author: DALLY, Commissioner.

text:
    Charles Wayne ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50139.
    Court of Criminal Appeals of Texas.
    July 9, 1975.
    James 0. Terrell, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Lynn Malone and Edward Springer, Asst. Dist. Attys., Waco, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for murder; the appellant’s punishment assessed by a jury is imprisonment for five thousand years. The judgment must be reversed because of the improper jury argument made by the Assistant District Attorney.

The evidence is that the appellant, after drinking beer and taking “pills,” armed himself with a sawed-off shotgun and knives, and then he broke into the house where his estranged wife, their eleven year old son, Mervin, and the brother of the appellant’s wife ' were living. While she was in bed, the appellant shot his wife three times with a .12 gauge shotgun; it tore her body apart. He followed his son from the house into the yard and shot him twice with the shotgun, but the son recovered and was a witness at the trial. The appellant also cut the throat of his brother-in-law almost from ear to ear, but he too recovered. The horrible facts of this crime did not license the Assistant District Attorney to transgress the rules governing the trial of criminal cases in order to obtain from the jury a five thousand year verdict. The appellant was represented by court-appointed counsel who was required to exert his best efforts in defending a most difficult case.

The appellant complains in five separate grounds of error about the following part of the argument made by the Assistant District Attorney during the guilt-innocence phase of the trial:

“[ASSISTANT DISTRICT ATTORNEY WARD CASEY]: And I can sympathize with Mr. Terrell, he has got a case that there just isn’t any answer for him. He doesn’t have guts enough to come up here and think of one theory to tell you, because there is not any way to excuse, there is no way to extenuate, there is no way to justify the facts in this case. So, he come up here with this little question job. And I have never seen anybody weak enough to come up and mealy-mouth a jury like that and don’t even have guts enough himself to say the man is not guilty. He won’t even say that himself, his lawyer, but he wants you to ■ go up there and say it.
“MR. TERRELL: Your Honor, I am going to have to object to that. I am going to object first of all to Mr. Casey abusing me as counsel, striking at my client over my shoulder, and ask that you instruct the jury to disregard that. I am also going to have to object because it is not my duty in this case to say whether this man is guilty or innocent. It is solely the province of the jury, and I ask that they be so instructed.
“THE COURT: Ladies and gentlemen of the jury, you will base your verdict on the testimony that you have heard, and not what the attorneys say.
“MR. CASEY: All right, now, let’s talk about when Mr. Terrell got out of the record. Mr. Terrell told you all about Mervin being coaxed, wood-shedded, and stories being embellished on, told it to all of his kin folks, and Mr. Casey has wood-shedded and trained him. Did you hear any testimony to that effect? Did you hear him ask that question? He gets up here, and he didn’t have the guts enough to ask that boy, because he knew that he was telling the truth.
“MR. TERRELL: Your Honor, I am going to object. Excuse me, Mr. Casey. I believe it is in the record that I did ask the witness if he was over here with Mr. Casey the other day, and Mr. Casey was going through this with him. I believe that is in the record.
“THE COURT: The jury heard the testimony.
“MR. TERRELL: Okay.
“MR. CASEY: You heard it first from us, ladies and gentlemen, didn’t you? You heard from us that I had brought Mervin over here, and I let that little boy sit in this witness chair and see this courtroom, and he was scared to death. You saw him shaking like a leaf. I was doing anything I could to make it easier on that boy. And I introduced him to him, and I was kidding around, and I said, ‘He’s the bad guy, Mervin’ — you know — just kidding. And Terrell knows that is the truth. If it wasn’t the truth, he would be up objecting saying it was a lie. He knows it’s true, and he knows that is what went down and that’s all that went down over here. And there is nothing wrong with me talking to Mervin. I talked to Mervin twice; once at the hospital, and once in my office when I brought him over here and showed him the Courtroom. And we didn’t have any little dress rehearsal, ladies and gentlemen, like he would have you believe.
“And I'm going to tell you something that happened at the hospital, since we’re on this. I talked to—
“MR. TERRELL: Your Honor, I am going to object to Mr. Casey going outside the record.
“MR. CASEY: Your Honor, it is all invited by what he told this jury.
THE COURT: I’ll sustain the objection.
“MR. TERRELL: I ask that you instruct the jury to disregard any testimony from Mr. Casey about what may have happened at the hospital.
“THE COURT: He hasn’t made any comments about what happened, Mr. Terrell.
“MR. TERRELL: Okay.
“MR. CASEY: You know, he got up here and testified to you when he wasn’t under oath about being embellished, Grandmaw told him how to tell the story, Aunt Hazel told him how to tell the story, Donald Ray told him how to tell the story, and Mr. Casey done all of this—
“MR. TERRELL: Your Honor—
“MR. CASEY: —then when I try to answer him, I don’t get to do it, because I’m not a defendant.
“MR. TERRELL: Your Honor, I object to that most strenuously. That is improper argument, It is argument designed only to inflame the minds of the jury. It has nothing to do with the facts material to this case. I ask that the jury be—
“THE COURT: Overruled.
“MR. CASEY: Thank you, Your Hon- or. May we have credit for these frivolous objections over here that counsel keeps making?
“THE COURT: I’ll give you credit for the time.
“MR. CASEY: See, you can think about that, ladies and gentlemen. He doesn’t want you to think about it. He wants to pull the wool over your eyes, but you can think about it. He won’t argue the law, and he won’t argue the facts; all he will do is get up here and lie to you.
“MR. TERRELL: Your Honor, I object to that.
“THE COURT: I sustain the objection.
“MR. TERRELL: I ask you—
“THE COURT: I instruct the jury to disregard it.
“MR. TERRELL: And I ask for a mistrial on that, Your Honor.
“THE COURT: Motion denied.
“MR. CASEY: I’ll tell you what, ladies and gentlemen, if we get to the punishment phase — and I’m sure we are — I’m going to call Mrs. Katy Toten up here, and it is going to be in the record what I told her about that little boy, and about people talking to him about this case.”

The prosecutor should not have argued that appellant’s counsel did not have guts enough to argue that his client was not guilty. Defense counsel’s objection should have been sustained. The prosecutor’s argument that he could not answer because he was not a defendant implied that the rules concerning argument were different for the prosecutor than they were for the defense counsel; it was wrong and should not have been made; the objection should have been sustained. The prosecutor’s criticism of defense counsel and the request for more time to argue because defense counsel was allegedly making frivolous objections were not justified and were highly improper. Instead of agreeing with the prosecutor, the court should have admonished the prosecutor against making such unwarranted statements. The prosecutor’s statement that defense counsel was trying to pull the wool over the jurors’ eyes, that he will not argue the law, and that he will not argue the facts, but that “all he will do is get up here and lie to you,” was of such a nature that when it was made, and in the context of the prosecutor’s argument which has been quoted, could have only been remedied by granting the request for mistrial. See Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973); Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972); Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972); Dykes v. State, 168 Tex.Cr.R. 215, 325 S.W.2d 135 (1959). Cf. Edmiston v. State, 520 S.W.2d 386 (Tex.Cr.App.1975). The prosecutor’s conduct denied the appellant a fair trial. See Ruth v. State, 522 S.W.2d 517 (Tex.Cr.App.1975); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973), Stein v. State, 492 S.W.2d 548 (Tex.Cr.App.1973).

There are other serious questions raised in this appeal. The appellant did not testify, but during the punishment phase of the trial the Assistant District Attorney argued: “And you know, he said something about look at him and you can tell he is full of remorse and everything, but you haven’t heard any ‘I’m sorry,’ have you?”

“MR. TERRELL: Your Honor, I’m going to object to that. It’s a comment upon the failure of the defendant to take the stand.
“THE COURT: Overruled.”

It would appear that the jury would consider this was a reference to the appellant’s failure to testify even though the State argues it was a reference to the testimony of the two psychiatrists who had examined the appellant. The objection should have been sustained.

During the punishment phase of the trial a psychiatrist, who had examined the appellant and who was called as a witness by the State, was permitted to testify concerning many of the details of the offense related to him by the appellant. There was an objection that this testimony was in the nature of a confession and its admission would violate the appellant’s rights under the Fifth Amendment to the Constitution of the United States. If the appellant were in custody and it was not shown that he had waived his constitutional and statutory rights it would appear that the objection should have been sustained. Although there is circumstantial evidence to show that the appellant was in custody on both occasions when he was interrogated and examined by the psychiatrist we find no direct testimony in this record to the effect that he was in custody when he made the statement to the psychiatrist. See Art. 46.-02, Sec. 2(f)(4), Vernon’s Ann.C.C.P.; Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1974).

judgment is reversed and the cause remallded

Opinion approved by the Court.

DOUGLAS, J., concurs in the result.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Ex parte Witmer Jean BALLARD.
    No. 50415.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      No Attorney on Appeal.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from the denial of relief after a habeas corpus hearing for bail.

Petitioner’s application for writ of habeas corpus alleged that he was being held by virtue of two indictments, one for murder with malice and one for robbery by firearms. Petitioner had previously been convicted for the murder in 1973. The jury assessed punishment at death. It was commuted to life imprisonent through executive clemency. The conviction was reversed, Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975).

At the habeas corpus hearing the judge was apparently under the impression that bail which had been set on appeal was in effect. Where one is convicted and the punishment assessed exceeds fifteen years, he is not entitled to bail. Article 44.04, Vernon’s Ann.C.C.P., and Ex parte Bitela, 452 S.W.2d 501 (Tex.Cr.App.1970). Therefore, the previously set bail was void. Since the conviction was reversed and remanded for new trial, the case is in the same position as if a new trial had been granted by the court below. Article 44.29, V.A.C.C.P. When such a case is reversed, the defendant therein “shall be released from custody, upon his giving bail as in other cases when he is entitled to bail.” Article 44.32, V.A.C.C.P. Neither indictment under which petitioner is held is a capital offense; therefore, he is entitled to bail in a reasonable amount. Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972).

