author: MORRISON, Judge. ODOM, Judge DOUGLAS, Judge

text:
    Kenneth GRAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 50419.
    Court of Criminal Appeals of Texas.
    March 31, 1976.

      Bruce Hal Miner, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty., and Clarence R. Daffern, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is involuntary manslaughter under V.T.C.A., Penal Code, Section 19.-05(a)(2); the punishment, four years.

The facts are undisputed and the sufficiency of the evidence is not challenged. The record shows a 13 year old girl was struck by a pickup truck driven by appellant, causing the injuries that resulted in her death.

Appellant’s sole argument on appeal is this conviction is barred by a prior conviction for driving while intoxicated arising out of the same transaction. Appellant has brought forward in the record the information, complaint and judgment of the driving while intoxicated conviction, together with the transcription of the court reporter’s notes of that trial. The record shows the DWI conviction was proven by the same facts and evidence which constitute the proof of operation of a motor vehicle while intoxicated in the instant case. Nonetheless the conviction for involuntary manslaughter is not barred by the prior conviction for driving while intoxicated.

Under our holding in Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, the doctrines of carving and double jeopardy are not applicable to the case at bar. In Curtis the appellant was convicted of aggravated assault under an indictment alleging assault with intent to murder. This Court held the conviction did not bar a subsequent conviction for murder based on the same transaction because at the time of the assault conviction the injured party was alive, thus there was no offense of murder. The State could not at that time have elected to proceed on the more serious crime. The assault and the murder were held not to be “the same offense” within the meaning of the double jeopardy provision, Tex.Const. art. 1, sec. 14, since the murder offense did not exist at the time of the conviction for assault. The subsequent death of the injured party “is not merely a supervening aggravation, but it creates a new crime.” Curtis, supra, at page 88. See also Johnson v. State, 19 Tex.App. 453; Hill v. State, 141 Tex.Cr.R. 169, 149 S.W.2d 93; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, at footnote 7, (1974).

The transcript of the court reporter’s notes of the trial for driving while intoxicated shows the injured party was alive at the time of such trial. It would not have been possible for the State to have proceeded on the involuntary manslaughter charge since that crime was not complete until the injured party’s death. Appellant’s plea of former jeopardy is without merit.

The judgment is affirmed.

ODOM, Judge

(concurring).

I concur in the affirmance of this case, but instead of relying upon Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, as does the majority opinion, I would dispose of the issue in the following manner.

Appellant was convicted of involuntary manslaughter under V.T.C.A. Penal Code, Sec. 19.05(a)(2); punishment was assessed at four years.

The evidence reflects that the deceased, a thirteen year old girl, was walking with a girl friend along Hastings Street in Amarillo at about 8:00 p. m. when a pickup truck driven by appellant struck the deceased and caused the injuries that resulted in her death. It was undisputed that appellant was intoxicated at the time.

Appellant in his only ground of error contends his plea of prior jeopardy, predicated upon a prior conviction for driving while intoxicated, should have been sustained. In support of the special plea, appellant brought forward in the record the information, complaint, and judgment from the driving while intoxicated conviction and the transcription of the court reporter’s notes of that trial. Appellant’s arguments in support of the plea appear to be (1) that driving while intoxicated is a lesser included offense of involuntary manslaughter by operation of a motor vehicle while intoxicated (Sec. 19.05(a)(2), supra); and (2) that the same facts used to support the instant conviction were used to support the prior driving while intoxicated conviction.

Lesser included offenses are now defined by statute in Article 37.09, V.A.C.C.P. See Day v. State, Tex.Cr.App., 532 S.W.2d 302.

Article 37.09(1), supra, provides that an offense is a lesser included offense if:

“it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” (Emphasis added.)

The offense charged is involuntary manslaughter under Sec. 19.05(a)(2), supra. Operation upon a public road or highway cannot be established by proof of the facts required to establish involuntary manslaughter under Sec. 19.05(a)(2), yet that fact must be proven to establish driving while intoxicated. Therefore, driving while intoxicated may not be established by proof of the same or less than all the facts required to establish an offense under Sec. 19.05(a)(2) and cannot be a lesser included offense under Art. 37.09(1).

Article 37.09(1) does not support the conclusion that driving while intoxicated is a lesser included offense of a Sec. 19.05(a)(2) involuntary manslaughter. In fact, Day v. State, supra, foresaw and warned against such an interpretation of that article as would be required to hold that driving while intoxicated is a lesser included offense to the offense here charged. In closing the opinion on rehearing, the Court stated:

“The careful reader will observe that each definition in Art. 37.09 is stated with reference to ‘the offense charged,’ and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. . . ” (Emphasis added.)

The restrictive effect of the word “required” in Art. 37.09(1) cannot be ignored. In applying the test one does not examine what the proof showed in establishing the offense charged; rather one must look to what facts in the proof were required to establish the offense charged. The broader reading of the statute would render any offense incidentally proven in the course of trial a lesser included offense, and authorize its submission to the jury. Such “lesser included offenses” under Art. 37.09(1) would include any offense committed near the time of the offense charged and proven up as “res gestae” of the offense, any offenses committed near the time of arrest and proven up as “res gestae” of the arrest, any extraneous offenses proven in rebuttal on an issue raised by the defense, and any other offense shown incidentally in the course of the trial, because any such offense would have been established by what the proof of the offense charged showed, even though it was not established by the proof of the facts required to establish the offense charged.

Such a broad reading of Art. 37.09(1) is impermissible. Driving while intoxicated is not a lesser included offense of involuntary manslaughter. Neither is it a lesser included offense under the other provisions of Art. 37.09.

Appellant also contends that the same facts used to support the instant conviction were used to support the prior conviction.

The transcription of the court reporter’s notes from the trial on driving while intoxicated, in the record before this Court, reflects:

“MR. BACK: Your Honor, this case originated in an accident whereby Mr. Graves was driving on . . .1 forget what street . . . twelve hundred block of Hastings, ran up over the curb, hit a fourteen-year-old girl in the back with his pick-up, and I believe she is still in the hospital at the time in critical condition. He left that scene, two people and their wives . . . two men and their wives were following him, and they pursued him on down the street . I forget how far, and they found him . he had a wreck there, I believe. Is that right, Mr. .
“OFFICER RENEAU: No, sir.
“MR. BACK: They did not?
“OFFICER RENEAU: They followed him home.
“MR. BACK: Okay, and the officers arrived after that. They have statements putting him behind the driver’s seat when he hit this girl. He had a breath test that registered 0.22. I believe he has been arraigned already for felony leaving of the scene of the accident.
“THE COURT: What other charges did they file, leaving the scene?
“MR. BACK: Yes, sir.
“OFFICER RENEAU: Your Honor, it was failure to stop and render aid and Judge Byrd set a ten thousand dollar bond.
U * * *
“THE COURT: 0.22?
“MR. BACK: Yes, sir. The breath test was given thirty-five minutes after the arrest.”

It is clear from this record that appellant’s conviction for driving while intoxicated was for an offense committed by acts persisting for some time after the completion of the conduct that resulted in the girl’s death and upon which the instant conviction was predicated. Appellant’s contention that this prosecution was barred by the prior driving while intoxicated conviction is therefore without merit.

I therefore concur in the affirmance of this case.

DOUGLAS, Judge

(concurring).

I concur in the result reached and in that part of the opinion by Judge Odom which sets out the facts that appellant drove an automobile while intoxicated and struck the girl causing injuries which resulted in her death. After this he drove while intoxicated at a different time and place. Two separate and distinct offenses were shown.

      . The majority opinion on original submission in Day v. State, also acknowledged the restriction found in Art. 37.09(1):
      “Therefore, the elements of criminal trespass, including ‘notice,’ could be established by proof of the same facts necessary to prove the offense of burglary. The proof of addi

        tional facts would not be necessary, and the requirement of Article 37.09(1), Vernon’s Ann.C.C.P., would be satisfied.”
      Here, the proof of the additional fact of operation upon a public road or highway would be necessary to prove driving while intoxicated and would not be established by proof of the same facts necessary to prove involuntary manslaughter.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Lynn E. WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 52068.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    J. P. Darrouzet, Austin, for appellant.
    Robert 0. Smith, Dist. Atty. and Stephen H. Capelle, Asst. Dist. Atty., Jim Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On April 11, 1974, appellant pleaded guilty to the offense of burglary of a vehicle. Punishment was assessed at five years probated.

