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sw2d_481/html/0686-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "GARDNER, Commissioner. REED, Judge",
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DEPARTMENT OF PARKS, Commonwealth of Kentucky, Appellant, v. Mary Maude KINSLOW et al., Appellees.
Court of Appeals of Kentucky.
June 9, 1972.
Walter Winn Davis, Nunn, Travis & Ropp, Glasgow, for appellant.
H. Jefferson Herbert, Jr., Wilson, Herbert, Garmon & Gillenwater, Glasgow, for appellees.
GARDNER, Commissioner.
Mary Maude Kinslow, widow of Oren Kinslow, was awarded compensation based on her deceased husband’s employment with the Department of Parks. The circuit court upheld the award and the Department of Parks appeals. We reverse.
Oren Kinslow worked at the Barren River State Park from April 16, 1969, to September 30, 1969, and again from April 1, 1970, to June 29, 1970, when he was killed in an automobile accident while he was on the job. The questions raised on appeal are (1) was Kinslow in seasonal occupation so that his average weekly wage must be considered to be one-fiftieth of his total wages for the 12 months immediately preceding his death, and if it was not a seasonal occupation, (2) was part of his pay overtime so that that part must be excluded in determining his average weekly wage?
Barren River State Park was open the year around, but from October until April the services were drastically curtailed. The record does not disclose the percentage of employees who were released during the off season. Kinslow’s job was general maintenance work and garbage pickup. He knew he was being employed only from April to October. The superintendent of the park testified that Kinslow was classified as a seasonal employee. He was unemployed from October 1969 to April 1970, although he did a little work on his wife’s farm for which he received no pay.
It is provided by KRS 342.140(2):
“In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one-fiftieth of the total wages which the employee has earned from all occupations during the twelve calendar months immediately preceding the injury.”
The employer contends that Kinslow was a seasonal worker and therefore his wages for the 12 preceding months should be divided by 50, which would give him an average weekly wage of $33.92. It insists that the very nature of the park is that of providing summer recreation facilities and services which are seasonal.
The claimant counters by saying that the statute does not refer to seasonal workers but to “ * * * occupations which are exclusively seasonal and therefore cannot be carried on throughout the year * * *.” (our emphasis) He argues that the occupation involved is that of general maintenance and garbage pickup, which not only can be but must be carried on throughout the year and, therefore, is not seasonal. He cites no authority upholding his view nor does the employer present us with authority supporting its view that Kinslow’s occupation was exclusively seasonal. The employer attempts to bolster its contention by pointing out the incongruity existing under the board’s award whereby the compensation payments are more than Kinslow’s wages were for the year.
The statute does not define seasonal occupation and case law on the subject is fragmentary and inconclusive. In Damm v. Schreier Contracting Co., 235 App.Div. 478, 257 N.Y.S. 705 (1932), the court held that a highway construction laborer was engaged in seasonal work since the work was not carried on during winter months. In Hogan v. Onondaga County, 221 App.Div. 636, 225 N.Y.S. 57 (1927), however, where the county, in carrying on highway construction work, utilized the winter months to manufacture road materials and to repair machinery and equipment, the court held the county was not engaged in a seasonal occupation, although its main work was carried on during summer months. In support of claimant’s position is the case of Froehly v. T. M. Harton Co., 291 Pa. 157, 139 A. 727 (1927). There a woman dishwasher was injured while employed in an amusement park during the summer months. Under a statute similar to Kentucky’s, the court ruled that dishwashing was not a seasonal occupation although the amusement park was in operation only three months out of the year. The court pointed out that the clatter of dishes being washed would continue every day throughout years to come. (Perhaps the time draws near when there will be no more women dishwashers and the clatter of dishes will give way to a rumbling drone of the electric dishwasher.) The Pennsylvania court distinguished between the over-all operation of the amusement park and the individual work activities. In doing so the court mentioned that the park owners and operators were engaged in a seasonal occupation but the individual dishwasher was engaged in an occupation that must be carried on throughout the year in innumerable places.
It appears to us that the broad definition of seasonal occupation as given by the Pennsylvania court is fraught with the danger of extending the meaning of seasonal occupation so far that it becomes meaningless. A classic example of a seasonal occupation is that of fruit picking in California. Yet, under the tenor of the Froehly case, since fruit picking is being carried on somewhere in the United States every day throughout the year, the migrant worker is not engaged in a seasonal occupation. We cannot accept this broad analysis. The very existence of the Barren River State Park depends on the patronage of tourists during the period from late spring to early fall. In the popular sense, this is seasonal. It would not be surprising to see posted in front of various facilities of the park the words, “Closed for the Season.” Everyone would know what that would mean.