This case is remanded to the trial court for the determination of a reasonable amount of bail which should be set consistent with the rules stated in Article 17.15, V.A.C.C.P., and Ex parte Roberts, 468 S.W.2d 410 (Tex.Cr.App.1971).

It is so ordered.


author: DAVIS, Commissioner.

text:
    Roger GALVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50444.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      Amador C. Garcia, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin where trial was before the court upon a plea of guilty. Punishment was assessed at five years.

The record reflects the offense occurred on January 11, 1974, and trial was on September 12, 1974.

Appellant contends that the trial court should have withdrawn his plea of guilty upon hearing the evidence and the recommendation of the prosecutor.

The record reflects that appellant’s written judicial confession, signed and sworn to by appellant, and bearing the signatures of his counsel, the attorney for the State, and the judge, was introduced into evidence. A review of such confession reflects that it contains an admission to all elements of the offense. In addition, appellant took the stand and admitted that he possessed heroin on the date in question, that he was a user of heroin at that time, but since that date he had discontinued the use of heroin. The evidence in support of appellant’s plea of guilty was overwhelming. We reject appellant’s contention that it was incumbent upon the trial judge to withdraw appellant’s plea of guilty after hearing the evidence. See Trevino v. State, 519 S.W.2d 864; Reyna v. State, 484 S.W.2d 362; Williams v. State, 487 S.W.2d 363; Faz v. State, 510 S.W.2d 922; Garza v. State, 502 S.W.2d 155.

Appellant further urges that the court should have withdrawn his plea of guilty in view of the prosecutor’s recommendation of probation. Before accepting appellant’s plea of guilty, the court not only admonished appellant in accordance with Art. 26.13, Vernon’s Ann.C.C.P., but followed the highly desirable practice of explaining in detail to appellant that he was aware of his motion for probation, and that he did not have to accept the recommendation of “the State’s attorney nor your attorney” on punishment. The court further inquired of appellant if he understood that “you may or may not receive probation,” and appellant answered in the affirmative. It would appear to be appellant’s argument that the court should have withdrawn his plea in light of the prosecutor’s recommendation of probation. Neither Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 nor the holdings of this Court will support such contention. Kincaid v. State, 500 S.W.2d 487; Trevino v. State, supra.

Appellant contends the court should have granted appellant’s motion for probation in light of his record of no previous convictions and appellant’s expression of willingness to live under the conditions of probation.

When trial is before the court and motion for probation is filed, the trial judge has absolute and unreviewable discretion to refuse or grant probation. Cisneros v. State, 501 S.W.2d 907; Saldana v. State, 493 S.W.2d 778.

Appellant contends that the court should have held a hearing to determine whether his plea of guilty was voluntary or was based upon an agreement with the district attorney.

As heretofore noted, the court carefully explained to appellant before accepting his plea of guilty that he was not bound by the recommendation of the prosecutor, that he was aware of appellant’s motion for probation, and that appellant might or might not receive probation. It is further noted that when appellant took the stand to testify in support of his motion for probation, he was asked by his retained counsel, “Did I or the District Attorney promise you anything?” and appellant responded, “No.”

The fact that appellant may have entered a plea of guilty as a result of plea bargaining in the hope of escaping the possibility of a higher sentence, as appellant strongly urges in his brief, did not invalidate the plea. Valdez v. State, 507 S.W.2d 202.

We reject appellant’s contention that it was incumbent upon the court to go further in his inquiry of whether the plea was voluntary.

Appellant contends that the court should have been bound by the terms of the plea negotiated by and between appellant and the State.

This argument was answered adversely to appellant in this Court’s recent decision in Trevino v. State, supra.

We have reviewed appellant’s contention that he has been denied due process of law in which grounds heretofore asserted are reviewed. We find no merit in same.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Donald Ray HERRIN, Appellant, v. The STATE of Texas, Appellee.
    No. 59117.
    Court of Criminal Appeals of Texas.
    July 9, 1975.
    Donald F. McNiel, II, Stephenville, for appellant.
    Bob Glasgow, Dist. Atty. and Quay Parker, Asst. Dist. Atty., Stephenville, Jim D. Yollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.

      . It appears that appellant was in custody of federal authorities and that the Erath County jail was not approved by federal authorities for confinement of federal prisoners and the closest approved jail was the Tarrant County jail in Fort Worth.

   OPINION

ONION, Presiding Judge.

The appellant was tried jointly with co-defendant Paul William Jordan for the offense of aggravated robbery. Following the return of a guilty verdict, the jury assessed punishment at confinement for thirty-six (36) years in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is not challenged.

The evidence adduced at trial reveals that at approximately 8:40 a. m. on February 12, 1974, the appellant and Jordan entered the Lawson Jewelry Store in Stephenville and robbed at gunpoint the owner, P. W. Tram-mell, of approximately $12,000 worth of watches and rings and $50 cash. Trammell testified that the exhibition of pistols by the appellant and Jordan placed him in fear of death. Trammell also testified that he did not give consent to either the appellant or Jordan to enter his store and at gunpoint take his jewelry and money. Charlotte Keese, a hairdresser at a beauty shop located next to the jewelry store, was an eyewitness to the robbery.

In his lone ground of error the appellant . contends that the trial court committed reversible error in denying him the opportunity to consult with counsel outside the presence of his guards and jailers, thereby denying him effective assistance of counsel. In support of his contention, the appellant refers this court to his timely filed formal bill of exception No. 1, which reads:

“Be it remembered, that prior to the arraignment and trial of the above entitled and numbered cause and while the Defendant was in the custody of The United States Marshal in and for the Northern District of Texas, the Defendant was transported to Stephenville, Texas on or about the 7th day of May, 1974, and the undersigned by telephone was notified of his impending appointment as counsel for Defendant and instructed to communicate with the Defendant at the Sheriff’s office in the Erath County Courthouse; that the Deputy United States Marshals were preparing to take the Defendant to Fort Worth within the quarter hour and that the undersigned, if he was to communicate with the Defendant should make all haste to see him;
“Be it further remembered that the undersigned communicated with the Defendant for a period of time not exceeding fifteen minutes in the office of the Sheriff of Erath County, Texas, the Defendant being handcuffed and shackled during the conversation and the conversation taking place in the presence of a Deputy Sheriff of Erath County; two Deputy Marshals and a clerk employed in the Sheriff’s office.
“Be it further remembered the Defendant was immediately taken to Fort Worth and was not returned to Erath County until the afternoon of May 23,1974, again in the custody of two Deputy United States Marshals. Thp' undersigned was given only a short time to confer with the Defendant, again at the office of the Sheriff of Erath County, Texas, and in the presence of the Deputy Marshals and Sheriff’s personnel (at no time there being less than two present). Immediately after arraignment the Defendant was transported to Forth Worth, Texas.
“Be it further remembered that the undersigned requested the Court to issue a bench warrant ordering the Defendant brought to Erath County on Thursday, June 6, 1974, at which time a pre-trial hearing was set for a co-defendant in order that counsel might fully prepare for trial. Be it further remembered that the undersigned requested that Defendant be lodged in the Erath County Jail prior to trial in order that counsel would have an opportunity to and place in which to confer with Defendant.
“Be it further remembered that the Court refused to grant the undersigned’s request and suggested that counsel travel to Fort Worth, Texas, if necessary to confer with the Defendant, to which the Defendant excepts.
“It is respectfully requested that the foregoing bill of exception be approved, ’
“/s/ Donald F. McNeil. II
Donald F. McNeil, II
Attorney for Defendant
P. 0. Box 532
Stephenville, Texas 76401”

An examination of the record discloses that the trial court took no action with respect to the bill of exception within 100 days after notice of appeal was given. Therefore, it is deemed approved since the trial court did not refuse or qualify it. Article 40.09, subd. 6(a), Vernon’s Ann.C.C.P.; Dickhaut v. State, 493 S.W.2d 223 (Tex.Cr.App.1973).

Assuming, without deciding, that a formal bill of exception can be utilized to cover all of the matters contained in appellant’s bill of exception, see Articles 40.09, Sec. 6(a) and 36.20, Vernon’s Ann.C.C.P., it must be remembered a bill of exception must be complete within itself and must stand or fall by its own allegations. 5 Tex.Jur.2d, Appeal and Error — Criminal Cases, Sec. 195, p. 318. And every bill of exception must plainly show the error complained of. 5 Tex.Jur.2d, Appeal and Error — Criminal Cases, Sec. 199, p. 327.

Even if all the things alleged in the bill of exception did in fact occur, these allegations do not in themselves show that the appellant was thereby deprived of effective assistance of counsel.

There is nothing in the bill or in the record before us to show that conferences on May 7 and 23, 1974, were the only conferences that counsel had with the appellant. There is no showing that counsel did not in fact travel to Fort Worth as suggested by the trial court, and nothing to show how long counsel may have conferred with appellant after he was returned to Erath County for trial.

Appellant announced “ready” .for trial and filed no motion for continuance.

Appellant urges in his brief that he suffered injury because he was not granted an opportunity to plea bargain, discuss trial strategy or “investigative leads” with counsel and had to make a snap decision to plead “not guilty.” These assertions are not supported by the bill of exception or the record. As noted earlier, assertions in an appellate brief not supported by the record will not be accepted as a fact. Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).

The judgment is affirmed.