The State filed a motion to revoke appellant’s probation on May 15, 1975, alleging that he violated that condition of his probation which required that he “commit no offense against the laws of this or any State or the United States” in that “he committed the offense of theft in that on or about February 1, 1975, in the County of Travis, State of Texas, the defendant with intent to deprive the owner, Thomas P. Spurlock, of property, namely, Diamond Rings, did unlawfully exercise control over property which had a value of more than $200.00 but less than $10,000.”

After a hearing on May 19, 1975, the court entered an order revoking appellant’s probation, finding that appellant had violated his probation, the court’s finding reciting that appellant committed the offense as same was alleged in the motion to revoke.

Appellant contends that the evidence was insufficient to support the court’s finding. In support of this contention appellant urges there was no evidence that appellant knew these rings were stolen.

It is undisputed that appellant was not one of the persons who participated in the theft of diamond rings from Woods’ Jewelry in San Marcos on January 30, 1975. Three individuals, Patricia Smallwood, Robert Powell and David Harvey, were named as the persons who stole the rings. Appellant’s statement, introduced into evidence, reflects that appellant saw Smallwood, Powell and Harvey in Austin on January 31, 1975, at which time Powell showed appellant a diamond ring and asked appellant if he wanted to buy it. Appellant declined, stating that he did not have enough money, but that he would try to sell it for him. Appellant told the others “I’ll take you to Jay Thompson’s house and try to sell the ring.” In route appellant inquired about two rings on Powell’s fingers and Powell told appellant “If I could sell them to go ahead.” Powell told Smallwood to let appellant see the rest of them and “Small-wood pulled out a napkin from her bra, in it was four rings, three small one and one large one.” Thompson was not home and it was agreed that appellant and the others would try to see Thompson at Thompson’s Feed Store on South Congress Avenue the following day. According to plan appellants, Powell, Harvey and Smallwood went to Thompson’s store the next day. According to appellant’s statement Thompson had told him that he and his wife wanted rings. Thompson made an offer of one thousand dollars for the rings to appellant and appellant carried this message to his three companions who were not privy to the offer. They agreed to accept Thompson’s offer and appellant returned to where Thompson was and made a trade with him to sell the rings for $1,250.00. Appellant retained the amount in excess of one thousand dollars.

In Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.) this Court found that the quantum of proof in showing knowledge on the part of the accused that the property over which he exercised control was stolen is no less under V.T.C.A. Penal Code, Sec. 31.03, than it was under Art. 1430, Y.A.P.C. (receiving and concealing stolen property).

In Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.) where the conviction was for receiving and concealing stolen property under Art. 1430, supra, it was noted and explained that possession of recently stolen property is not sufficient to show knowledge that the property was stolen. “It is a circumstance which must be coupled with other significant circumstances to justify an inference of knowledge that the property was stolen.”

The State urges that the court had many reasons to disbelieve appellant’s testimony at the hearing that he was told that the rings were obtained in a trade for marihuana. The State points to the fact that appellant was convicted in the primary offense of burglary of a vehicle and urges from this, “It could be presumed that he had knowledge of the process by which stolen goods are fenced.” The State urges that testimony that appellant associated with the thieves, did not think it was odd for Powell to be willing to sell the rings off his fingers and was not suspicious of Small-wood having her rings in her bra were other significant circumstances.

The State argues that the probation report which the appellant urged the court to consider contained evidence of appellant’s guilt in that the probation officer stated therein “The subject was aware of what he was involved in when the offense was committed.” The State argues that appellant admitted that the rings came from the owner alleged in the motion to revoke when he answered “Yes” to the State’s question “The only thing you are denying is your knowledge of their being stolen, is that right?”

While knowledge that property was stolen may be implied from circumstances, Sears v. State, 106 Tex.Cr.R. 219, 291 S.W. 547, we cannot conclude that the State sustained its burden in proving an essential element of the offense, knowledge on the part of appellant that the rings in question were stolen.

We find that the trial court abused its discretion in revoking appellant’s probation on a ground not supported by the evidence.

The order of revocation is reversed and the cause is remanded.

Opinion approved by the Court.


author: OSBORN, Justice.

text:
    GUERNSEY COMMUNITY FEDERAL CREDIT UNION, Appellant, v. Ramon J. GONZALEZ, Appellee.
    No. 6495.
    Court of Civil Appeals of Texas, El Paso.
    June 16, 1976.
    Rehearing Denied July 14, 1976.

      Joseph A. Morgan, Howard Jefferson Gibbs, El Paso, for appellant.
    Bart Cox, El Paso, Blakeway, Howell & Gronquist, Victor D. Blakeway, Austin, for appellee.
   OPINION

OSBORN, Justice.

This is a malicious prosecution case in which the trial Court awarded damages based upon jury findings. We affirm.

Ramon J. Gonzalez, Appellee, while a resident of Wyoming, purchased a 1966 Chevrolet automobile, which he financed through Guernsey Community Federal Credit Union, Appellant. The loan papers were signed on September 5, 1969. On February 21, 1970, Appellee went to the Appellant’s office to advise the Credit Union of his intention to move back to Texas and to seek permission to take the mortgaged automobile. He testified permission was obtained and he left an El Paso address at the Credit Union office. The employee of the Credit Union from whom he sought permission testified very emphatically that she had no authority to grant permission to remove mortgaged property, that she gave Appellee the names of the members of the Credit Union Board, and that both she and Mr. Green, a Board member, denied Appel-lee’s request. At the time, Appellee had paid one month in advance on his note.

On February 26,1970, the Manager of the Credit Union wrote to Appellee in El Paso advising that it was “ * * * a felony upon conviction, to remove mortgaged property from the state without permission from the lem holder.” Demand was made in the letter for the balance on the loan or return of the collateral. Appellee wrote to the Credit Union on two occasions and received a reply dated April 3, 1970, advising that he had committed a felony and demanding payment in full or return of the collateral to Guernsey, Wyoming, by April 15,1970. On April 13,1970, Appellee delivered possession of the car, keys and inspection certificate to the White Sands Federal Credit Union, near El Paso, which he testified was in keeping with a telephone conversation he had with the Guernsey Credit Union Manager.

Prior to the time that Appellee delivered the car to White Sands, Mr. Glenn Gorman, President of the Credit Union, had contacted the office of the County Attorney in Wyoming concerning this matter, and once it was determined that the car definitely had been taken out of the State, a complaint was prepared and signed by Mr. Gor-man on April 15, 1970. A warrant was issued and Appellee was arrested at work on July 12, 1970. Shortly thereafter, he was released on bond, but was rearrested on July 14, 1970, and extradited to Wyoming on August 16, 1970, following a habeas corpus proceeding in the district court in El Paso in which a writ was denied. Following a preliminary hearing before a justice of the peace on August 24, 1970, Appellee was bound over to the district court for trial and then released on a cash bond. On February 7, 1974, the charges were dismissed on the motion of the County Attorney, who acted at the direction of the District Judge, because of the delay in prosecuting the complaint. See Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

In the trial of this case, the jury (1) failed to find that Mr. Gorman filed the complaint upon the advice of the Assistant County Attorney after a full and fair statement of all facts known to him; (2) found Mr. Gor-man acted without probable cause in filing the criminal complaint; (3) found Mr. Gor-man acted with malice; (4) found Ramon Gonzalez sustained actual damages as a direct and proximate result of having been named in the complaint; (5) found actual damages of $15,000.00; and (6) failed to find that exemplary damages should be assessed.

The Appellant presents six points of error. Point One contends that the trial Court erred in failing to grant its motion for instructed verdict. The Appellant did not file a motion for new trial and the grounds asserted in the motion for instructed verdict have not been preserved for appellate review. Rules 324 and 325, Tex.R. Civ.P.; J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968); O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65, 71 (1974). Point One is overruled.