The overriding purpose of workmen’s compensation is to give recompense to an injured employee (or in this instance the widow of the deceased employee) for the loss of earning capacity due to a work-connected accident, but there are limitations. The apparent intent of the legislature in enacting KRS 342.140(2) was to reduce the amount of recovery if the employment was with a business carried on naturally only for a particular season of the year. The seasonal worker should not receive the same compensation as that of a nonseasonal worker. In the present instance Kinslow remained idle, so far as work in compensation-covered employment was concerned, six months out of the year. Under the board’s award claimant would receive as compensation $2438 for 12 months, while Kinslow earned only $1829.10 for the 12 months before the accident. It might be argued that the same result (that benefits could exceed earnings) could arise where a person without previous earnings worked for a short while in nonseasonal employment when he was involved in an accident. That is true. But the compensation law clearly permits that. Valid complaint cannot be made that a seasonal worker has no way to establish a base pay equal to a nonseasonal worker because all of the seasonal worker’s wages — those earned in seasonal work as well as those earned in regular employment — for twelve months next before the injury or death are used to determine the average weekly wage. KRS 342.140 (2).
Having decided that Kinslow was engaged in a seasonal occupation, we do not get to the question of whether part of Kins-low’s wages was overtime pay as provided in KRS 342.140(1) (d).
The case should be remanded to the board for an adjudication of the amount of compensation according to KRS 342.140(2).
Judgment reversed.
EDWARD P. HILL, Jr., OSBORNE, PALMORE and NEIKIRK, JJ., concur.
REED, J., dissents.
REED, Judge
(dissenting).
The statute, KRS 342.140(2), by its express language applies only to occupations which are exclusively seasonal. The general maintenance employees and garbage pickup men whom I have observed impel me to the conclusion that these occupations are certainly not exclusively seasonal. Nothing in the record indicates otherwise. I will freely concede that the type of garbage picked up may vary by seasons, and it’s better to paint in the spring than in the dead of winter, but garbage is always there to be gathered, whether it be a discarded Christmas tree or the last remnants of ears of summer corn. General repairing, at least in this state, is an occupation pursued during the entire year.
To stretch the statute to deny full compensation to the injured employee in this case, the court simply amends the statutory language so that it now reads “employees” instead of “occupations.” The word “exclusively” is stricken and any employee whose employer prescribes a duration of employment measured by a season will have his workmen’s compensation benefits for disability cut in half if the court remains consistent. A brain surgeon hired to work for a clinic at a summer resort cannot receive but half compensation if both his hands are mangled in a work-connected accident to such an extent that they are rendered useless.
This result, in my opinion, guts the express legislative policy requiring liberal construction in favor of the injured employee, and it is also, in my view, a clear judicial invasion of the legislature’s province under the guise of statutory construction. The simplicity of the language of the legislation in this particular instance actually leaves nothing to construe. I would affirm the judgment, and I therefore respectfully dissent. |
sw2d_481/html/0755-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DYER, Chief Justice. HUMPHREYS, Justice",
"license": "Public Domain",
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Earl WINTERS, Appellant, v. Sarah C. MAXEY, Appellee. Gloria Yvonne WINTERS, a minor, by father and next friend, Earl Winters, Appellant, v. Sarah C. MAXEY, Appellee.
Supreme Court of Tennessee.
June 5, 1972.
Branstetter, Moody & Kilgore, Nashville, for appellants.
B. J. Boyd, Ashland City, for appellee.
OPINION
DYER, Chief Justice.
The sole question for determination in this case is whether the lex loci delicti doctrine as applied in Tennessee should be continued or whether it should be repudiated in favor of a modern theory.
The plaintiff and defendant are now and were, prior to the accident giving rise to this suit, citizens and residents of Chea-tham County, Tennessee. Defendant invited plaintiff to accompany her in defendant’s automobile for a trip to Florida where they would have a short vacation and then return to Cheatham County, Tennessee. In the course of this trip, while driving in Chilton County, Alabama, defendant lost control of her automobile striking some parked construction equipment, resulting in injuries to plaintiff.
Plaintiff filed this suit against defendant in Cheatham County, Tennessee, alleging only ordinary negligence as causing her injuries and also alleging the law of Tennessee allowing recovery on showing of ordinary negligence would apply to the facts of this case. The parties here stipulated Alabama has a guest statute which, if Alabama law applies, would require a showing of willful or wanton conduct on the part of defendant before plaintiff could recover. The trial judge applying our lex loci doctrine has dismissed the case, resulting in this appeal by plaintiff.