      . At the punishment phase of trial, the State introduced Federal Prison records from Tex-arkana which show that the appellant’s name is Donald Ray Letson, a.k.a. Donald Ray Herrin. A fingerprint expert identified the fingerprints on the prison record of Let-son as being identical to those of the appellant.

      . See and cf. McCall v. State, 512 S.W.2d 334, 335 (Tex.Cr.App.1974). It should be kept in mind that if the trial judge had qualified the bill he would not have been able to qualify it as to matters contained therein which were not within his knowledge. 5 Tex.Jur.2d, Appeal and Error— Criminal Cases, Sec. 184, pp. 303-304.

      .Appellant asserts in his brief that upon return to Erath County on June 10, 1974, his trial began immediately. It is well settled that this court will not accept as fact allegations contained in appellant’s brief not supported by the record. Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1974); Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).


author: GREEN, Commissioner.

text:
    Larry Joe TRIBBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 50331.
    Court of Criminal Appeals of Texas.
    July 9, 1975.

      John V. McShane, Dallas, for appellant.
    Tim Curry, Dist. Atty., Rufus Adcock, Tom Hill, Roger W. Crampton and Bob Marshall, Asst. Dist. Attys., Forth Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant entered a plea of guilty before a jury to the offense of knowingly and intentionally delivering marihuana and it assessed his punishment at three (3) years.

The indictment alleged that the offense was committed on or about January 15, 1974. Consequently, said indictment was drawn under the provisions of Section 4.05, Texas Controlled Substances Act (Article 4476 — 15, Vernon’s Ann.Civ.Stat.).

The indictment, omitting the formal parts, alleges that appellant on or about January 15,1974, “did then and there knowingly and intentionally deliver to D. L. Stallings marihuana, . . . ” Such is fundamentally defective in that it fails to allege the amount of marihuana delivered or that the marihuana was delivered for remuneration, so as to reflect what punishment is involved, whether the offense is a misdemeanor or a felony, or whether the district court has jurisdiction. Medrano v. State, 524 S.W.2d 719 (No. 50,137, June 25) (Tex.Cr.App.1975); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975). Cf. Trevino v. State, 523 S.W.2d 718 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.


text:
    Don Henry WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50298.
    Court of Criminal Appeals of Texas.
    July 9, 1975.

      Robert Everett L. Looney and Duncan F. Wilson, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., David A. Sheppard, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin,' for the State.
   OPINION

GREEN, Commissioner.

Appellant plead guilty, and was convicted of unlawful possession of a usable quantity of marihuana of more than four ounces. Punishment was assessed at two years. The offense occurred January 16, 1974.

Appellant’s sole ground of error is:

“The trial court erred in its judgment of sentence in that the penal provisions of The Texas Controlled Substances Act under which appellant was convicted are unconstitutional and void.”

Appellant argues that the punishment provisions of the Texas Controlled Substances Act, Article 4476-15, Section 4.05(a) and (b)(1), Vernon’s Ann.Tex.Civ.Stats. are in such direct conflict with those of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, Title 21, U.S.C.A., Section 844(a), that by virtue of Title 21, U.S.C.A., Section 903, the Texas penalty provisions are void.

Appellant’s conviction rests upon a violation of Section 4.05(a) of Article 4476-15, Vernon’s Ann.Tex.Civ.Stats., which prohibits the possession of a usable quantity of marihuana. Where, as in the instant case, the quantity is more than four ounces, the offense is a third degree felony, Section 4.05(b)(1), with a punishment range of from two to ten years and a fine not exceeding $10,000.00. V.T.C.A., Penal Code, Section 12.34.

For the purpose of showing a “positive conflict” (see 21 U.S.C.A., Section 903, supra) between the penalties under our State Controlled Substances Act and those provided in the Federal statute, appellant compares the above stated penalties with Title 21, U.S.C.A., Section 844(a), which prohibits “simple possession” of controlled substances, including marihuana. The punishment there provided is “imprisonment of not more than one year, a fine of not more than $5,000, or both, except that if he commits such offense after a prior conviction or convictions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years, and a fine of not more than $10,000, or both.”

Appellant in his brief states that he “bases his appeal on the special nature of 21 U.S.C.A., Section 903, in relation to the penalty provisions of the Texas Controlled Substances Act . . . .”

He further states:

“It is appellant’s contention that certain provisions of the Texas Act — specifically, the penal provisions — do frustrate the intention of Congress and thus are void through operation of the Supremacy Clause and the special nature of 21 U.S. C.A., Section 903.”

Section 903 of Title 21, U.S.C.A., provides:

“Application of State law
“No provision of this subehapter shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.” (Emphasis added).

We do not find that the differences in the punishments provided in the State and the Federal laws constitute a positive conflict such as prevents the two to consistently stand together. See Morse v. State, Tex.Cr.App., 502 S.W.2d 805; Stein v. State, Tex.Cr.App., 514 S.W.2d 927.

Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Article VI, Clause 2, U. S. Constitution, which states in part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby . . . ”

      . In Morse, we quoted Section 903 of Title 21, U.S.C.A., supra, and held that a range of punishment of from 2 years to life for violation of the provisions of the Texas Uniform Narcotics Drug Act, Article 725b, V.A.P.C. (1961) did not constitute “a positive conflict” with Title 21, Sections 801 et seq., U.S.C.A.


author: MOORE, Justice.

text:
    Oscar Lee GRAGG, Appellant, v. CAYUGA INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 820.
    Court of Civil Appeals of Texas, Tyler.
    June 5, 1975.
    Rehearing Denied June 26, 1975.

      Billy H. Gragg, Bob R. Reeves, Palestine, for appellant.
    James E. Pritchard, Fort Worth, and Elvin E. Tackett, Bedford, for appellee.
   MOORE, Justice.

This is a delinquent tax suit. Appellee, Cayuga Independent School District, instituted suit against appellant, 0. L. Gragg, for the recovery of certain delinquent ad valorem taxes alleged to be due by appellant for the years of 1971, 1972 and 1973, and to foreclose a tax lien on land owned by appellant lying within the school district. Appellant answered with a general denial and affirmatively alleged by way of a defense that no taxes were due because the method used by the school district in assessing the land for taxes was in violation of Article 8, Sec. 1-d of the Texas Constitution, Vernon’s Ann.St., which requires that land designated for agricultural use must be assessed for tax purposes on the basis of only those factors relative to agricultural use. After a trial before the court sitting without a jury, the trial court entered judgment for the school district for taxes, penalty and interest in the amount of $30,686.16 and for foreclosure of the tax lien. From such judgment, appellant, 0. L. Gragg, perfected this appeal.

We affirm the judgment rendered by the trial court.

The trial court filed extensive findings of fact and conclusions of law. Among other things, the trial court found (1) that although appellant used the land for agricultural purposes, he failed to establish his eligibility for an agricultural use designation under the amendment in that his proof failed to show that his agricultural business constituted his primary occupation and source of income and (2) that appellant failed to prove that the plan or scheme employed by the district in fixing the value of his land worked to his substantial injury.

Appellant brings fifty-two points of error. Basically, he contends that the evidence conclusively established his eligibility to claim the benefit of the amendment, and based on this premise, he contends that the assessment and levy were void because the district adopted a fundamentally wrong method of taxation in that the school district valued his land on a basis other than its value for agricultural use in violation of the constitutional mandate. We are not in accord with this proposition for two reasons.

First, in order for appellant to claim the benefits of the amendment, it was incumbent upon him to plead and prove that he properly brought himself within the requirements of the amendment. One of the essential requirements is that an applicant for an agricultural use designation must prove that his business venture in agriculture constitutes his primary occupation and source of income. Thus, the source of an applicant’s income is of paramount importance. With regard to appellant’s income, the trial court made findings of fact as to both the net and gross annual income received by appellant from his agricultural business as well as from other business and investments. For convenience, the findings are set forth in the following schedule:

Appellant has no points of error challenging the accuracy of any of the findings showing appellant’s income from the various sources indicated and therefore such findings are conclusive and binding on this Court. Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App., writ ref., n. r. e.); Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App., 1970, n. w. h.). In view of the foregoing findings, it becomes obvious that appellant’s agricultural income did not constitute his primary source of income and this is true irrespective of whether his income is computed on the basis of net or gross income. We hold that the trial court did not err in finding that appellant did not discharge his burden of proving that he brought himself within the requirements of the amendment.

While appellant does not challenge the accuracy of the foregoing income schedule, he maintains that the trial court erred in including certain items of income in calculating his total business income. He argues that only such income which he received from a business venture for profit is to be compared with agricultural income in determining his eligibility. He takes the position that the items of income listed below should not have been classified as business income and upon excluding these items, his agricultural income would then constitute his primary source of income thereby making him eligible for an agricultural use designation. The items of income which he claims should have been excluded are set forth in the following schedule:

We are not in accord with appellant’s contention that the foregoing items should have been excluded from his non-agricultural income. In determining whether agricultural income constitutes the primary source of income, other income from business ventures, occupations and investments must be considered. San Marcos Consolidated Ind. School Dist. v. Nance, 495 S.W.2d 335 (Tex.Civ.App., 1973, writ refd., n. r. e.). In the instant case, there is nothing in the evidence showing that the above listed items of income were received by appellant as anything other than income from business ventures, occupations or investments of capital. The record reflects that appellant has been in the oil business for over forty years; he is a partner in two oil companies, Carter-Gragg Oil Company and Gragg Drilling Company; he has a considerable income from oil and gas producing properties located in a number of States; he has rental income from an office building in Houston; he received considerable income from invested capital such as profit on the purchase and sale of stock, and he receives dividends from stocks as well as interest on invested capital. He purchased the farm land in question in 1946. In view of the fact that appellant actively engaged in the oil business and actively engaged in the business of making investments, we think the trial court properly included the foregoing items in arriving at appellant’s income from non-agricultural sources.