Point Two asserts that there is no evidence to support the jury finding to special issue number one. The answer to the issue was “No,” a negative finding on an issue where the Appellant had the burden of proof. The “no evidence” point does not raise an issue for review. The negative answer means Appellant failed to convince the jury by a preponderance of the evidence as to the affirmative of the issue. Since evidence is not required to support a negative answer, the fact that there is “no evidence” is immaterial. Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.); Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.); 12 Hous.L.Rev., supra, at 78.

In addition, it should be noted that the issue as submitted was defective because it did not inquire whether or not Mr. Gorman in “good faith” sought the advice of the Assistant County Attorney. See Annot., 10 A.L.R.2d 1215, 1244 (1950). In Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691 (1894), the Court noted that it was essential that one seeking the advice of a county attorney must do so in good faith. In Stein v. Greenebaum, 203 S.W. 809 (Tex.Civ.App.—Galveston 1918, no writ), the Court said “ * * * and the issue of ap-pellee’s good faith, under all the facts, should have gone to the jury.” This Court reiterated the rule in Igoe v. Peinado, 54 S.W.2d 556 (Tex.Civ.App.—El Paso 1932, no writ) when the Court said “ * * * that an adequate defense is shown where one in good faith first made a full, fair, and complete statement to the county attorney * * It is difficult to believe that the jury could have found for the Appellant on the issue of good faith in view of its finding of malice and a lack of probable cause, but since the issue was omitted and the trial Court entered judgment for Appellee, we must presume that any omitted issues were found in favor of the judgment which the trial Court entered. Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963); Grand Leader Dry Goods Company v. Caveness, 424 S.W.2d 270 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ). Point of error number two is overruled.

Point Three asserts that there is no evidence to support the jury finding that Glenn Gorman acted without probable cause in filing the criminal complaint. Under the “no evidence” point, we consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). The trial Court defined probable cause to mean “ * * * the existence of such facts and circumstances as would excite the belief in a person of a reasonable mind, acting on the facts or circumstances within his knowledge, that the person charged by him was guilty of the charge with which he was charged.” According to the testimony of the County Attorney, there are three elements of the offense, namely: (1) removal of mortgaged property, (2) with intent to deprive the mortgagee of the security, and (3) the removal is without the written consent of the mortgagee. Only the second element was in dispute in this case.

Considering only the evidence favorable to the jury finding, it indicates that Mr. Gonzalez did not leave Wyoming until he had informed the Credit Union of his intention and left his new address in El Paso. At that time, he was one month in advance on his note payments. On two occasions he wrote to the Credit Union and he indicated an intention to transfer his account to the White Sands Federal Credit Union. The letter stated that if the Guernsey Federal Credit Union could not wait for the transfer, he would turn the car in to the manager at White Sands. After the letter demanding payment by April 15, he did in fact turn the collateral over to the White Sands Federal Credit Union on April 13th. Certainly this evidence indicates that there was no intent to deprive the mortgagee of its security and that, in view of the telephone call in which Mr. Gonzalez said he was told he could turn the car in at White Sands, he was doing the best he could under the circumstances to see that the security was returned.

In Kempton v. State, 488 P.2d 311 (Wyoming 1971), the Court considered the issue of intent in a criminal case where mortgaged property had been removed from the state and said:

“It can hardly be expected that a defendant in a case of this kind is going to take the witness stand and say he intended to deprive the bank of its security. Therefore, defendant’s intent necessarily has to be inferred from what he does. It is proved not only by what he has done before leaving the state, or at the time of leaving; it is proved largely by what he does after leaving. His future course of action speaks louder than anything else with respect to a previously acquired intent.”

Certainly leaving a new address, corresponding with the Credit Union and subsequently delivering the car to another Credit Union as agreed to in a telephone conversation does not indicate an intent to deprive the mortgagee of possession of its security. We cannot say that there is “no evidence” to support the jury finding. Point of error number three is overruled.

Point of error number four asserts that there is no evidence to support the jury finding that Glenn Gorman acted with malice in filing the criminal complaint. Again, we consider only the evidence and inferences in support of the jury finding. Garza v. Alviar, supra. Mr. Gonzalez testified that when he first contacted the Credit Union office about going back to Texas with the car, the lady at the office “ * * * told me it was all right and she would get in touch with me which they did a week or five days later.” When he wrote about the matter, Mr. Gonzalez never denied the debt or suggested that he would not return the security. He did seek additional time and some forbearance even though he was not yet delinquent. Later, he called the Credit Union Manager and told her he would turn the car in at White Sands, and, according to his testimony, “She said, that’s alMght. We’ll pick it up over there.” At that time, Appellee had made five payments and released the security. Within two days, the complaint was filed.

In discussing the element of the offense of malicious prosecution, Prosser states:

“The defendant’s improper purpose usually is proved by circumstantial evidence. The plaintiff must establish malice in addition to the absence of probable cause; but, since there can be no legitimate purpose in a prosecution unless there is an honest belief in the guilt of the accused, it is generally agreed that the lack of probable cause may give rise to an inference of malice, sufficient to carry the question to the jury.” Prosser, Law of Torts, 4th ed., at 848-849.

In Underwood Typewriter Co. v. Shouldis, 253 S.W. 935 (Tex.Civ.App.—Galveston 1923, no writ), the Court in a malicious prosecution case said:

“ * * * malice may be inferred from circumstances and need not be proved by direct evidence; indeed, in applying this rule, the authorities go to the extent of holding that, ‘in a legal sense, any unlawful act done willfully or purposely to the injury of another is, as against that person, malicious.’ * * * ”

Based upon the favorable evidence and inferences, we cannot say there is no evidence to support the jury answer to special issue number three and the fourth point is overruled.

Appellant complains in Point Five that there is no evidence to support the finding in issue number four that Appellee sustained actual damages, and that such finding is immaterial, and further, in Point Six, that there is no evidence to support the damages as found in issue number five and that that finding is immaterial. Since these are both “no evidence” points, we again consider only the favorable evidence and inferences.

Mr. Gonzalez testified that he was initially arrested at work and jailed over the weekend until bond was made. A month later, he was arrested again and kept in custody for over a month and released only after a preliminary hearing in Wyoming and an $1100.00 cash bond was posted. His family actually paid $960.00 to the Credit Union, plus attorneys’ fees in Texas and Wyoming for the various hearings. Once he was able to return home, he had difficulty finding employment because of his arrest record. His present employer even required him to submit to a polygraph examination. From this testimony, we cannot conclude that there is no evidence to support the jury findings on the actual damage issues. Points Five and Six are overruled.

We conclude that Appellee established his cause of action. J. C. Penney Company v. Gilford, 422 S.W.2d 25 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.). The judgment of the trial Court is affirmed.

ON MOTION FOR REHEARING

The Appellant in its motion for rehearing states that the Court erred in the quote from the letter of the manager of the Credit Union to Appellee, dated February 26, 1970, and suggests that the letter made mention of “written permission.” Counsel apparently has not reviewed that letter recently. Our quote was the exact language used in the letter, and the letter makes no mention whatsoever of “written permission.”

The motion for rehearing also urges that the Court erred in overruling Appellant’s Point One because it was based upon the overruling of his motion for judgment non obstante veredicto. Clearly, such is not the case. Point One from the brief for the Appellant is as follows:

“The trial Court erred as a matter of law in failing to grant Defendant’s Motion for an instructed verdict.”

In the statement under that point on pages 7 through 9 of the brief, there is absolutely no mention of a motion non ob-stante veredicto. In the argument under that point on pages 9 through 16, there is absolutely no mention of a motion for judgment non obstante veredicto. In the argument under Point One, it is noted on page 15 of the brief that at the conclusion of the trial Appellant requested an instructed verdict, which was denied, and on page 16 of the brief, it is submitted that the trial Court erred as a matter of law in not granting Defendant’s motion for an instructed verdict at the conclusion of the testimony in the case. Thus, we believe, that the point and the argument are all directed to the action of the trial Court in overruling a motion for instructed verdict, and as stated in the original opinion, any error in that regard has not been preserved for appellate review.