In regard to torts the rule has long prevailed in Tennessee that absent public policy the law of the place where the tort occurred would control. East Tenn., V. & G. R. Co. v. Lewis, 89 Tenn. 235, 14 S.W. 603 (1890); Brown v. Hogan, 14 Tenn.App. 251 (1931); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934); Kennard v. Illinois Cent. R. R., 177 Tenn. 311, 148 S.W.2d 1017, 134 A.L.R. 770 (1941); Sloan v. Nevil, 33 Tenn.App. 100, 229 S.W.2d 350 (1949); Schenk v. Gwaltney, 43 Tenn.App. 459, 309 S.W.2d 424 (1957); Glover v. Glover, 44 Tenn.App. 712, 319 S.W.2d 238 (1958); Patterson v. Smith, 57 Tenn.App. 673, 424 S.W.2d 204 (1966).
The public policy exception to this rule is where the law of the jurisdiction where the tort occurred is against good morals or natural justice, or for some other reason, its enforcement would be prejudicial to the general interests of our citizens. Whitlow v. N., C. & St. L. Ry. Co., 114 Tenn. 344, 84 S.W. 618 (1904). This Alabama guest statute does not offend good morals or justice nor would its enforcement be prejudicial to the general interests of our citizens.
The lex loci doctrine had its conceptual foundation in the vested rights doctrine, namely that the right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. Such has been the rule in most all jurisdictions in this country until in recent years some jurisdictions have rejected the rule in favor of what is designated as the modern rule.
New York in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963), repudiated the lex loci rule long prevailing in that state in favor of the rule designated as the “dominant contacts” rule.
Babcock involved New York residents, the plaintiff as a guest passenger in the defendant-host’s automobile on a short trip from New York to Ontario and return. During the course of the trip, while in Ontario, defendant apparently lost control of the automobile striking a stone wall, resulting in injuries to plaintiff for which suit was brought in New York. Under the laws of New York such an action was maintainable, but in Ontario such an action was, in effect, prohibited. In holding the law of New York should apply the court did so upon the premise justice, fairness and the best practical results would be achieved in tort cases having multi-state contacts by giving controlling effect to the law of the jurisdiction, which, because of its relationship or contact with the occurrence or parties, has the greatest concern with the specific issue raised in the litigation.
The specific issue in Babcock resulting from the multi-state contacts was the application or non-application of Ontario’s guest statute. In applying this rule of “dominant contacts” resulting in the holding New York law would apply, the court did so on the grounds the parties were New York residents as a trip that began in New York and was to end in New York. The court noted the only contact Ontario had with the parties was the fact the accident occurred in Ontario itself, a fortuitous event.
A later New York case of Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965), involving the same issue as Babcock v. Jackson, supra, the court applying the “dominant contacts” rule held the law of the jurisdiction where the tort occurred would control.
The Dym case involved two New York domiciliaries attending summer school in Colorado. While in Colorado the guest plaintiff went on a short trip in the host-defendant’s automobile, during which an accident occurred, resulting in plaintiff’s injuries for which suit was brought in New York. The court finding Colorado law would apply said: ■
Of compelling importance in this case is the fact that here the parties had come to rest in the State of Colorado and had chosen to live their daily lives under the protective arm of Colorado law. Having accepted the benefits of that law for such a prolonged period, it is spurious to maintain that Colorado has no interest in the relationship which was formed there.
A year after Dym v. Gordon, supra, the New York courts decided Kell v. Henderson, 26 A.D.2d 595, 270 N.Y.S.2d 552 (1966). In the Kell case all of the parties were residents of Ontario on an automobile trip from Ontario with the intention the trip end in Ontario. During the course of this trip an accident occurred in New York, resulting in injuries to the guest plaintiff for which suit was brought against the host-defendant in New York. On the issue of whether New York or Ontario law applied, it appears this is the exact factual situation in reverse as was in Babcock v. Jackson, supra, and the law of Ontario would apply since the only contact New York had with the matter was that the unintentional tort, by happenstance, occurred in New York.
The court in Kell rejected the argument. The case was controlled by Babcock v. Jackson, supra, and said:
Babcock was not intended to and did not change the established law of the State of New York that a guest has a cause of action for personal injuries against a host in an accident occurring in this State whether those involved are residents or domiciliaries of this State or not.
While the Kell case is not an opinion of the highest court in New York, it does cause us to wonder if the rule in Babcock v. Jackson, supra, is to be applied both ways.
Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965), repudiated the lex loci rule in favor of the dominant contacts rule.
Wilcox involved a husband and wife, residents of Wisconsin, who were involved in an automobile accident resulting in injuries to the wife, which accident occurred in Nebraska when the parties were returning to Wisconsin from a vacation. The wife brought suit against the husband in Wisconsin. Nebraska had a host-guest statute requiring the proof of gross negligence for recovery, while Wisconsin allowed recovery on proof of ordinary negligence. This variance in the laws of these states made the conflicts question. The court held under these facts Wisconsin had the more “dominant contacts” and the law of Wisconsin should apply.
In Wilcox the court in repudiating the lex loci rule was impressed by the fact the place of occurrence of an unintentional tort is fortuitous and it is by mere happenstance that the lex loci state is concerned at all.