Second, even if appellant had established his eligibility to an agricultural use designation, it does not necessarily follow that he would be entitled to a judgment voiding the assessment merely because the school district failed to assess his land in accordance with the constitutional mandate. There must be more than the adoption of a fundamentally wrong principle or method of taxation. When the attack is made because the taxing authority followed an arbitrary plan or scheme of fixing values, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one, but also that the use of the plan worked to his substantial injury. Druesdow v. Baker, 229 S.W. 493, 495 (Tex.Com.App., 1921); Rowland v. City of Tyler, 5 S.W.2d 756, 760 (Tex.Com.App., 1928); Lubbock Hotel Co. v. Lubbock Independent School Dist., 85 S.W.2d 776 (Tex.Civ.App., Amarillo, 1935, no writ); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 (1954); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955); Stein v. Lewisville Independent School Dist., 481 S.W.2d 436 (Tex.Civ.App., Ft. Worth, 1972, writ ref., n. r. e.). In Bass v. Aransas County Independent School District, 389 S.W.2d 165, 170 (Tex.Civ.App., Corpus Christi, 1965, writ ref., n. r. e.), the rule is stated thusly:

“The rule has been definitely established in Texas that'where an aggrieved taxpayer fails to avail himself of the affirmative remedies of injunction and mandamus to prevent a taxing authority from putting an invalid and arbitrary plan of taxation into effect, but waits until suit is brought against him for delinquent taxes, his right to relief is limited. Once such a plan is put into effect, in the absence of a showing, by comparison of the assessments against his property with assessments against other like property, of a gross discrimination against him, the land owner may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving excessiveness. He must show that the use of such a plan worked to his substantial injury, and the extent of such injury. * * * ”

In the City of Orange v. Levingston Shipbuilding Co., 258 F.2d 240 (5th Cir.1958), the Court said:

“No matter how much it (the tax plan) violates the State Constitutional pattern, the only relief of a taxpayer defending a delinquent tax suit is to show in dollars that he is worse off.”

Upon the trial of the case at bar, the school district introduced into evidence the delinquent tax records for the years 1971,1972 and 1973. The tax assessor identified the records and testified that the taxes had not been paid. This evidence made a prima facie case as to every material fact necessary to the establishment of appellee’s cause of action to recover delinquent taxes. Article 7326 and Article 7328, Vernon’s Annotated Tex.Civ.Stat.; Alamo Barge Lines, Inc. v. City of Houston, 453 S.W .2d 132 (Tex.Sup.1970); B. M. Jamison v. City of Pearland, 489 S.W.2d 636 (Tex.Civ.App., Houston, 1st Dist., 1972, writ ref’d., n. r. e.). Once a taxing authority establishes a prima facie case, showing that taxes are delinquent, the burden then rests upon the taxpayer to go forward with proof which would meet the requirements of law for avoiding the assessment and levy. State v. Whittenburg, supra.

The record is devoid of any evidence showing that the taxes levied against appellant were either discriminatory or exces-. sive. Appellant made no attempt to prove that the assessment and levy were discriminatory. His sole contention seems to be that the taxes are excessive because his land was assessed at a value in excess of the value at which it should have been assessed had it been assessed solely on factors relative to its agricultural use.

Appellant, however, failed to offer any proof of the value of his land based solely on its use for agricultural purposes. The only proof of the value of the land was the assessed value set by the tax assessor. For all the record shows, it may well be that the assessed value was actually lower than the market value of the land when valued on an agricultural use basis. In the absence of proof showing the assessment and levy to be excessive, it follows that appellant failed to discharge his burden of proving substantial injury.

Appellant argues that his proof was sufficient to show substantial injury. He takes the position that substantial injury was conclusively established by the testimony of Walter B. Brown, appellant’s land-man. We do not agree. Brown testified that after talking with landowners, he had “learned” that in other school districts where land was assessed as agricultural land, the taxpayer received “about” a “40% reduction” in his taxes. Such testimony is clearly hearsay and, as such, was without probative force. 24 Tex.Jur.2d, Evidence, Sec. 557, p. 51. At any rate, such testimony would not meet appellant’s burden of proving that the assessed value was in excess of the market value of his land when valued on an agricultural use basis.

By other points of error, appellant contends that various findings of fact made by the Court are against the great weight and preponderance of the .evidence. After a review of the entire record and after weighing all the evidence, both that in favor of, as well as that against the findings complained of, we are of the opinion that such findings are not against the great weight and preponderance of the evidence.

Other points, not discussed herein, have been considered and found to be without merit and are overruled.

The judgment of the trial court is affirmed.

      . Hereinafter referred to as the “amendment.”

      . The relevant parts of the Constitutional Amendment are as follows:
      “Sec. 1-d. Assessment of lands designated for agricultural use “Sec. 1-d. (a) All land owned by natural persons which is designated for agricultural use in accordance with the provisions of this Section shall be assessed for all tax purposes on the consideration of only those factors relative to such agricultural use. ‘Agricultural use’ means the raising of livestock or growing of crops, fruit, flowers, and other products of the soil under natural conditions as a business venture for profit, which business is the primary occupation and source of income of the owner.
      “(b) For each assessment year the owner wishes to qualify his land under provision of this Section as designated for agricultural use he shall file with the local tax assessor a sworn statement in writing describing the use to which the land is devoted.
      “(c) Upon receipt of the sworn statement in writing the local tax assessor shall determine whether or not such land qualifies for the designation as to agricultural use as defined herein and in the event it so qualifies he shall designate such land as being for agricultural use and assess the land accordingly.
      “(d) Such local tax assessor may inspect the land and require such evidence of use and source of income as may be necessary or useful in determining whether or not the agricultural use provision of this article applies.”

      . The parties agree that in determining eligibility for an agricultural use designation for 1971, 1972 and 1973, appellant’s income for each preceding year is controlling.


author: OSBORN, Justice.

text:
    Frederick GRUBB, Appellant, v. Thomas GRUBB, Appellee.
    No. 6424.
    Court of Civil Appeals of Texas, El Paso.
    June 11, 1975.
    Rehearing Denied July 23, 1975.

      Malcolm McGregor, Philip T. Cole, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, Stephen B. Tatem, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves a suit between two brothers for damages arising from personal injuries sustained while work was being performed in a master-servant relationship and the defense of assumed risk as it relates to such relationship. The jury found that the Appellee-master committed two negligent acts which proximately caused the injuries sustained by the Appellant-servant and awarded damages for such injuries. The trial Court entered a take-nothing judgment based upon the jury’s answers to two special issues concerning assumed risk. We reverse and render judgment for the Appellant.

In 1969, Appellee sold a ranch which he owned in Colorado with the understanding that the ranch equipment would be removed the next year. In 1970, Appellant, as Appellee’s employee, went to Colorado to remove the equipment which included a hay baler. Appellant was instructed to drive a semi-trailer truck into a ravine on the ranch so that the trailer was parallel to the bank of the ravine. He was to pull the baler onto the trailer. When Appellant arrived at the ranch, the ground had begun to thaw so that it was extremely muddy and slick. He phoned Appellee and requested a boom and winch truck for purposes of loading the baler, but such request was refused. As the baler was being loaded onto the trailer it slipped off into the ravine. Appellant then decided to pull the baler out of the ravine with a tractor. While pulling the baler up the ravine, the baler evidently became bound causing the tractor to rear up and fall over on the Appellant.

The Appellant had experience operating a tractor and he knew that if the forward momentum of the tractor was suddenly stopped by some force, such as hanging the load being pulled, the gearing in the tractor would cause the tractor to rotate around the axle in such a manner as to cause the tractor to rear up and fall back on him. He testified that he felt the baler or something bind, but before he could do anything the tractor reared up and fell on him. He did not know why the baler became bound on this occasion. The jury found that the Ap-pellee’s negligent failure to provide Appellant with a reasonably safe place in which to work was a proximate cause of his injuries, and that the Appellee’s negligent failure to provide Appellant a winch truck to load the hay baler was a proximate cause of his injuries. With regard to Appellant operating the tractor at an excessive rate of speed, failing to timely engage the hand clutch, and failing to keep a proper lookout, the jury answered each issue with a negative answer. Special Issues Nos. 5 and 6 were as follows:

“SPECIAL ISSUE NO. 5
“Do you find from a .preponderance of the evidence that on the occasion in question, the Plaintiff, FREDERICK GRUBB, voluntarily undertook to remove the hay bailer from the ravine with the tractor?
“Answer ‘He did’ or ‘He did not’.
“ANSWER: He did”
“SPECIAL ISSUE NO. 6
“Do you find from a preponderance of the evidence that the Plaintiff, FREDERICK GRUBB, knew and appreciated the danger of the tractor rearing if the hay bailer became bound while pulling it out of the ravine with the tractor?
“Answer ‘He did’ or ‘He did not’.
“ANSWER: He did”

Based upon such verdict, Appellant filed a motion to disregard Special Issue No. 5 and the answer thereto and to enter judgment in his favor upon the remaining findings of the jury. Appellee filed a motion for judgment on the verdict which the trial Court granted, denying Appellant any recovery. Appellant in all of his points of error complains of the judgment of the trial Court and the failure to disregard the assumed risk findings in Special Issues Nos. 5 and 6.