Even if the point had stated that the trial Court erred in failing to grant Defendant’s motion for judgment non obstante veredicto, rather than stating as it did that there was error in failing to grant Defendant’s motion for instructed verdict, the point still would not have been proper. Such a point is too general and does not specify the specific error complained about on appeal. This exact issue was before the Court in Tindall v. Tacconelly, 328 S.W.2d 909 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.), where Justice Pope writing for the Court said:

“ * * * The single point urged here, which is grounded upon and germane to the order overruling the motion for judgment non obstante veredicto, states: ‘The trial court erred in overruling Defendants’ motion for judgment non obstante veredicto.’ The rule requires a point to refer to the ‘particular error relied upon.’ Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941. In United States Liability Ins. Co. v. Baggett, Tex.Civ.App., 285 S.W.2d 804, 807, the same point was urged and the Court considered it too general saying: ‘If we attempted to write upon the same, we would have to write upon each of the numerous points set out in the motion for judgment non obstante veredicto, and the point would then become multifarious.’ Accord, Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715, 720. * * * ”

To the same effect are the holdings in United States Liability Insurance Company v. Baggett, 285 S.W.2d 804 (Tex.Civ.App.—Texarkana 1955, writ ref’d n. r. e.), and International Security Life Insurance Company v. Robichau, 510 S.W.2d 132 (Tex.Civ.App.—Beaumont 1974, no writ).

We have considered the remainder of the motion for rehearing and find it to be without merit.

Appellant’s motion for rehearing is overruled.


author: CHADICK, Chief Justice.

text:
    Owen L. JONES et al., Appellants, v. James Marvin YOUNG and Jack Jones, Appellees.
    No. 8364.
    Court of Civil Appeals of Texas, Texarkana.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.

      Ben Z. Grant, Kirkpatrick, Grant, Dennis & Reed, Marshall, for appellants.
    William M. Huffman, Hall, Huffman & Palmer, Marshall, for appellees.
   CHADICK, Chief Justice.

This is an action to annul a deed and recover damages for conversion of personal property. A jury was waived, the trial judge denied relief and entered a take nothing judgment.

I

Owen L. Jones and thirty-two (32) other persons alleged to be heirs at law of Rosa V. Black, Deceased, were plaintiffs below and prosecute this appeal as appellants. James Marvin Young and Jack Jones, alleged to be the heirs at law of Eugene H. Jones, Deceased, were defendants below and are appellees here. The plaintiffs’ trial pleadings sought judgment declaring null and cancelling a warranty deed dated March 10, 1969, executed by Rosa V. Black, as grantor, to Eugene H. Jones and James Marvin Young, as grantees, on the ground that the grantor did not have “mental capacity to sign such an instrument and make such a conveyance.” Damages were sought on the grounds that Young and Jones had converted property belonging to the plaintiffs as heirs of Rosa V. Black, Deceased, including certificates of deposit.

II

The substance of the appellants’ first Point of Error is that no effective delivery of the deed in suit was made by Rosa V. Black (hereafter generally referred to as Mrs. Black) to the grantees, Young and Jones. The trial court duly responded to the timely request of appellants’ counsel and filed findings that the deed was executed and delivered by Mrs. Black for the purpose of making a gift to James Marvin Young and Eugene Jones on March 10, 1969, with the intention that the deed and the conveyance made thereby would be effective immediately and that by the execution and delivery of the deed on that date Mrs. Black conveyed to Young and Jones Title to the land described in the deed. No exception was lodged to these findings of fact by the plaintiffs and no point of error challenging sufficiency of the evidence to support a specific finding has been briefed.

At the scrivener’s office, after the deed was executed, Mrs. Black handed it to James Marvin Young and remarked that this “is attended to, this is the end of it”. Mr. Young was advised by the scrivener to immediately record the instrument but Mrs. Black interposed an objection saying, “No, I don’t want it known at this time, don’t want to put it on record”. After discussion, the scrivener wrote by hand, on the top margin of the face of the printed form employed in making the conveyance, this statement: “To be delivered on death of the Grantor”, and Mrs. Black signed her name immediately below. The wife of James Marvin Young testified that Mrs. Black then handed the deed back to her husband. Mrs. Young also testified that her husband carried the deed home with him after the transaction was completed. After the session at the scrivener’s office, Mrs. Black accompanied Mrs. Young and Eugene H. Jones to Hallsville and in the course of conversation said, “Eugene, you and Marvin each have 88 acres now”. James Marvin Young testified at the trial but since admission of his testimony is questioned under another point of error, its content will not be indicated as the issue under consideration may be decided without resorting to it, that is, the trial judge had other evidence before him which supports the findings made.

Delivery of a deed in the conveyance of real property is the subject of many cases cited by the parties. These cases furnish a broad survey of the law in this respect. The appellants cite Younge v. Guilbeau, 70 U.S. [3 Wall.] 636, 18 L.Ed. 262 (1865); Dikes v. Miller, 24 Tex. 417 (1859); Estes v. Reding, 377 S.W.2d 233 (Tex.Civ.App.El Paso 1964, writ ref’d n. r. e.); Johnson v. Freytag, 338 S.W.2d 257 (Tex.Civ.App.Beaumont 1960, writ ref’d n. r. e.); Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823 (1888); National Bond & Mortgage Corporation v. Davis, 60 S.W.2d 429 (Tex.Comm’n App.1933, judgmt. adopted); Kincheloe v. Kincheloe, 152 S.W.2d 851 (Tex.Civ.App.Amarillo 1941, writ ref’d w. o. m.); Sgitcovich v. Sgitcovich, 229 S.W.2d 183 (Tex.Civ.App.Galveston 1950, writ ref’d n. r. e.); Chasteen v. Miller, 349 S.W.2d 772 (Tex.Civ.App.San Antonio 1961, writ ref’d n. r. e.); Neff v. Ulmer, 404 S.W.2d 644 (Tex.Civ.App.Amarillo 1966, writ ref’d n. r. e.); Hayhurst v. Paylor, 293 S.W.2d 531 (Tex.Civ.App.Amarillo 1956, no writ); Harrison v. Craddock, 178 S.W.2d 296 (Tex.Civ.App.Galveston 1944, no writ); and Annot., 87 A.L.R.2d 787 (1968); 19 Tex.Jur.2d Deeds, Sec. 1. Appellees cite Huff v. Crawford, 89 Tex. 214, 34 S.W. 606 (1896); Benavides v. Benavides, 218 S.W. 566 (Tex.Civ.App.San Antonio 1920, writ ref’d); Taylor v. Sanford, 193 S.W. 661 (Tex.1917); Davis v. Bond, 141 S.W.2d 979 (Tex.Civ.App.Texarkana 1940); judgmt. affrm’d, 138 Tex. 206, 158 S.W.2d 297 (1942); Lewis v. Ames, 44 Tex. 319 (1879); Hubbard v. Cox, 76 Tex. 239, 13 S.W. 170 (1890); Earl v. Mundy, 227 S.W. 970 (Tex.Civ.App.El Paso 1921, writ ref’d); McCartney v. McCartney, 93 Tex. 359, 55 S.W. 310 (1900); Thornton v. Rains, 299 S.W.2d 287 (Tex.1957); Hayes v. Pennock, 192 S.W.2d 169 (Tex.Civ.App.Beaumont 1946, writ ref’d n. r. e.); Texas Pacific Coal & Oil Co. v. Bruce, 233 S.W. 535 (Tex.Civ.App.Fort Worth 1921, no writ); Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912); 19 Tex.Jur.2d, Deeds, Sec. 89.