The method of analysis of the “dominant contacts” as applied by the Wisconsin court in Wilcox v. Wilcox, supra, is different from the method adopted by New York in Babcock v. Jackson, supra. In Babcock the court considered as the appropriate method that given in Restatement, Conflicts of Law § 379, which suggests a quantitative approach and lists important contacts, such as (1) place of injury, (2) place of conduct, (3) domicile, (4) nationality, (5) place of incorporation and place of business, and (6) the place the parties relationship is centered. New York examines these contacts in order of their importance on an equal plane between the state involved. The Wisconsin court begins with a rebuttable presumption in favor of the forum state and utilizes the contacts in order of their importance to remove the presumption.
The Wisconsin court in Conklin v. Horner, 38 Wis.2d 468, 157 N.W.2d 579 (1968), was presented with a very similar factual situation as was presented in Wilcox v. Wilcox, supra. In Conklin the parties involved were all residents of Illinois who began an automobile trip in Illinois with the intention the trip would end in Illinois. While traveling in Wisconsin an accident occurred, resulting in injuries to the plaintiff guest who brought suit in Wisconsin against the host-defendant. The conflicts question was whether to apply the Illinois law requiring proof of gross negligence or the Wisconsin law requiring proof of only ordinary negligence. The court, by majority opinion, held Wisconsin law would apply.
Under these facts it would appear, as the minority opinion points out, the Conklin case would be controlled by Wilcox v. Wilcox, supra, and the law of Illinois applied. The parties in Conklin, as in Wilcox, were all residents of one state where the journey began and was to> end, and by happenstance an accident occurred in another state.
The majority opinion in Conklin noted there was one factual difference between the Conklin case and the Wilcox case; that is, in the Wilcox case the tort occurred in Nebraska, and the forum was in Wisconsin, while in the Conklin case the tort and the forum were both in Wisconsin. Applying its analysis method of beginning with a rebuttable presumption in favor of the forum state, the majority found both Illinois and Wisconsin had substantial contacts and the law of either state could apply. The majority opinion then proceeded to examine what is termed “choice influencing consideration” and in doing so came to the conclusion the specific Illinois law involved was enacted for the protection of Illinois citizens in Illinois and was not so vital a policy as Wisconsin’s law which allows recovery in such cases in order to induce safe driving on the highways. The majority also found the Wisconsin law to be the “better law” to apply under the circumstances.
There are a number of other states that have repudiated the lex loci rule, but we do not deem it necessary to go into an analysis of these cases. Our research indicates the following states have adopted some form of “analysis of contacts” rule in application of conflict of law in tort cases. These states are Alaska, Arizona, California, District of Columbia, Indiana, Iowa, Kentucky, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, and Wisconsin.
In our examination of this matter we are convinced that there is one very strong reason we should not repudiate the present rule in Tennessee. In Wilcox v. Wilcox, supra, the court in adopting the dominant contacts rule said:
On a case by case basis generalizations will soon become apparent and will take its place as a guide to the future to provide a uniform common law of conflicts. 26 Wis.2d at 635, 133 N.W.2d at 417 (Emphasis supplied)
In our examination of cases using the “dominant contacts” rule, we have not been able to discern they provide any “uniform common law of conflicts” to take the place of the uniform rule of lex loci delicti. As an example, in the cases we have used in this opinion under the method of analysis used in New York in a given factual situation, one result could be reached, while under the method of analysis used by Wisconsin a different result would be reached.
In Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969), the court was faced with this issue of repudiating its long standing rule of lex loci in favor of the “dominant contacts” rule. The court in rejecting the argument to change the rule said:
That rule [lex loci] has been settled unanimously, understood thoroughly, and thought to be as fair to all affected thereby as man might reasonably conceive unless, of course, we are to make equity causes out of law actions. In a word, the law applicable to the presently reviewed question is the rule stare decis-is; a rule all of us are supposed to follow save only when persuasion leads to abiding conviction that some undeniably better rule is available for proper super-session. There is no such persuasion, since the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast — and occasionally unjust it is true — rule that the law of the place of the wrong is applied when the forum is a Michigan court. 382 Mich, at 516, 170 N.W.2d at 139.
The judgment of the lower court is affirmed.
CRESON and McCANLESS, JJ., and JENKINS, Special Justice, concur.
HUMPHREYS, J„ dissents.
HUMPHREYS, Justice
(dissenting).
I respectfully dissent. Under the recognized exception to the lex loci delicti rule, that foreign laws contrary to the public policy of this State will not be enforced here, we should hold that the Alabama guest statute does not apply in Tennessee.