The procedural aspects of the appeal greatly complicate a review of the substantive issues involved. Appellant presents ten points of error, none of which are related as being germane to any assignment of error in the motion for new trial despite such requirement in Rule 418, Texas Rules of Civil Procedure. This may be intentional since all the assignments in the motion for new trial are legally insufficient, save the last one. Point of Error Number Six, based upon the last assignment of error, cannot be sustained because there is some evidence to support the jury’s answer to Special Issue No. 6. Other than the last assignment of error, the grounds set forth in the motion for new trial are as follows:

“I.
“The Trial Court erred in overruling the Defendant’s objections to Special Issue No. 5.
“II.
“The Trial Court erred in overruling the Defendant’s objections to Special Issue No. 6.
“III.
“The Trial Court erred in failing to submit the Plaintiff’s Requested Issues and Instructions that correctly submitted the theory of assumption of risk.
“IV.
“The Court erred in refusing to disregard the jury’s answers to Special Issues Nos. 5 and 6 and to enter judgment in favor of the Plaintiff.”

These assignments do not comply with the provisions of Rules 320, 821, 322 and 374, Tex.R.Civ.P., and come within the conclusion reached in Wagner v. Foster, 161 Tex. 383, 341 S.W.2d 887 (1960), where the Court said:

“ * _ * ⅜ assjgnment 0f error in a motion for new trial which merely directs the trial judge to scan all of a party’s objections to the charge of the court ,is legally insufficient to require or to justify consideration of a point of error based thereon. * ⅜ ⅜ ”

Thus, despite the fact that the Appellant apparently made good and valid objections to the Court’s charge concerning the assumed risk issues in this case, those complaints can avail him nothing under the motion for new trial which was filed in this case.

But, Appellant did file a motion to disregard a jury finding in which an attack was made on Special Issue No. 5 and its answer on the basis that the issue formed no element of a defensive theory and was insufficient to submit the theory of assumed risk. Such a motion, when denied, may form the basis for a point of error, even though it is not set forth in the motion for new trial. Rule 324, Tex.R.Civ.P.; Wagner v. Foster, supra. We conclude this motion is sufficient to serve as a basis for Appellant’s Point of Error Number Four which complains that the trial Court erred in refusing to disregard Special Issue No. 5 and in refusing to enter judgment for Appellant on the remaining jury findings.

A jury’s answer to a special issue may be disregarded when the issue is immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Burch v. Southwest Title Company, 450 S.W.2d 752 (Tex.Civ.App. — San Antonio 1970, no writ). We conclude that Special Issue No. 5 was immaterial since it only submitted an eviden-tiary issue, not an ultimate issue, and did not inquire about any disputed fact issue concerning the defense of assumption of risk.

Without dispute, Appellant did voluntarily drive the tractor on the occasion in question for the purpose of pulling the hay baler from the ravine. But that is not to say that he voluntarily encountered the risk with which he became involved. The danger arose and the risk of injury occurred only after the baler became bound. Had he then proceeded to attempt to remove the baler he obviously would have voluntarily encountered a danger, which actually existed, and would have assumed the risk since he did know and appreciate the danger of the tractor rearing once the baler became bound (Special Issue No. 6). In this case, the jury did not find any negligent conduct upon the part of the Appellant, even with regard to his failure to timely engage the hand clutch, which would have prevented the tractor turning over, but even if they had found in the affirmative on such issue, a negligent failure to choose the best escape from the throes of peril is not a voluntary encounter with the danger. Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974). Quite obviously from that opinion, the Court has limited the application of the assumed risk doctrine in cases where there is very limited time and opportunity to avoid an accident. Also see Ellis v. Moore, 401 S.W.2d 789 (Tex.1966), and Cantrell v. Markham & Brown Company & Associates, 452 S.W.2d 940 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.).

Special Issue No. 5, as submitted, does not raise an essential issue necessary to establish the defense of assumed risk. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972). It is essential that the “voluntary encounter” be with existing conditions which are known and dangers which are appreciated. Sinclair Refining Company v. Winder, 340 S.W.2d 503 (Tex.Civ.App. — Waco 1960, writ ref’d). Special Issue No. 5 did not make such an inquiry and it made no mention of the risk which gave rise to the danger inquired about in Special Issue No. 6. With sufficient knowledge a servant may assume the risk of every probable danger, but that is not to say he assumes the risk of every possible danger. Orange Lumber Co. v. Ellis, 105 Tex. 363, 150 S.W. 582 (1912).

It is incumbent upon a party to submit substantially correct issues which raise each element of a ground of recovery or a defense. Rule 279, Tex.R.Civ.P.; National Life and Accident Insurance Company v. Salas, 426 S.W.2d 327 (Tex.Civ.App.— Eastland 1968, writ ref’d n. r. e.); Weingarten, Inc. v. Scott, 456 S.W.2d 266 (Tex.Civ.App. — Houston (14th Dist.) 1970, no writ); Merchandise Mart, Inc. v. Marcus, 488 S.W.2d 893 (Tex.Civ.App. — Tyler 1972, writ ref’d n. r. e.). And evidentiary issues cannot form the basis for a judgment. Ratcliffe v. Ormsby, 298 S.W. 980 (Tex.Civ.App. — Eastland 1927), aff’d Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084 (1928); Simmons Motor Company v. Mosley, 379 S.W.2d 711 (Tex.Civ.App. — Austin 1964, writ ref’d n. r. e.); Masterson, Preparation and Submission of Special Issues in Texas, 6 Sw.L.J. 163, 169 (1952).

In this case, counsel for the Appellant not only made valid objections to Special Issue No. 5 but went further and requested that if any special issue was to be submitted on the defense of assumed risk that it be in the terms of the issue as set forth in the footnote in Adam Dante Corporation v. Sharpe, supra. Such request was refused by the trial Court. The Appellee being satisfied with the issue made no complaint.

Concluding that the Appellee had the burden to submit substantially correct issues which raised each and every element of the defense of assumed risk, and that Special Issue No. 5 submitted no element of such defense, and that without such issue there is no finding of a “voluntary encounter” with the actual risk which caused the accident, namely, the tractor rearing over, the defense has not been established. Favorable jury findings on some of the elements of a cause of action or a defense are of no effect where some issues are omitted and proper complaint is made by the opposing party. Ray v. Rushin, 225 S.W.2d 208 (Tex.Civ.App. — Waco 1949, no writ); Merchandise Mart, Inc. v. Marcus, supra.

Appellee also urges that there is no showing of any breach of duty in this case. We cannot agree. A master has certain absolute and nondelegable duties which are owed to an employee including the duty to furnish a reasonably safe place to work and the duty to furnish reasonably safe machinery or instrumentalities with which to work. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Mender v. Bryant, 225 S.W.2d 877 (Tex.Civ.App. — El Paso 1949, writ ref’d); Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). We believe the evidence was legally and factually sufficient to support the jury findings of negligence and proximate cause. Surely Appellee could reasonably anticipate and foresee that if the first attempt to load the hay baler was not successful, a second attempt would be made, and this could include pulling the baler out of the ravine and back up on the bank next to the trailer.

The case has been fully developed and each party has had an opportunity to have a jury pass upon those issues which he believed to be controlling in the case. Having failed to obtain proper findings on each element of the defense of assumed risk and having failed to request a proper issue such as was outlined in the Adam Dante case, the Appellee is not entitled to have the case remanded for another “bite at the apple.” Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967). Therefore we sustain Appellant’s fourth point of error and reverse the judgment of the trial Court and render judgment for the Appellant, such being the judgment which the trial Court should have rendered. Scott v. Liebman, 404 S.W.2d 288 (Tex.1966).


author: HALL, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. FIRE INSURANCE EXCHANGE, Appellee.
    No. 5396.
    Court of Civil Appeals of Texas, Waco.
    June 26, 1975.
    Rehearing Denied July 24, 1975.
    See also, Tex.Civ.App., 508 S.W.2d 703.
    Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for appellant.
    Touchstone, Bemays & Johnston, Porter K. Johnston, Dallas, for appellee.
   HALL, Justice.

Gene Burks owns and operates a restaurant in Royse City, Texas, known as “Burks Barn.” The appellee, Fire Insurance Exchange (hereinafter called “F.I.E.”) began insuring the restaurant against fire loss in June, 1968. The premiums were paid monthly by Burks. From time to time, as he enlarged the place, Burks would increase his coverage. On September 18, 1971, Burks increased the fire insurance on the building from $30,000 to $80,000 and on the contents from $10,000 to $20,000. This called for an examination of the property by F.I.E.’s underwriting department, which was done, and necessitated a change in the records of F.I.E.’s subsidiary company in charge of premium collections. In November, 1971, confusion developed between F.I. E.’s underwriting department and its premium collection subsidiary and its agent who was dealing with Burks, and between the agent and Burks, as to whether F.I.E.’s policy would or would not lapse or be can-celled effective December 17, 1971. Because of this uncertainty, Burks secured a fire policy binder from the appellant, Fire Insurance Company of North America (“INA”), effective December 17, 1971, insuring the restaurant building for $50,000 and its contente for $10,000.

Excepting the amount of coverage, the F.I.E. policy and the INA binder contained identical terms. They were on or were to be written on a Texas standard fire policy form; both insured the same property and the same insured; each prohibited other fire insurance; and both contained the following pro rata liability clause:

“This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the Peril involved, whether collectible or not.”

On December 24, 1971, the restaurant building and its contents were substantially damaged by fire. F.I.E. refused to make payment under its policy. On February 21, 1972, INA paid Burks $60,000 and took in exchange therefor a “loan receipt” from Burks which provided that the loan was to be repayable by Burks to INA without interest and only in the event of and to the extent of any recovery that Burks might obtain from F.I.E. It was also provided in the loan receipt that INA would control any litigation by Burks against F.I.E.

