerous other cases, the explanation given by the court which followed special issue No. 10 is clearly a general charge. In the Humble Case, supra, Judge Harvey held thai a general charge is an instruction given by the court to the jury as to the law pertaining to the case or any phase thereof. The charge given in the instant case certainly comes within this definition. Judge Harvey further held that “for a charge to be a general pne, it is not necessary that it be one submitting an issue of fact for determination by the jury, with instruction that if they find such facts to exist to find verdict thereon in favor of one of the parties.” Of course, if the charge instructs the jury as to the law and further tells them that, if they find certain facts to exist that they can or cannot find in favor of one of the parties, it must necessarily be a general charge and the charge under consideration does that very thing. . It begins by saying that “before you can find for the plaintiff” and latér on in the same paragraph says “you are further instructed that you cannot find for. the plaintiff,” etc.

Believing that our original opinion and dis-. position of the case is correct, both motions for rehearing are overruled.