The majority opinion recognizes the public policy exception, citing Whitlow v. N., C. & St. L. Ry. Co., 114 Tenn. 344, 84 S.W. 618 (1904), and makes use of the definition of public policy to be found therein. This definition is that a foreign law will not be enforced that is against good morals or natural justice, or that for some other reason, the enforcement of it, would be prejudicial to the general interest of the citizens of the State. Hardly pausing for a breath, the majority opinion proceeds to declare that the Alabama guest statute is not against good morals, is not against natural justice, and that its enforcement would not be prejudicial to the general interest of the citizens of the State. With this conclusion I must disagree.
I disagree, because both good morals and natural justice demand that one who carelessly injures another in the operation of a motor vehicle, which, while not a dangerous instrumentality by legal definition, is in its operation fraught with such danger that the operator who fails to exercise ordinary care, should be required to respond in damages.
While I recognize the right of Alabama to treat -its own citizens in the way it has, I do not think this state is obligated to enforce such a statute in an action between two of its citizens who were only casually and incidentally in Alabama, under circumstances that do not indicate they even knew of the guest statute, much less intended to be bound thereby. And this is particularly true since Alabama has no interest whatsoever in the enforcement of its regressive law in Tennessee.
Not only is this against natural justice and good morals, it is contrary to the express public policy of this State. The General Assembly has had before it the example of a few other states in limiting automobile host liability to wilful or wanton negligence, and, (unless my memory dis-serves me, there is no index or digest where I can look this up), bills have been introduced in the General Assembly in the past to enact this guest rule into law in this State. But, whether I am right in my recollection or not, the proposition remains that with the example of other states, and with the power to enact such a law, the General Assembly has not done so. This non-action amounts to an election by it to continue under the better rule of liability. And anything that is contrary to that rule, I submit, is contrary to the public policy of this State.
In sum, we should hold that the Alabama law limiting liability is contrary to the better Tennessee law on the subject and will not be enforced by our courts as against the public policy of this State.
I know that a great deal has been written in a number of opinions in other states on the conflict of law question which has arisen in this case. And I find that a general conflict of law principle thereon has been stated in Restatement, Conflict of Laws, § 145, as follows:
Ҥ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include :
(a) the place where the injury occurred
(b) the place where the conduct causing the injury occurred
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.”
There is also an interesting discussion of this subject in 21 Vanderbilt Law Review, March 1968, at p. 266; and an annotation in 29 A.L.R. 3d, p. 603. And, while I think the adoption of a general rule such as that in Restatement is inevitable as our society grows more mobile and the interest of the State in its citizens ever increases, I am content, for the present, to base my disagreement with the majority on its failure to recognize that the Alabama guest statute is contrary to justice, is contrary to good morals, and is contrary to the policy of this State as that policy is exemplified by the longstanding law of this State which permits a passenger who is injured in an automobile collision to recover of his host where he has not exercised ordinary care. Such a law as Alabama’s should not be enforced between two Tennesseans and I dissent from its enforcement. |
sw2d_481/html/0760-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "PER CURIAM.",
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"url": "https://static.case.law/"
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STATE of Tennessee ex rel. Nesby Lee PEMBERTON, Petitioner, v. Dr. Ross H. WILSON et al., Respondents.
Supreme Court of Tennessee.
June 5, 1972.
J. H. McCartt, Wartburg, for petitioner.
Harry J. Joyce, Wartburg, Jess E. Pear-man, Harriman, William C. Wilson, Knoxville, for respondents.
OPINION
PER CURIAM.
This is a suit by a teacher for the writ of mandamus against the Chairman and members of the Morgan County School Board. The Chancellor granted the writ after an evidentiary hearing. Respondents perfected an appeal to the Court of Appeals. That Court reversed the Chancellor.
Petitioner filed a petition for certiorari in this Court. In her petition for certiora-ri she pointed out the Court of Appeals was without jurisdiction of the matter. T.C.A. Section 16-408.
We granted the writ on the sole ground the Court of Appeals did not have jurisdiction to entertain the appeal and should have transferred the case to this Court. Campbell County v. Wright, 127 Tenn. 1, 151 S.W. 411 (1912).
The matter has been argued at the bar of this Court. After a thorough reading of the record and an examination of the excellent briefs and authorities cited therein, we concur in both conclusions and reasoning of the Court of Appeals. The case is so fully and clearly stated in that opinion that this Court adopts and incorporates it in this opinion for publication.
However, assignment of error four in this Court was not considered by the Court of Appeals because the question proposed therein was not called to the attention of that Court. The assignment is as follows:
“The Court of Appeals erred in holding and finding that both parties appealed, the opinion on page 1 stating: ‘The Chancellor granted the relief sought in the bill and the defendants have appealed.’ The cause should have been transferred to the Supreme Court of Tennessee under the provisions of T.C.A. 49-1417. The decree of the Chancery Court remains in effect as to the Morgan County School Board.”