The several aspects of delivery pertinent in this appeal were summed up by the late Justice H. D. Barrow in Chasteen v. Miller, supra, where it is said:

“It is well settled that in order to effect transfer of title to land the deed must be delivered to and accepted by the grantee. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935; Cox v. Payne, 107 Tex. 115, 174 S.W. 817; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570; 14 Tex.Jur. 538, Deeds, § 98. In order to constitute delivery, a deed of conveyance must be placed in the hands of the grantee, or within his control, with the intention that it is to become presently operative as a conveyance. Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841. Without such intention manual delivery to the grantee is insufficient to pass title. Bell v. Rudd, supra; Anderson v. Hutto, Tex.Civ.App., 126 S.W.2d 709; Bibby v. Bibby, Tex.Civ.App., 114 S.W.2d 284.”

In a non-jury case, a trial judge, in the exercise of discretion vested in him, determines the facts proved, the credibility of witnesses and the weight to be given testimony. 1 McDonald, Texas Law of Evidence, Sec. 3; 57 Tex.Jur .2d, Trial, Sec. 572. In this instance, the trial judge accepted as true testimony that the deed was executed and physically handed to the grantees. His findings show that he was satisfied that the deed was handed back to the scrivener after it was executed and handed to one of the grantees and that the notation “To be delivered on death of Grantor” was then endorsed on the instrument and signed by Mrs. Black and the instrument again placed in the hands of a grantee, James Marvin Young. Evidence that Mrs. Black considered the transfer of her land “attended to, this is the end of it”, that the deed was placed in Young’s hands at the time she made the quoted remark and her later statement that the grantees “each have 88 acres now”, supports findings that Mrs. Black intended the deed to be effective immediately. Under the circumstances the trial judge might reasonably conclude that in signing the notation on the deed Mrs. Black did not choose or use the word deliver as a word of art, or as it might be understood in the law of conveyancing, but merely intended that the deed not be tendered for recordation during her lifetime.

Ill

The Marshall National Bank, Marshall, Texas, on October 1,1970, issued Certificate of Deposit No. 4976 which recited that “Mrs. Rosa Jones Black or Eugene Jones has deposited in this bank, not subject to check, Ten Thousand and No/100 Dollars payable at said bank to the order of Mrs. Rosa Jones Black or Eugene Jones upon surrender . . .’’On the same date, the Bank issued Certificate No. 4977 similar in all respects except that it recited “Mrs. Rosa Jones Black or Marvin Young” made the deposit and that it was payable to “Mrs. Rosa Jones Black or Marvin Young”.

Three days after Mrs. Black’s death, that is, on June 25, 1971, Eugene H. Jones withdrew all funds payable by the terms of Certificate No. 4976 and James Marvin Young withdrew all funds payable under the terms of Certificate No. 4977. Eugene H. Jones died intestate after the death of Mrs. Black. The trial court found that Eugene H. Jones “was survived by his wife and a son, the defendant Jack Jones, who were his sole heirs at law”. This action for conversion was filed October 4, 1973. Young and Jones interposed as one of several defenses the two year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526, wherein it is said that suits for detaining the property of another and for converting such property to ones own use shall be commenced and prosecuted within two years after a cause of action shall have accrued and not afterwards.

The record manifests that suit was barred by Article 5526 unless the limitation it prescribes was rendered inapplicable by Tex.Rev.Civ.Stat.Ann. art. 5538, as argued by appellants. Article 5538 provides that at the death of a person against whom or in whose favor there may be a cause of action, limitation shall cease to run against such cause of action until twelve months after the person’s death, unless an administrator or executor of the decedent’s estate shall have sooner qualified according to law, in which case limitations shall only cease to run until the time of qualification. By clear expression Article 5538 applies to causes of action existing when death occurs. Lemp Brewing Co. v. LaRose, 20 Tex.Civ.App. 575, 50 S.W. 460 (1899). The conversion pled did not occur during the lifetime of Mrs. Black, and no claim is made that Mrs. Black asserted or could have asserted the cause of action here prosecuted at any time before her death. Appellants’ pleadings and proof were designed to recover damages for property belonging to appellants which they inherited from Mrs. Black. Lemp Brewing Co. v. LaRose, supra, gives a clear statement of the purpose and application of the present article when it was Article 3368 prior to the current revision of the statutes, to-wit:

“Both pleadings and evidence showed that LaRose died August 22, 1895, and that the conversion took place within a day or two thereafter. The statute (article 3368, Rev.St.), which, upon the death of a person in whose favor a cause of action exists, suspends limitation against the same for a year after such death, or until the qualification of a legal representative, does not apply. That statute has application to causes of action existing when the death occurs. It makes no provision as to the limitation against causes of action which may arise after death in favor of those who succeed to the rights of the decedent.” 50 S.W. 460, 461.

IV

The trial court did not commit reversible error in connection with the points discussed. Other points briefed by the appellants are rendered immaterial by these con-elusions and will not be discussed as disposition thereof would not change the result of the appeal. The judgment of the trial court must be affirmed.

IT IS SO ORDERED.

ON MOTION FOR REHEARING

The appellants’ motion for rehearing earnestly insists that the record does not contain evidence to show the statute of limitations commenced to run as held in the Court’s opinion herein. The opinion did not go into this question in detail. Additional discussion is justified.

The trial court found as a fact that funds payable pursuant to the certificates of deposit mentioned in the opinion were withdrawn by Young and Jones on June 25, 1971, and that appellants’ suit for recovery thereof was instituted October 4,1973. The trial judge also reached the legal conclusion that an action for recovery of proceeds from the certificates of deposit was barred by the two-year statute of limitations, Tex. Rev.Civ.Stat.Ann., art. 5526.

Endorsed on the certificate to Mrs. Black and Eugene Jones is a statement, “This certificate being cashed June 25, 1971, to pay the funeral expenses of Mrs. Rosa Jones Black.” Underneath is the signature “Eugene Jones.” An endorsement, identical in meaning, and the signature “Marvin Young” appears upon the certificate of deposit issued to Mrs. Black and Marvin Young. Mr. Young and his wife, as witnesses, testified some of the proceeds of these certificates were used in payment of the expenses and debts of Mrs. Black’s estate.

Endorsements on the certificate, other evidence that some of the proceeds were used to pay debts of the estate, together with the assumption that these certificates or proceeds therefrom belonged to Mrs. Black’s estate, form the basis of appellants’ argument that:

“If the funds were withdrawn for this purpose, as the records clearly indicate, and if some of the funds were used for the' purpose of payment of the debts (which the Appellants do not dispute), then it seems apparent that the Appellees did withdraw the funds for the use of clearing up the debts of the estate; therefore, the statute of limitations would not begin running at the time of such withdrawal. The question of conversion comes into play after all of the debts had been paid, and the Appellees at that point did not account to the other heirs for the sums remaining. It would have been at that point in time that the Appellees clearly appropriated and converted the funds as their own instead of distributing them to the heirs at law. There was no showing that the Appellees knew the full extent of the debts of the estate at the time of withdrawing the funds, and therefore no intent was shown to convert the remainder of the funds, inasmuch as it was not clear that there would be any remainder after the payment of the debts.”

Mrs. Black was not blood kin to either Young or Jones; Mr. Young’s mother was a first cousin of Mrs. Black’s husband. There is no suggestion that either Young or Jones qualified as temporary administrator of Mrs. Black’s estate or attempted to do so or were in any manner authorized by constituted authority to act as the legal representative of Mrs. Black’s estate. When the widow or widower, as the case may be, of a decedent or the decedent’s surviving next of kin make no arrangements to dispose of the decedent’s remains, the reasonable expense of interment suitable to the estate of the decedent, may lawfully be incurred by a stranger and such expense recovered from the decedent’s estate. See Wright v. Harned, 163 S.W. 685 (Tex.Civ.App.Galveston 1914, no writ); Johnson v. Weed, 52 S.W.2d 917 (Tex.Civ.App.Austin 1932, no writ); Texas Probate Code, art. 322; Woodward and Smith, Probate and Decedents’ Estates, Sec. 941. No authority is found in statutory or case law for a volunteer or an interloper to take charge of a decedent’s estate and pay funeral expenses and other estate indebtedness and to such extent administer the estate independent of the probate court.