Thereafter, Burks initiated this lawsuit against F.I.E. to recover $100,000 upon the F.I.E. policy. F.I.E. answered with a general denial and a special plea that the policy sued upon had been cancelled prior to the fire. It did not plead the pro rata liability clause in its response to Burks’ suit. It impleaded and filed a third-party claim against INA, alleging that the $5Q,000/$10,-000 binder issued by INA was effective at the time of the fire. F.I.E. asserted that it was entitled to contribution from INA in the full amount of INA’s policy, or to contribution in accordance with the pro rata liability clauses in the policies of both companies, or to indemnity. INA joined issue with a general denial.

The original claim and the third-party claim were tried together before a single jury. On the trial, all parties stipulated that the amount of the damage to the restaurant contents was $29,799. Seven special issues were submitted to the jury. In its answers to the issues, the jury failed to find that the restaurant building was a total loss; found that the market value of the building before the fire was $80,000, and after the fire was $2,000; and failed to make findings in support of F.I.E.’s special defense of policy cancellation.

No issues concerning F.I.E’s third-party claim against INA were submitted to the jury.

In the judgment, the court made the following conclusions of fact and law: That INA’s $50,000/$10,000 binder was issued on December 17, 1971, prior to the fire, and was an “unconditional binder”; that when INA’s agent issued its binder, he had “full knowledge” that either Gene Burks was covered by fire insurance issued by F.I.E. or that there was a dispute concerning whether the F.I.E. policy was cancelled; that “with full knowledge of all of the circumstances surrounding Gene Burks’ coverage with Fire Insurance Exchange,” INA’s agent failed to show the existence of any co-insurance on the binder; that the insurance contracts of both F.I.E. and INA “covered the same subject matter owned by the same person, Gene Burks”; that Burks executed a loan receipt to INA in consideration of a $60,000 payment to him, “with control of any litigation left to INA to the extent of its $60,000”; that the pro rata liability clauses in both fire insurance contracts are identical; that “with full knowledge of the existence of prior insurance or a dispute concerning whether or not said prior insurance of the Fire Insurance Exchange was in force and effect when the Insurance Company Of North America binder was written”, INA, through its authorized general agent, waived its right to refuse to write the binder on December 17, 1971; that the coverage set forth in the binder constituted valid and collectible insurance at the time of Burks’ fire loss; and that INA is es-topped to deny that its coverage was in force and effect at the time of the loss.

Based upon the verdict, and the stipulation that the restaurant contents loss was $29,799, and the conclusions made by the court, judgment was rendered that Burks recover $98,000 from F.I.E., and that F.I.E. have contribution from INA in the amount of $30,000, “representing [INA’s] pro rata share of Five-Thirteenths (Visths) of Seventy-eight Thousand ($78,000.00) Dollars partial damage to the Burks’ building,” and in the amount of $9,933 “representing [INA’s] pro rata share of One-Third (⅛) of the Twenty-nine Thousand Seven Hundred Ninety-nine ($29,799.00) Dollars total loss to the building contents.” Upon these awards, further orders were made allowing interest on Burks’ recovery from F.I.E. from the date of his loss, and allowing interest on F.I.E.’s recovery from INA from the date of judgment, and taxing the court costs ⅝ to F.I.E. and ⅜ to INA.

Only INA appeals. INA states in its brief that F.I.E. has fully satisfied the judgment in favor of Gene Burks.

F.I.E. is not entitled to contribution from INA, and the court’s judgment in this respect is erroneous. F.I.E. and INA did not share a common liability toward Burks; their obligations were separate and independent. They were not coinsurers. This is manifested by the pro rata liability clauses in their policies. The controlling rule is set forth in Traders & General Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142, 148 (1943), as follows:

It is the general rule that, if two or more insurers bind themselves to pay the entire loss insured against, and one insurer pays the whole loss, the one so paying has a right of action against his coinsurer, or coinsurers, for a ratable proportion of the amount paid by him, because he has paid a debt which is equally and concurrently due by the other insurers. On the other hand, it is also the general rule that, if each of several insurers contracts to pay such proportion of the loss as results from the destruction of the thing insured, as the amount insured by such insurer bears to the whole insurance effected on the thing insured, none of such insurers has any right to contribution from the others, nor will the payment of the whole loss by any of them discharge the liability of the others. This is because in such a case the contracts are several, and independent of each other. 29 Amer.Jur., p. 998, § 333, and authorities there cited. Since each of the two insurance contracts here involved contains a clause confining each insurer’s liability to a proportion of the loss, the rights of these two companies must be governed by the rule that one insurer paying more than his proportionate part cannot recover such excess from the other insurer.

The rule in Hicks was restated and reaffirmed by our Supreme Court in Employers Casualty Co. v. Transport Insurance Co. (Tex.Sup., 1969), 444 S.W.2d 606.

INA’s first and seventh points of error are sustained. That part of the judgment awarding Burks a recovery against F.I.E. is not in question and is, of course, affirmed. Those parts of the judgment allowing F.I.E. a recovery against INA are reversed, and judgment is here rendered that F.I.E. take nothing on its third-party claim against INA. All costs of the trial and this appeal are taxed against F.I.E. INA’s remaining complaints become immaterial with these modifications of the judgment.

Modified and affirmed.


author: ROBINSON, Justice.

text:
    HORACE MANN MUTUAL INSURANCE COMPANY, Appellant, v. ESTATE of Earl L. ANDRESS, Deceased, and Elsye Andress, Appellees.
    No. 8505.
    Court of Civil Appeals of Texas, Amarillo.
    June 16, 1975.

      Evans, Pharr, Trout & Jones, Lubbock, Charles B. Jones, Lubbock, for appellant.
    Garner, Boulter, Jesko & Purdom, Lubbock, Thomas J. Purdom, Lubbock, for ap-pellees.
   ROBINSON, Justice.

Judgment on the jury’s verdict was rendered for plaintiffs, the Estate of Earl L. Andress, Deceased and Elsye Andress, for benefits under an insurance policy providing coverage in the event of the death of the insured resulting directly and independently of all other causes from bodily injury caused by accident and sustained while in an automobile. Defendant, Horace Mann Mutual Insurance Company, appeals. Affirmed.

Defendant claims that the death of Earl L. Andress was due to a heart attack and by no evidence and insufficient evidence points of error challenges the submission to the jury of Special ■ Issue No. 1 and the jury’s response to that issue. The issue and the jury’s answer are as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the death of Earl L. Andress on January 1, 1973, resulted, directly and independently of all other causes, from bodily injury, if any, caused by the automobile accident of January 1, 1973?
Answer “We do” or “We do not.”
Answer: We do
“In connection with .the foregoing Special Issue you are insructed that death resulting from accidental bodily injury directly and independently of all other causes occurs when the death is the reasonable and natural consequence of accidental bodily injury and but for which such death would not have occurred. No other causes may be joint, contributing or concurring causes. However, such death can occur from accidental bodily injury directly and independently of all other causes even though disease or disorder may have been present if such disease or disorder is so remote in the scale of causation or dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death in question.”

Plaintiff had the burden of proving that the death of Earl Andress resulted directly and independently of all other causes from bodily injury sustained in the automobile accident in question. The instruction given by the trial court correctly sets out the meaning of the phrase “directly and independently of all other causes” when used in accident insurance policies. Stroburg v. Insurance Company of North America, 464 S.W.2d 827 (Tex.1971); Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110 (Tex.1965); Pyramid Life Insurance Company v. Alexander, 337 S.W.2d 813 (Tex.Civ.App. — Texarkana 1960, writ ref’d n. r. e.); Commonwealth Casualty & Ins. Co. v. Laurence, 223 S.W.2d 337 (Tex.Civ.App. — Fort Worth 1949, n. w. h.).

In determining whether the evidence raised the issue for submission to the jury, the evidence must be viewed in the light most favorable to the party with the burden of securing the findings, disregarding contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Tripp v. West Texas Utilities Company, 461 S.W.2d 224 (Tex.Civ.App. — El Paso 1970, writ ref’d n. r. e.).

The statement of facts includes evidence of the following facts: On January 1, 1973, Earl L. Andress loaded some wood from an old fence into his pickup. There was no indication that he had overexerted himself by this activity. As he drove towards his home he was observed as he leaned over in his pickup to the right. The pickup went over the curb and struck a mail box. As he went over the curb, he raised up. After the initial impact with the mail box, the pickup proceeded 110 feet across the parking lot and came into collision with one ear knocking it sideways into a pickup. That pickup was knocked sideways into another car. The outside mirror on the left side of the Andress pickup was left at the mail box. The windshield of Mr. Andress’s pickup was broken and the dash was caved in just under the broken windshield. The photographs of the vehicles, which were introduced in evidence, as well as the testimony, show a severe impact. Immediately, following the collision, Mr. Andress was found lying face down on the floor board of the pickup. One of his shoes was off. He had a large bruise over the nose, two smaller bruises over his left eye and a large bruise over the upper right side of his forehead. There was a bruise on his chest about the size of a fist near the center of the sternum. He was still breathing faintly when the police arrived shortly after the collision, but was dead on arrival at the hospital. The family asked for a full autopsy after the body was embalmed and after the funeral. When told that it was too late for a full autopsy, they authorized a cranial autopsy. The autopsy report showed swelling of the brain which, together with the multiple bruises on the head, was compatible with a degree of cerebral concussion. In the opinion of the pathologist the head injuries could. contribute to death, but were not sufficient to cause death.