We are of the opinion there is no merit to this assignment of error. The record shows all defendants below prayed and were granted a broad appeal. Dr. Wilson perfected an appeal by filing an appeal bond. The School Board did not.
“If a decree adjudges independent rights, it will remain in force as to those parties who acquiesce therein, and be vacated by the appeal of other parties. And e converso, where the proper decree will necessarily affect the parties who have not appealed, this court, although the appeal be taken by one party, will determine the whole cause as it stood in the court below before any decree was entered.” Parsons v. Kinzer, 3 Lea 342, 71 Tenn. 342 (1879).
This cause is not severable by its nature; and, therefore, the broad appeal perfected by Dr. Wilson brings up “the whole matter of law and fact appearing in the record.” Wood v. Cooper, 2 Heisk. 441, 49 Tenn. 441 (1870).
We quote and adopt, as hereinabove stated, the opinion of the Court of Appeals, Western Section, written by Judge Nearn, and concurred in by Judges Carney and Matherne.
This is a suit brought in the Chancery Court of Morgan County in the name of the State of Tennessee on the relation of Nesby Lee Pemberton, a teacher in the Morgan County School System. A Writ of Mandamus was sought to reinstate relator, hereinafter termed complainant, to the position of Attendance Teacher from that of elementary Classroom Teacher, to which position she had been transferred by the concurrent action of the County Superintendent and the Board of Education of Morgan County.
The defendants herein are the County Superintendent and the members of the Board of Education of said county.
The complainant also sought in her Bill reimbursement for the difference in compensation between that of Attendance Teacher and that of Classroom Teacher for the school year 1969-1970.
The matter was heard according to the forms of chancery, that is, on deposition. The Chancellor granted the relief sought in the Bill and the defendants have appealed.
There is practically no factual dispute. The interpretation and application of the appropriate statutes governing the situation were determinative of the trial below and will be determinative of the appeal.
The position of Attendance Teacher is an administrative or supervisory position of county-wide scope and the Attendance Teacher is a member of the staff of the County Superintendent. Some of the duties of the position include taking the school census, investigation of all illegal pupil absences, and the assistance of students lacking sufficient wearing apparel by the cooperation with civic and welfare agencies to obtain these necessities in order to reduce pupil nonattendance, all under the supervision of the County Superintendent. The position does not require the teaching of pupils in a classroom.
The duties of a Classroom Teacher are exactly those which the name implies. It is not an administrative or supervisory position.
A common office, located at Wartburg, is furnished the Attendance Teacher, shared with other administrative and staff members of the school system. The common office adjoins the office of the County Superintendent.
Complainant has held the position of Attendance Teacher in the Morgan County School System for approximately 17 years prior to the 1969-1970 school year. Prior to holding the position of Attendance Teacher, she had been a Classroom Teacher for several years.
In the General Election of 1968, the complainant ran for the office of Superintendent of Morgan County Schools against the encumbent who is the defendant herein, Dr. Ross H. Wilson. Complainant lost the election.
Prior to the election, a congenial relationship existed among the staff members occupying the same or adjacent offices. After the election, the former congenial relationship between the complainant and the other members of the staff changed to one which can best be described as strained. The whole thing seems to have been set off by the display on the office bulletin board, the day after the election, by person or persons unknown, of a campaign poster or caricature of the complainant upon which had been drawn in a mustache and remarks written upon it which are unspecified in the record. The complainant was offended by the caricature and words took place between complainant and other staff personnel. Thereafter, for the remainder of the year, complainant withdrew from association with her fellow employees and, except when the situation required she speak to others in the office, she remained withdrawn. Dr. Wilson testified that, because of complainant’s change in attitude and the resulting strained relationship between the staff personnel and the complainant, he advised her that her contract as Attendance Teacher would not be renewed at its termination. Complainant testified that the real reason for her transfer was the fact that she ran against Dr. Wilson in the election. All staff personnel testified that after the spat over the caricature, even though attempts to ameliorate the situation were made by them, complainant remained withdrawn and uncommunicative, which caused a strained relationship, an unharmonious office, and difficult working conditions. However, all agreed that she was competent in her work.
At the special School Board meeting for the election of teachers, held in April, 1969, for the coming school year, the defendant, Dr. Wilson, did not recommend that complainant be reappointed Attendance Teacher, but recommended for the good of the system that she be elected or appointed as Classroom Teacher at the Sunbright Elementary School. The School Board voted approval of the recommendation. Prior to the special election meeting, which was held at its usual annual time, no charges had been placed against the complainant and no notice of any change or hearing was given complainant. No charges were made against the complainant at the meeting of the Board. After consideration of the Superintendent’s recommendation, the Board voted the change for the good of the system. It is the position of the complainant that notice of the Board’s action, a list of charges, and a hearing thereon were statutory prerequisites before the Board could take the action that it did.