A useful definition of conversion, applicable in this case, is found in 14 Tex. Jur.2d, Conversion, Sec. 1, where it is said:

“Conversion is the unlawful and wrongful exercise of dominion, ownership or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner, either permanently or for an indefinite time.”

If the certificates and the proceeds belonged to Mrs. Black’s estate, as the appellants plead, disposal of these assets in the unauthorized manner shown amounts to conversion. Young and Jones took control, exercised dominion and ownership over the certificates and proceeds therefrom to the exclusion of the exercise of the same rights by the legal representative of Mrs. Black’s estate or her heirs at law.

A right of action accrues, as a general rule, whenever facts come into existence which give rise to a cause of action. Condor Petroleum Co. v. Greene, 164 S.W.2d 713 (Tex.Civ.App.1942, writ ref’d). The facts here clearly show that a cause of action accrued when Young and Jones cashed the certificates, if the certificates belonged to Mrs. Black’s estate as alleged. Under these facts, the trial judge had ample grounds for his conclusion that appellants’ suit against Young and Jones was barred by the two year statute of limitations.

Commencement of limitation period was not tolled by reason of a fiduciary relationship existing between the appellants and appellees. No such relationship existed pri- or to the alleged conversion. Appellants contend to the contrary and rely upon State v. Jones, 315 S.W.2d 435 (Tex.Civ.App.Dallas 1958, writ ref’d n. r. e.). In the cited case, an uncle acting under a power of attorney from a nephew authorizing him to handle a joint bank account made withdrawals of the nephew’s funds. The court held that the statute of limitations did not commence to run until the nephew knew or should have known of the wrongful withdrawals. The case is distinguishable from this appeal on the facts.

For the reasons discussed, this Court declines to recede from its original disposition of this appeal. Appellants’ Motion for Rehearing is overruled.


author: BISSETT, Justice.

text:
    Carole Vinyard WARREN and Robert S. Vinyard Independent Executors of the Estate of B. L. Vinyard, Deceased, Appellants, v. Alice Joyce DAVIS, Individually and a/n/f of Robin Davis, et al., minors, Appellees.
    No. 1081.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 30, 1976.
    Rehearing Denied Aug. 30, 1976.

      Don Karotkin, Wyckoff, Eikenburg, Dunn & Frazier, Houston, for appellants.
    Gerald H. Buttrill, Miller, Gann & Per-due, Houston, for appellees.
   OPINION

BISSETT, Justice.

This is a venue case. The plaintiffs attempt to hold venue in Matagorda County, Texas under the provisions of Subdivision 9a of Tex.Rev.Stat.Ann. art. 1995. On July 19,1971, Alice Joyce Davis, Individually and as next friend for Robin Davis, Robert Davis, Jr. and Sibyl Davis, her minor children, brought an action against B. L. Vinyard to recover damages for the wrongful death of Robert Taylor Davis, her husband and the father of the children. Davis was killed on April 9, 1971 when a bull owned by B. L. Vinyard allegedly ran into and collided with an automobile in which he was riding. The collision occurred on Farm-to-Market Road 457 in Matagorda County, Texas. B. L. Vinyard, the defendant, filed a plea of privilege to be sued in Wharton County, Texas, where he was domiciled. The plea was controverted. Prior to a hearing thereon, B. L. Vinyard died, and Carole Vinyard Warren and Robert S. Vinyard, Independent Executors of his Estate, were substituted as defendants.

Following a hearing before the court, the plea of privilege was overruled. The substituted defendants have perfected an appeal to this Court. We affirm.

The appellants, in a single point of error, complain:

“The trial court erred in overruling defendant’s plea of privilege when there was no evidence of negligence.”

Plaintiffs alleged: that the occurrence in question took place on a public road in Matagorda County, Texas; that the damages sustained by them were proximately caused by the negligence of defendant “in failing to keep said bull properly fenced and restrained and in causing and permitting him to roam at large in Matagorda County, Texas, in direct violation of both the laws of this State and the Stock Law of Mata-gorda County, Texas”; and, alternatively, “that this occurrence is of such character that it would not ordinarily occur in the absence of negligence and that the instru-mentalities causing said Robert Taylor Davis’ death were under the management and control of the defendant”.

Since no findings of fact or conclusion of law are either requested or filed, if there is any probative evidence to support the judgment of the trial court and the implied findings of fact incident thereto, it is the duty of an Appellate Court to consider only the evidence most favorable in support of the judgment, to indulge all reasonable inferences in favor thereof, and to disregard entirely the evidence which is opposed to the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Loyd W. Richardson Construction Company v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, no writ). The judgment of the trial court, under the record here presented, must be affirmed if it can be upheld upon any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). Absent findings of fact and conclusions of law, it must be presumed that the trial court resolved all disputed fact issues in favor of its judgment. Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950).

The evidence consists of: 1) the depositions of Alice Joyce Davis, E. C. Hammons and C. H. Parks; 2) a stipulation that a stock law was in force in Matagorda County on the date of the occurrence; 3) certified copies of certain documents on file in the office of the County Clerk of Matagorda County relating to the stock law. Since we hold that there was evidence of common law negligence, we do not discuss the issues of either negligence per se, or negligence under the doctrine of res ipsa loquitur.

It is undisputed that the occurrence in question took place in Matagorda County, Texas. On April 9, 1971, Robert Taylor Davis and his family were proceeding in an automobile along Farm-to-Market Road 457, (FM 457), in Matagorda County, when, at about 11:30 p. m., their car was struck by a bull that was owned by B. L. Vinyard. Davis suffered a fatal injury as a result thereof. Vinyard, who lived in Wharton County, owned a 3,000 acre ranch in Mata-gorda County, which was located near the place where the accident happened. He went to the ranch about six days a week, where he would spend from thirty minutes to the entire day, depending upon conditions then existing. At the time of the collision, Vinyard was also developing a residential subdivision near the scene of the accident.

The Vinyard Ranch was divided into several pastures. The bull that collided with the .automobile was kept in a pasture that had a boundary fence a few hundred feet distant from FM 457. This pasture was enclosed by a very substantial and sturdy fence that had seven strands of barbed wire on the side closest to FM 457. There were several gates in the fence. The gates were padlocked and were kept closed and locked at all times. The only persons who had keys to the padlocks were Vinyard and his two employees, E. C. Hammons and C. H. Parks, part time ranch-hands.

Hammons worked and doctored the cattle whenever the need arose. He did not live on the ranch and was there at infrequent intervals. He worked on a total of about forty days each year, tending the cattle. He went to the ranch only when Vinyard called him.

Parks was on the ranch practically every day. He checked the fences almost daily. On the morning of April 10, 1971, he received a telephone call from Vinyard, who told him what had happened. He went to the scene of the accident, where he was told: “the man run into a bull.” He found a bull, which he said was owned by Vin-yard, on the side of the road. The bull was dead. He arrived there at about 7:00 a. m. He testified that the bull had been kept in the Vinyard pasture nearest FM 457, and that the last time he had seen it was about 8:30 a. m. on April 8,1971. The bull was in the pasture at that time.

Parks made a personal investigation of the fence which enclosed the pasture where the bull was kept during the morning of April 10, 1971, immediately after he disposed of the animal carcass. All fence posts were upright and in place; the several strands of barbed wire that made up the fence were intact; and all gates were found to be closed and locked. It is undisputed that although the bull could have gotten out of the pasture by crawling under or breaking through the fence, nothing was found which indicated that he did get out in either of those ways. Parks said that he was too big, heavy, and short-legged to jump over the fence, and had he crawled under or broke through the fence he would have left tell-tale signs, such as tracks, scrape marks, hair on the wire, broken wires, loose staples in the fence posts, et cetera. He did not find any such signs.

Even though there is no direct evidence that B. L. Vinyard, Hammonds or Parks, committed any act of common law negligence, either active or passive, in Mat-agorda County, proof of acts constituting negligence may be made by circumstantial evidence. Tijerina v. Nerio, 497 S.W.2d 72 (Tex.Civ.App.—Corpus Christi 1973, no writ); Southland Supply Company v. Gebhart, 439 S.W.2d 393 (Tex.Civ.App.—Texarkana 1969, no writ); Big Three Welding Equipment Company v. Reeh, 301 S.W.2d 504 (Tex.Civ.App.—San Antonio 1957, no writ); Williams v. Rearick, 218 S.W.2d 225 (Tex.Civ.App.—Amarillo 1949, no writ).