The evidence shows that Mr. Andress was a physically active man who cut trees regularly for himself and other people. In 1967, he went to his family doctor, Dr. Wallace Hess, for treatment of high blood pressure. Dr. Hess saw Mr. Andress last on May 15, 1971, about a year and a half before his death, at which time Mr. Andress was free from symptoms and his blood pressure was normal. Mr. Andress continued to take the medicine given him by Dr. Hess up to the day of his death. He had no dizziness, heartburn, or other complaints. Dr. Hess testified that while hypertension is one factor that predisposes to heart attack, it does not by itself, make a heart attack likely.

Dr. Hess was the only doctor who testified. After being qualified as a medical expert, he was asked to asssume facts in a lengthy hypothetical question outlining Mr. Andress’s medical history, the sequence of events leading to the collision, the nature of the damage to the vehicle, and the condition of Mr. Andress’s body following the collision. Asked to assume those facts and state his opinion based on reasonable medical probability as to the cause of death of Earl L. Andress, directly and independently of all other causes, Dr. Hess stated, “It is my opinion that he died accidentally from injuries received.” He also testified that it was possible, but not probable, that Mr. Andress had had a heart attack.

No objection was made to the hypothetical question as it was finally asked, and there was no objection to the answer to that question. Defendant does not now challenge the evidentiary support for the facts as stated in the hypothetical question but contends that Dr. Hess’s opinion was derived from speculation and conjecture, assumed facts not in evidence, covered matters not the proper subject of expert testimony, invaded the province of the jury, and was based on impermissible inferences of fact unsupported by any competent evidence.

We overrule those contentions. Both the opinion that Mr. Andress did not have a heart attack and the opinion that his death was caused by injuries received in the collision were the proper subjects of expert medical testimony. Community Life & Health Insurance Co. v. McCall, 497 S.W.2d 358 (Tex.Civ.App. — Amarillo 1973, writ ref’d n. r. e.); Watson v. State, 149 Tex.Cr.R. 643, 197 S.W.2d 1018 (1946). The opinion of the expert upon a proper subject of expert testimony is admissible even though it is on the ultimate issue of fact to be determined by the jury so long as, in giving his opinion, he does not state a conclusion necessarily based upon an inference which he is unauthorized to make. Adamson v. Burgle, 186 S.W.2d 388 (Tex.Civ.App. —San Antonio 1945, writ ref’d w. o. m.). In the case before us, in response to a direct question concerning the basis for his opinion, Dr. Hess testified that it was based on the question asked by the attorney and on reasonable medical probability. We conclude that there was evidence which required the submission of the issue in question to the jury.

After a consideration of all of the evidence including that opposed to the verdict as well as that favoring the verdict, we conclude that the jury’s answer to the issue is sufficiently supported by the evidence and is not against the great weight and preponderance of the evidence. Each of appellant’s points of error is overruled.

The judgment of the trial court is affirmed.


author: COULSON, Justice.

text:
    WOODS EXPLORATION AND PRODUCING COMPANY, INC., et al., Appellants, v. ARKLA EQUIPMENT COMPANY, Appellee.
    No. 1062.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 4, 1974.
    Rehearing Denied Feb. 12, 1975.
    Writ of Error Granted May 7, 1975.

      Morris L. Pepper, Houston, for appellants.
    Maynard A. Powell, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   COULSON, Justice.

This is a summary judgment case.

Appellee, Arkla Equipment. Company brought suit on notes executed by Woods Exploration and Producing Company and Eastern Pipe Line Company as principals, with Stanley C. Woods as partial guarantor. In answer, the defendants pled the statute of limitations and made a general denial. Appellee moved for summary judgment under Texas Rules of Civil Procedure, rule 166-A, supporting its motion with an affidavit made by C. L. Eldred and attached copies of the notes and guarantee. The defendants filed no objections or contravening affidavits. The trial court entered a summary judgment against all three defendants. The summary judgment is final against Woods Exploration and Producing Company and Eastern Pipe Line Company since only Stanley C. Woods has perfected an appeal.

The first point of error assigned by the appellant challenges the sufficiency of the affidavit relied upon by the trial court in granting the summary judgment. The affi-ant, C. L. Eldred, does not state his relationship to the appellee corporation, nor does he establish a basis for his knowledge of the events leading to this lawsuit. He states that he does have personal knowledge of every statement made and that he is fully competent to testify to all matters stated. The appellant contends that the affidavit is insufficient because it does not show affirmatively that the statements were made on the personal knowledge of the affiant or that he was competent to testify to the matters stated. Appellant argues that the affiant’s naked statements asserting knowledge and competency are conclusory in nature and that the case comes under the rule of Box v. Bates, 346 S.W.2d 317 (Tex.Sup.1961). There the Supreme Court held that when factual statements made in affidavits were obviously based on hearsay, they would be insufficient to support a summary judgment.

In Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.Sup.1963), the Supreme Court distinguished the Bates decision and held that objections which were purely formal “may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” This case falls into the category described in Youngstown Sheet and Tube Co., supra.

The defects complained of in this case are formal rather than substantive. If the appellant had serious questions about the veracity of the affiant he should have raised those objections immediately to enable the trial court to consider them when it ruled on the motion for summary judgment. Maberry v. Julian, 479 S.W.2d 770 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.); Hall v. Fowler, 389 S.W.2d 730, 733 (Tex.Civ.App. — Dallas 1965, no writ). Box v. Bates, supra, applies in those cases where the factual statements made in the affidavit are obviously based upon hearsay or where the statements are conclusions of law rather than factual in nature. The objection here is that no proper foundation for the statements was made rather than that the statements themselves were incompetent as evidence. Nor does Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.Sup.1972) apply in the case before this Court. In Hidalgo the affidavit was deficient because the affiant merely asserted that “valuable consideration” had passed in a transaction aimed at establishing Surety Savings and Loan Association as a holder in due course. The Supreme Court required that the affidavit be more specific as to the details of that transaction and less concluso-ry. The defect was in the substance of the statements relied on by the movant to establish its position as a matter of law. The information contained in the affidavit in the case before this Court is not eonclusory nor is it obviously hearsay.

The second half of the test set out in Youngstown Sheet & Tube, supra, requires that the record show that there are no genuine issues as to any material fact. That requirement is met in this case. The appellant did not affirmatively plead that the obligations had been satisfied through payment or accord and satisfaction as is required by Tex.R.Civ.P. 94. Nor did he deny through verified pleadings that he executed the notes and guarantee sued on as required by Tex.R.Civ.P. 93(h). The only affirmative defense raised by the appellant was the statute of limitations. That defense was shown to be invalid by the information contained on the face of the notes. The affidavit of Eldred was sufficient to show that the obligations were due and that the appellee was the owner and holder of the notes. There being no genuine issue of fact, the trial court properly granted the summary judgment on the notes and guarantee.

The appellant’s second objection to the summary judgment is that a question of fact existed on the issue of attorney’s fees. The notes in question provide that upon default, the makers and their guarantor would be liable for reasonable attorney’s fees “not to exceed ten percent of the amount then owing” on the notes.

The appellant’s objection is well taken. The notes do not by contract give the appel-lee attorney’s fees of ten percent. A question of fact exists on the reasonableness of the attorney’s fees. Himes v. American Home Fence Co., 379 S.W.2d 290 (Tex.Sup.1964); Stanley, Harris, Rice & Associates v. Lewis, 410 S.W.2d 533 (Tex.Civ.App. — Dallas 1966, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App. — Houston [14th Dist.] 1971, no writ).

The question of reasonable attorney’s fees is severed and is remanded for trial, but only as to Stanley C. Woods. The summary judgment is in all other provisions affirmed.

Affirmed in part, and reversed and remanded in part.

CURTISS BROWN, J., not participating.


author: AKIN, Justice. .

text:
    Earl HASSLER, Appellant, v. TEXAS GYPSUM COMPANY, INC., Appellee.
    No. 18597.
    Court of Civil Appeals of Texas, Dallas.
    June 5, 1975.

      Paul W. Nimmons, Jr., Sewell, Junell & Riggs, Houston, for appellant.
    Joseph H. McCracken, III, Dallas, for ap-pellee.
   AKIN, Justice. .

Texas Gypsum Company, Inc. sued Security Drywall, Inc. and Earl Hassler. individually, on a sworn account under rule 185. The district court entered a default judgment against both defendants jointly and severally. Hassler alone appeals that judgment by writ of error.

We reverse and remand the judgment of the district court as to defendant Hassler for the following reasons: (1) The account attached to the plaintiff’s original petition shows that merchandise was sold to the corporate defendant and not to Hassler; (2) the account as attached to plaintiff’s original petition failed to identify and itemize materials sold and is, therefore, insufficient to establish a prima facie cause of action under rule 185; and (3) since plaintiff’s petition and account failed to comply with rule 185 and the record contains no other evidence, there is no evidence before us to support the trial court’s judgment.

1 Failure of Plaintiff’s Petition and Account to Establish Prima Facie Case Against Hassler

Plaintiff alleges in its petition that Hassler is individually liable on the sworn account to plaintiff. The invoices included in the account attached to the petition, however, reflect that only the corporate defendant Security Drywall, Inc. was a party to the transaction with plaintiff. We hold that where an obligation alleged in the pleading does not conform to the writings attached as the basis thereof, the attached writings rather than the pleading controls. Starlight Supply Co. v. Feris, 462 S.W.2d 608, 609 (Tex.Civ.App. — Austin 1970, no writ); Copeland v. Hunt, 434 S.W.2d 156, 158 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.).