Complainant earned $860.00 less in the 1969-1970 school year as Classroom Teacher than she would have earned for that year as Attendance Teacher. However, as Attendance Teacher she would have been required to work about 20 days longer during the year than as Classroom Teacher. Also, since complainant’s home is at Sun-bright, she did not have to daily drive the 26 miles round trip from her home to Wartburg.
After the action of the Board was made known to complainant, she was tendered a contract for the coming year as a Classroom Teacher. Complainant accepted and executed the usual State of Tennessee form contract between teachers and the County Board of Education for the position of Classroom Teacher. The contract provided that the salary of Classroom Teacher would be “State Salary Schedule + Co. Supp.” (State Salary Schedule plus County Supplement). The State Salary Schedule is a schedule of salaries to be paid teachers depending upon their scholastic attainment. The schedule is readily available to all. Contracts between teachers and Morgan County have described the salary to be paid in the foregoing manner as far back as any witness could remember. The exact dollar payment is not specified in the contract. It is the position of the complainant that the difference in salary was unknown to her at the time of the execution of the contract, as she thought the salary would not be reduced, but as soon as the difference was learned and complainant became aware that she had been financially demoted, suit was filed. The recprd tends to substantiate this position of the complainant and the Chancellor so held.
The Assignments of Error are :
“1. The Court erred in ordering the issuance of a peremptory writ of mandamus to reinstate the complainant.
2. The Court erred in awarding a monetary recovery in favor of the complainant. ...”
The provisions of the Tennessee Code which are the legal subject of this controversy are T.C.A. 49-1411 through 49-1416, subject to the definition of terms contained in T.C.A. 49-1401.
At the time of complainant’s transfer, the pertinent provisions of Section 49-1411 T.C.A. provided as follows:
“Transfers within system. — The superintendent, with the approval of the board, when necessary to the efficient operation of the school system, may transfer a ‘teacher’ from one location to another within the school system, or from one type of work to another for which he is qualified and certificated. Such a transfer can be made only by the concurrent action of the superintendent and the board. * * * ”
Section 49-1412 provides that no teacher may be dismissed or suspended except for specified grounds. Section 49-1413 provides that a teacher may be suspended during investigation of a case. Sections 49-1414 and 49-1415 collectively provide that charges against a teacher are to be reduced to writing and filed with the Board and, if the Board is of the opinion that the charges warrant a dismissal of the teacher, notice of the Board’s opinion and a copy of the written charges are furnished to the teacher. Section 49-1416 provides the manner in which the teacher shall have a hearing before the Board of the charges made against her.
Section 49-1401 defines the word “teacher” as used in the act as follows:
“(1) The word ‘teacher’ includes teachers, supervisors, principals, superintendents and all other certificated personnel employed by any county, city or special district board of education, for service in public, elementary and secondary schools in Tennessee, supported in whole or in part by state or federal funds.”
The term “tenure” as used in the act is defined as:
“(4) The word ‘tenure’ indicates the statutory requirements, conditions, relations and provisions, in this chapter, under which a teacher employed by a board holds a position as a teacher under the jurisdiction of the board. Administrative and supervisory personnel shall have tenure as teachers and not necessarily tenure in the specific type of position in which they may be employed.”
The thrust of Mrs. Pemberton’s complaint is that she was transferred by the Board to a position of lower pay, without charges being made and without the opportunity afforded her for a hearing. That such transfer in such manner is in violation of the express requirements of the Code. Further, that the action of the Board not only contravened the applicable statutes, but was arbitrary, capricious and an exercise of bad faith.
It is the position of the defendants that in order for the Board to transfer a teacher from one position to another, it is not necessary to place charges, send notices, and afford a hearing to the teacher. Further, that the transfer of the complainant was not in contravention of the statutes as the statute provides that administrative and supervisory personnel shall have tenure as teachers only and not tenure in the particular administrative position to which they had been elected or appointed. The defendants strongly deny that the transfer of the complainant was an arbitrary or capricious act accomplished through bad faith but, on the contrary, contend that the transfer was made for the efficient operation of the school system.
There is no dispute over the fact that the complainant held tenure as a teacher. The real dispute is whether or not she held such tenure as administrative personnel of the staff of the County Superintendent, and whether the transfer from that position to another in the system would require the placing of written charges, notice thereof, and the affordance of a hearing before a transfer could be legally accomplished from the position of Attendance Teacher or administrative personnel to that of Classroom Teacher. The Chancellor held that the transfer of complainant to the position of Classroom Teacher at a reduction in salary amounted to a demotion and that such action required that written charges be preferred against her and a hearing on these charges afforded. As the Chancellor was of the opinion that complainant’s transfer was accomplished in a manner contrary to the statutes, he ordered a Peremptory Writ of Mandamus issue reinstating complainant to her former position with an award of $1,720.00, representing the difference in pay for two years.