The evidence conclusively shows that the perimeter fence of the pasture, which was in place both before and after the happening of the occurrence in question, was sufficient to retain the bull that was kept in the pasture. It is further conclusively established that the bull did not break through or crawl under the circumscribing fence, and that his size and short legs made it physically impossible for him to have jumped over the fence. Therefore, the only way that the bull could have escaped would have been for someone to have opened a gate in the pasture fence. The only persons who had keys to the padlocks on the gates were, as already stated, Vin-yard, Hammons and Parks. Under the circumstances here presented, an inference can be drawn that only Vinyard, Hammons, or Parks, could have unlocked a padlock and opened a gate, which, if done, would have provided a means for the bull to escape the enclosure.

We hold that the evidence will support implied findings of facts which constitute common law negligence that proximately caused the death of Davis.

This case is distinguishable on the facts from Keyser v. Lackey, 523 S.W.2d 295 (Tex.Civ.App.—Corpus Christi 1975, no writ), where the cattle escaped the enclosure because someone, whose identity was not established, opened a wire gap in the fence and left it open. There, the gap, which was not locked, could have been opened by anyone. In the instant case, the gates were padlocked and could be opened only by someone who had a key to the locks. Here, there are no facts in evidence from which it can be inferred that anyone except Vinyard, Hammons and Parks had keys to the padlocks.

The appellees have shown actionable negligence against the appellants so as to maintain venue in Matagorda County, Texas, under Subdivision 9a of the venue statute. Appellants’ point is overruled.

The judgment of the trial court is AFFIRMED.


text:
    The HOUSING AUTHORITY OF the CITY OF HARLINGEN, Texas, Appellant, v. STATE of Texas ex rel. Olivia VELASQUEZ and Francisca Jimenez, Appellees.
    No. 1078.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 30, 1976.
    Rehearing Denied Aug. 30, 1976.

      Gordon L. Briscoe, Harlingen, for appellant.
    James A. Herrmann, Harlingen, for ap-pellee.
   OPINION

BISSETT, Justice.

This is an action by Olivia Velasquez and Francisca Jimenez, occupants of a low income housing project, challenging the legality of certain expenditures by the Commissioners of the Housing Authority of the City of Harlingen.

Trial was to the court, a jury having been waived. The judgment that was rendered, in part, provided:

“It is further ORDERED, ADJUDGED, AND DECREED that the defendant Housing Authority of the City of Harlingen, Texas, and the Commissioners thereof, be, and they are hereby permanently enjoined from paying to said Commissioners any fixed sum as reimbursement for expenses incurred by them in the discharge of their duties, providing, however, that said Commissioners shall be entitled to receive, periodically, and upon appropriate documented claim, all necessary expenses incurred by them in the discharge of their duties.”

The Housing Authority of the City of Har-lingen, Texas, hereinafter referred to as “Housing Authority” has duly appealed that judgment.

The Housing Authority was organized in 1948 and has operated since as an independent public body pursuant to Tex.Rev.Civ. Stat.Ann. Art. 1269k, commonly referred to as the “Housing Authorities Law”. At the time the present suit was instituted, the Housing Authority, a non-profit body, owned and operated several low-rental public housing units for use by qualified low income persons in the Harlingen area. The funds utilized by the Housing Authority were received under federal grants from the Department of Housing and Urban Development, the issuance of notes and bonds, and from rental income.

In 1952, the Housing Authority passed a resolution authorizing payment of $50.00 per month to each Commissioner as reimbursement for expenses incurred in the performance of their duties. Such payments were regularly made thereafter.

Olivia Velasquez and Francisca Jimenez, plaintiffs in the trial court, who were residing as tenants in the Housing Authority’s units, then brought this action, contending that the payments of $50.00 per month to each Commissioner were not authorized by the statute. They specifically challenged the Housing Authority’s right to make a lump sum expense payment each month in lieu of itemized accounts detailing the incurred expenses. They, in effect, argued that such payments were stipends paid in violation of § 5 of Art. 1269k of the Housing Authorities Law, and, in addition to other relief, asked that the court enjoin future similar payments.

Art. 1269k § 5, in part, provides:

“A commissioner shall receive no compensation for his services, but he shall be entitled to the necessary expense, including traveling expenses, incurred in the discharge of his duties.”

The trial court, in the judgment, found that the plaintiff tenants “have the requisite standing to bring this action”. In addition, the trial court also made other findings of fact, wherein, insofar as this appeal is concerned, it was found:

“The Court is satisfied that the Plaintiffs have the requisite standing to seek relief in this action.”
* * * * * *
“The evidence showed, and the Court finds as a fact, that the $50.00-per-month payment to the Commissioners was and is an arbitrary sum and no rationale exists for the amount when related to actual expenses of the Commissioners.”

The trial court, in its conclusions of law, stated:

“The conclusion is inescapable that the $50.00 monthly stipend bears no rational nor reasonable relationship to that permitted by the statute: ‘necessary expenses, including travel expenses, incurred in the discharge of duties.’ The Court must, therefore, conclude that such payment is prohibited by statute.
The payment of any fixed amount to Commissioners will be enjoined, but a periodic payment to the Commissioners of all reasonable and necessary expenses actually incurred by them in the discharge of their duties upon itemized claim and appropriate documentation will be permitted.”

When specific findings of fact and conclusions of law are filed, or are stated in the judgment and no additional findings are requested, and a statement of facts is also brought forward, the findings will be sustained if there is any evidence to support them. Cortez v. Corsi, 513 S.W.2d 648 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); 4 McDonald Texas Civil Practice § 16.10(b) (1971).

The Housing Authority, in its first point of error, contends that the trial court erred in failing to dismiss plaintiffs’ suit because, as a matter of law, plaintiffs, as tenants of the Housing Authority, do not have standing to maintain this action to enjoin the Housing Authority from paying an expense allowance to each Commissioner of $50.00 per month.

It is a fundamental rule of law that without a breach of a legal right belonging to the plaintiff, no cause of action arises or can accrue to his benefit. American Nat. Ins. Co. v. Hicks, 35 S.W.2d 128 (Tex.Com.App.1931, judgment adopted). For a person to maintain a court action, he must show that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. City of Waco v. Akard, 252 S.W.2d 496 (Tex.Civ.App.—Waco 1952, writ ref’d n.r. e.); Hollar v. Jowers, 310 S.W.2d 721 (Tex.Civ.App.—Eastland, 1958, writ ref’d n.r.e.).

The issue of standing to sue has been the subject of much discussion. As a general rule, in addition to those situations where the plaintiff is expressly authorized by statute or ordinance to bring a suit against public officials whose acts or omissions are attacked, a person has standing to sue, if: 1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; 2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; 3) he has a personal stake in the controversy; 4) the challenged action has caused the plaintiff some injury in fact, either economic, ethic, recreational, environmental, or otherwise; or 5) he is an appropriate party to assert the public’s interest in the matter, as well as his own interest. See Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940); Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The Housing Authority says that while the right of a citizen to restrain acts of public officials is in some instances granted by statute, or ordinance, that in the absence of such a statute or ordinance, a private individual must possess something more than a common concern for obedience to the law before he will be permitted to maintain an injunction suit against public officials, and that a private person who wishes to restrain an official act by a public official is required to prove injury to himself different in character and form from that sustained by the public generally. It contends in this case that there is no showing by plaintiffs of a personal or protecta-ble justiciable interest in the challenged expenditures. It argues that since the payments to the Commissioners were made out of the “Farm Labor Center Account”, a collection of cash and certificates of deposit which had been acquired and accumulated by the Housing Authority over the years independent of any federal aid, and without the use of public funds raised by taxation, that the plaintiffs are not entitled to question the legality of payments from such fund. We do not agree. The source of the money paid to the Commissioners by way of a fixed allowance for reimbursement of “necessary expenses” is not controlling on the issue of standing of plaintiffs to challenge such payments as being unauthorized by law. The fund was public money. It was not a private fund for use by the Commissioners as they saw fit in their sole discretion.