We, therefore, conclude that defendant Hassler was not a party to the open account transaction between plaintiff and Security Drywall, Inc.; hence, Tex.R.Civ.P. 185 does not establish a prima facie case against defendant Hassler. Starlight Supply Co. v. Feris, supra; Copeland v. Hunt, supra; Sampson v. Abco Oil Corp., 476 S.W.2d 430, 431 (Tex.Civ.App. — Amarillo 1972, no writ); Nichols v. Acers Co., 415 S.W.2d 683, 686 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.); Smith v. West Texas Hospital, Inc., 487 S.W.2d 143, 145 (Tex.Civ.App. — Amarillo 1972, no writ).

Here, the invoices and delivery receipts attached to plaintiff’s petition specifically state that the materials were sold to Security Drywall, Inc. The mere fact that Hassler is a corporate officer of Security Drywall, Inc. does not make him liable for the debts of the corporation. Hassler’s signature on three of the six delivery slips indicates only that Hassler verified the deliveries for the corporation on those occasions.

2. Insufficient Description of Goods

A sworn account under rule 185 must show with reasonble certainty the nature of each item, the date and the charge therefor. Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168,169 (Tex.Civ.App.—Houston (1st Dist.) 1970, no writ); Bookstall, Inc. v. John Roberts, Inc., 517 S.W.2d 451, 452 (Tex.Civ.App.—Austin 1974, no writ); Texas Man’s Shop, Inc. v. Nunn-Bush Shoe Co., 401 S.W.2d 716, 718 (Tex.Civ.App.—Corpus Christi 1966, no writ); Becker, Smith & Page, Inc. v. Wm. Cameron & Co., 22 S.W.2d 951, 952 (Tex.Civ.App.—Waco 1929, writ dism’d). A typical invoice made a part of plaintiff’s verified account under rule 185 describes the merchandise sold as follows:

The phraseology “½ TEMPLE REG TE” has no meaning in the English language, and the account contains no explanation of the meaning of this description. It is possible that this language may have some meaning to members of the industry, but there is nothing in this record to indicate such a common understanding.

We hold that these invoices attached as part of plaintiff’s sworn account failed to show with reasonable clarity the type of goods sold. Consequently, plaintiff failed to meet the requirements of Tex.R.Civ.P. 185. An account insufficient on its face as a verified account under rule 185 will not support a judgment by default as against a direct attack by writ of error. Bookstall, Inc. v. John Roberts, Inc., supra; Williams-burg Nursing Home, Inc. v. Paramedics, Inc., supra; Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58 (1952).

8. No Evidence

No statement of facts has been filed in this case, and plaintiff concedes that the only evidence offered in the trial court was the sworn account, which, for reasons already stated, we hold to be insufficient to establish a prima facie case against defendant Hassler. Consequently, we cannot presume that the judgment is supported by any other evidence.

Our holding is limited to the situation where a plaintiff fails to satisfy the requirements of rule 185. Where plaintiff satisfies all requirements of rule 185, the sworn account is taken as prima facie evidence unless the opposing party files a sworn denial. In such a case, no further evidence is needed to support the judgment.

Reversed and remanded.

      . All references are to the Texas Rules of Civil Procedure.


author: McKAY, Justice.

text:
    EVANS ADVERTISING AGENCY, INC., Appellant, v. Randy MORPHEW, dba Aamco Transmissions, Appellee.
    No. 816.
    Court of Civil Appeals of Texas, Tyler.
    May 22, 1975.

      Thorne, Avery & Greer, DeEdward J. Greer, Houston, for appellant.
    Sharp, Ward & Ross, T. John Ward, Longview, for appellee.
   McKAY, Justice.

Evans Advertising Agency, Inc. as plaintiff brought suit against Randy Morphew, dba Aamco Transmissions, defendant, in an action on a sworn account alleging that “goods, wares, merchandise and services” were sold and delivered to defendant at his special instance and request for advertising services. Defendant filed a verified denial, denying that each and every item was just and true and further denying that the items sued for were goods, wares, merchandise or services within the meaning of Rule 185, Texas Rules of Civil Procedure. Plaintiff asked for no alternative relief. Trial was before a jury and at the close of plaintiff’s evidence, the trial court granted defendant’s motion for instructed verdict and entered judgment for defendant. We affirm.

In 1966 defendant obtained a franchise from Aamco Transmissions to operate a transmission repair service in Longview, Texas. As part of the terms of the franchise agreement, which is not in the record, defendant was required, according to his testimony, to take part in an advertising program, and he was thereafter contacted by Evans Advertising and told that it would be handling the placement of his advertising. The record reveals that plaintiff-Evans placed advertising in behalf of the defendant with radio and television stations and then billed defendant on Evans’ own invoices for the cost of the ads. Defendant testified that he never ordered the advertisements from plaintiff and that he never had any contact with any radio or television station. The record does show that defendant paid many of the invoices sent him by plaintiff but that he repeatedly complained that the cost was excessive and must be reduced. There is an exhibit in the record designated “Appointment and Agreement between Mr. Randy Morphew, DBA Aamco Transmissions Shop, 105 Standard, Long-view, Texas (Advertiser) and Evans Advertising Agency, Inc. of Houston, Texas (Agent),” which was never executed by defendant.

Plaintiff brings several points of error which concern the basic questions of (1) whether this suit is properly brought under Rule 185, T.R.C.P., as a sworn account, (2) whether evidence of performance or delivery of services was presented, and (3) whether business records not admitted, should have been admitted to show performance or delivery.

A directed verdict is proper only if there is no evidence to support a necessary issue. McEachern v. Glenview Hospital, Inc., 505 S.W.2d 386 (Tex.Civ.App. — Ft. Worth, 1974, no writ); Lifson v. Dorfman, 491 S.W.2d 198 (Tex.Civ.App. — Eastland, 1973, n. r. e.). In reviewing the validity of an instructed verdict, all the evidence and inferences therefrom must be viewed in the light most favorable to the losing party. Thomas v. T. C. Bateson Co.,,437 S.w.2d 386 (Tex.Civ.App. — Dallas, 1969, n. r. e.).

Rule 185 is a rule of procedure with regard to the evidence necessary to establish a prima facie case and is not the basis for any cause or causes of action. Yahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ.App. —Corpus Christi, 1974, no writ); Wilkinson v. Texas Employers Insurance Assn., 444 S.W.2d 222 (Tex.Civ.App. — San Antonio, 1969, no writ). Where the defendant files a verified denial of each item in plaintiff’s claim, the probative force of the sworn account is destroyed, and plaintiff must prove its claim without the aid of Rule 185. Vahlsing Christina Corp. v. Ryman Well Service, Inc., supra.

The rule provides that a suit on a sworn account may be brought, among other reasons, for personal services rendered. Plaintiff contends that the service it rendered was the “physical labor of placing the ads with the various news media” and that its various business records consisting of a ledger sheet and invoices not admitted by the court should have been admitted to show the performance of this service.

The Supreme Court in Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962), held that advertising service performed by Fort Worth Press newspaper was not personal service. This holding was reaffirmed in Tenneco Oil Company v. Padre Drilling Co., 453 S.W.2d 814 (Tex.1970) with reference to the meaning of the words “personal services” as used in Art. 2226, Vernon’s Ann.Tex.Civ.St. While these cases were concerned with the recovery of attorney’s fees, we believe the languáge defining personal service to be applicable to sworn account suits under Rule 185. In Van Zandt the court said personal service was ‘economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill,’ and ‘that the “act” done for the benefit of another is done personally by a particular individual.’ Plaintiff relies on Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir.1974) for the proposition that the services rendered under Rule 185 are not required to be personal. We think that case is not in point here inasmuch as the court there interprets an amendment to Art. 2226, which omits the word “personal” with respect to services for the recovery of attorneys’ fees. The provisions of Rule 185 are still couched in the terms of “personal service rendered.” Whether the services sued for here are within the scope of personal services as required by Rule 185 is questionable. However, even assuming the alleged services to be personal services under Rule 185, we must nevertheless affirm the action of the trial court.

A suit on a sworn account under Rule 185 presupposes a contract performed by one party who sues the other party for performance of his obligations, but it does not apply to or cover transactions between parties who were strangers to the transaction. Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App. — Corpus Christi, 1968, n. r. e.). As previously stated, the language of the rule itself speaks in terms of “personal service rendered.” (Emphasis added.) Therefore in such a suit, evidence must be presented to show performance or rendition of services.

The service performed for which plaintiff sues is the placing of ads with various news media. However, the suit was brought for the cost of the actual advertising done. There is no evidence in the record to show that this advertising was actually done or performed by any of the media. We believe such proof to be an essential and inseparable part of plaintiff’s cause of action in this suit. Invoices or statements from plaintiff, copies of which are attached to its pleading, are not sufficient to show that personal services were rendered to defendant without there being proof to show that the advertising was actually produced by the radio and television stations.

Plaintiff contends that the trial court’s refusal to admit its business records consisting of a ledger sheet and invoices, was error under Art. 3737e, V.A.T.S. These records would show the existence of an account with the plaintiff, but they, standing alone without proof that the advertising was actually done, would not be sufficient to show proof of performance or rendition of service. Any error of the trial court in refusing their admission would be harmless. Rule 434, T.R.C.P.

The sworn denial of defendant, denying the justness of the sworn account, had the effect of neutralizing' any sworn account case plead by the plaintiff and cast the burden on the plaintiff to prove his case at common law. Wilkinson v. Texas Emp. Ins. Assn., supra; Reader’s Wholesale Distributors, Inc. v. Handel, 410 S.W.2d 803 (Tex.Civ.App. — Waco, 1966, no writ). The plaintiff’s failure to prove performance of personal services foreclosed any possible recovery in this suit. The trial court was therefore correct in rendering a directed verdict.

We have considered all of appellants’ points and it is our view that they do not present reversible error. Rule 434, T.R.C.P.

Judgment affirmed.