Plaintiffs contend that they have been personally injured in a tangible way by the past payments of the expense allowances in question, and that they will benefit personally in a tangible way from the permanent injunction that was granted by the trial court in the judgment. They say that the amounts of money paid to the Commissioners by way of a fixed allowance, which amounted to some $68,000.00 over the years, if such payments are, in fact, over and above the actual expenses reasonably incurred, that the excess would have been available for expenditure on the physical units themselves, or by the reduction of rents. They claim that they, as tenants, stand to benefit directly and materially in a monetary way, either by a reduction of rents (small though it may be), or by the improvement of living conditions in the housing projects, if the expenditures which are attacked are determined to be unauthorized. For those reasons, they argue that they do have standing to complain because the payments, if unauthorized, have caused economic injury to them. We agree.

The situation herein presented can be compared by analogy to a landlord-tenant relationship. Plaintiffs, as rent paying individuals, are tenants living in a low income housing project operated and maintained for their benefit by the Housing Authority, acting as landlord. By being the intended beneficiaries of the Housing Authority Law, as recognized in § 2 of Art. 1269k, plaintiffs stood to benefit from the expenditure of any funds from any sources which are available for use by the Housing Authority in connection with maintaining the dwelling units being occupied by them as tenants.

As brought out in the record, the particular housing units where plaintiffs lived, suffered from partial disrepair and insect problems. There was testimony that the Housing Authority was unable to provide for extermination of vermin because of the exorbitant costs involved. It was also established by the evidence that the tenants, all of whom were required to meet requisite low-income levels before being allowed to move in, had the joint responsibility to mow the yard and the upkeep of the surrounding premises, as well as the responsibility to make certain repairs inside their respective dwelling unit. While this Court is aware of some of the problems and costs accompanying the operation of a public housing project, we take notice of the legislative purpose in providing such a project. Art. 1269k, § 9, in part, states:

“It is hereby declared to be the policy of this State that each housing authority shall manage and operate its housing projects in an efficient manner so as to enable it to fix the rentals for dwelling accommodations at the lowest possible rates consistent with its providing decent, safe, and sanitary dwelling accommodations, and that no housing authority shall construct or operate any such project for profit, or as a source of revenue to the city. ...”

If the payment of a flat $50.00 per month allowance to each Commissioner in fact was more than the amount of the necessary expenses incurred by him in the discharge of his duties, then it is inescapable that funds were directed away from the cost of management or operation of the housing project, and such necessarily increased such costs to the tenants thereof, contra to the stated purposes of the Housing Authority Law.

Other than the direct monetary benefit which would accrue to the plaintiffs and other tenants of the Housing Authority, there is owed to them a duty by the Housing Authority, acting by and through its Commissioners, to manage and operate the housing project in a manner which is consistent with the dictates of the statute. Under that duty, the Commissioners, as public officials, are required to expend the Housing Authority’s funds, public money, in a manner which will benefit the public generally, and the plaintiffs in particular. The public has an interest in whether the Commissioners of a Housing Authority, such as the one here involved, comply with statutory requirements. The Housing Authority may sue and be sued. Art. 1269k, § 8(a).

If plaintiffs are denied the right to bring and maintain this action, in effect, all tenants in a public housing project that is constructed, managed and operated under the Housing Authorities Law, will be denied the right to complain about the asserted unauthorized expenditures by the Housing Authority, even though such expenditures will result in an increased cost of living in the housing project. To allow a landlord who is acting in a fiduciary relationship of trust, who is charged with the duty of expending money to the best benefit of the tenants, to escape a tenant’s complaint concerning allegedly unauthorized expenditures would be the equivalent of the sanctioning of landlord immunity from unauthorized expenditures. This, we refuse to do. Plaintiffs have standing to complain about the alleged unauthorized acts of the Commissioners, and may seek relief in the courts to protect their interest and that of the general public. The first point of error is overruled.

The Housing Authority, in its second point of error, complains that the trial court erred in enjoining the payment of $50.00 per month to each Commissioner as an expense allowance, because: 1) it may lawfully pay its Commissioners a reasonable expense allowance; and 2) as a matter of law, it did not abuse its discretion in paying such sums of money to each Commissioner as an expense allowance. The finding by the trial court that the payment of the fixed sums of $50.00 per month to each Commissioner as an expense allowance was arbitrary and unreasonable is attacked in the third and fourth points of error on the grounds of “no evidence” and “so against the overwhelming weight and preponderance of the evidence adduced at the trial as to be clearly wrong”.

The record shows that the $50.00 allowance was listed on the Housing Authority’s Farm Labor Center Account Balance Sheets as “Commissioners travel allowance”. Under the auditor’s comments accompanying one of the annual audits the following comment appeared:

“The Commissioners of the Housing Authority of the City of Harlingen are being paid $50.00 per month each as a car expense allowance.”

The record discloses that the only expense incurred by the Commissioners was for travel to and from the projects for the purpose of attending monthly meetings. One of the Commissioners testified: “We never traveled outside the City of Harlin-gen and that the drive to the projects entailed traveling no more than “two to three miles”, and that the $50.00 monthly allowance was paid “whether he attended the meeting or not.” Another Commissioner stated that the $50.00 expense allowance included some travel expenses but when he was asked, what his other expenses might be he said that “he was not prepared to tell that.” The record fails to disclose any additional evidence by the other Commissioners as to the type or amount of expenses incurred.

While we have found no Texas cases that speak directly to the question here presented, there are cases in other states which have dealt with the issue of reimbursement of expenses to public officials generally.

The right to an expense allowance paid to a public officer was attacked in the case of Schnanke v. Mendor, 250 Iowa 303, 93 N.W.2d 749 (1958). The Court said:

“. . But he is allowed only the actual expense; any excess over the actual cost is an increase in compensation, a ‘change in emoluments’ . . . .”
“. . . There is no way of determining what portion of the lump sum allowances is for automobile expense, much less how many miles were actually traveled or what was the charge per mile; and, as has been pointed out, it is further apparent that some part of the amounts are for donations, meals not directly connected with or required by official duties, and other items not properly allowable as official expenses.”

In McWhorter v. City of Richmond, 514 S.W.2d 678 (Ky.1974) the court was concerned with the allowance of expenses for the City’s Mayor. While no ordinance was ever adopted by the City allowing such expenses, the court nevertheless stated:

“. . . even if the expenses are fixed in advance ‘. . . the officer still will be required to submit a detailed account of the expenses, with adequate supporting data, in order to obtain credit.’ ”

The question of whether a claim for reimbursement of automobile expense by a public official should be allowed without a showing of actual expenses incurred was presented in Funk v. Milliken, 317 S.W.2d 499 (Ky.1958). The Court held:

“. . . a claim for automobile expense should not be allowed without a showing of the purpose and official necessity of each trip, and the distance traveled on each trip.”

The right of a public official to reimbursement for his necessary expenses incurred in the performance of his official duties must be interpreted strictly. It is the view of this Court that the legislature, in enacting § 5 of Art. 1269k, intended that the Commissioners be reimbursed for their necessary expenses only upon a satisfactory presentment of each singular expense item. The statute does not permit the payment of an expense allowance, travelling or otherwise. The Commissioners had no discretion in the matter. Any payment that is not supported by adequate evidence of actual money expended can only constitute a gift of public money or compensation to the Commissioner who receives the same, which is prohibited by law.

There is ample evidence to sustain all of the findings of fact made by the trial judge. They are not against the overwhelming weight and preponderance of the evidence. We hold that the payment of an expense allowance to each Commissioner of $50.00 per month was not authorized by the “Housing Authorities Law”. The trial court properly enjoined such future payments. The second, third and fourth points of error are overruled.

The judgment of the trial court is AFFIRMED.