The reported cases cited to sustain the Decree of the Chancellor are: State v. Yoakum (1956) 201 Tenn. 180, 297 S.W.2d 635; State ex rel. Taylor v. Rasnake (1961) 209 Tenn. 229, 352 S.W.2d 427; Blair v. Mayo (1970), Tenn., 450 S.W.2d 582.
In the Yoakicm case, supra, the nature of the action was one of declaratory judgment for construction of T.C.A. 49-1411 as it then appeared. At that time, 1956, the statute was in different form than now. The appeal was from the action of the Trial Court in overruling a demurrer. The Original Bill charged that the Board undertook to transfer some 80 teachers in such manner as to amount to a discharge or elimination of such teachers from the system. Further, that the action of the Board was contrary to the recommendation of the County Superintendent. In overruling the demurrer, the Chancellor held inter alia, that a transfer could be accomplished only by the joint action of the Superintendent and the Board. The Supreme Court held that the Chancellor was incorrect in that part of his holding as it was the meaning of the statute and legislative intent that the Board could act, in the matter of transfers, without the concurrence of the Superintendent. However, the Supreme Court held that the Chancellor was correct in overruling the demurrer as the Original Bill unquestionably averred a state of facts which constituted a clear abuse of discretion on the part of the Board. Further, that the aver-ments of the Bill showed that it would have been a useless thing for the complainants to have followed statutory administrative procedure and the Chancellor was eminently correct under the authority of a Court of Equity to grant the relief requested.
In discussing the Teacher Tenure Act, the Supreme Court stated:
“Clearly if these teachers in the instant case had violated some of these rules on which they could be demoted or dismissed and the statute had been complied with and they had had notice and had an opportunity to appeal unquestionably it would be our judgment that they must follow the administrative remedy before proceeding further . . .”
It is forcibly argued to this Court that such language by the Supreme Court is authority for the proposition that no “demotion” can be had without written charges and the affordance of a hearing.
We are of the opinion that the Yoakum case, supra, is distinguishable from the case at bar. First, no proof was heard in the case and the Original Bill averred facts which clearly showed “the action of the Board was arbitrary, capricious and contumacious” and “without apparent rhyme or reason”. The Bill further averred that the act of the Board was an attempt to eliminate the teachers from the school system by transferring them to areas far from their homes, making it virtually impossible for them to reach their assigned schools during inclement weather. Second, the main point of the Court’s Opinion was that when such facts were averred or proved, the Chancery Court had every right to grant injunctive relief without requiring complainants to exhaust administrative remedies. Third, although the word “demotion” is used in the Supreme Court’s Opinion, the case did not involve a demotion, for the transfer involved the transfer of teachers from one location to another without any loss of status or pay. Basically, the case involved an attempted elimination of teachers from the system. Fourth, the case is not concerned with the transfer of administrative personnel to the position of teacher, and did not require the construction of the term “tenure” as it relates to administrative or supervisory positions. Because of these distinguishing-marks, we are of the opinion that the Yoakum case does not control the outcome of the case at bar.
Neither is the case of State v. Rasnake, supra, controlling. The Rasnake case does not deal with the general Teacher Tenure Act. It involves the application of a private Teacher Tenure Act dealing with Campbell County only. The private act under consideration in the Rasnake case provided that none of those in authority “shall have any right to dismiss, discharge, demote or change any employee from one position or class to another position or class . . . at a reduced salary, unless and until charges as specified herein shall have first been filed and sustained.
. ” We are unable to find any provision in the general act containing even remotely similar verbiage. There were really only two questions before the Court in the Rasnake case, that is, whether the private act contravened the public act and, if not, whether the Campbell County School Board had the right to demote the teacher without complying with the terms of the private act. Tl^e .Supreme Court acknowledged that the verbiage of the private act was different from that of the general act, but that such difference was not violative of the Tennessee Constitution because the private act merely gave to the teachers of Campbell County a reasonable protection of not being transferred to a position paying a lower salary without due notice and hearing, and did not prohibit the Board in the performance of its duty. After answering the first issue in favor of the constitutionality of the private act, the Court held that any demotion must comply with the procedure of the private act. Since the Board had not complied with the terms of the private act, the teacher was entitled to the difference in salary between that of Principal (from which position he had been demoted) and that of Classroom Teacher. Since the Rasnake case involved the constitutionality and the interpretation of a private act, we deem it not controlling of the instant case.
Next, we come to the case of Blair v. Mayo, supra. In that case a Principal and an Assistant Principal had been transferred from their positions to that of Classroom Teacher and Physical Education-Basketball Coach, respectively. The transfer was attempted by the Board over the objection of the County Superintendent. No charges were placed and no opportunity was afforded for a hearing. The matter was heard on oral proof, but the testimony was not preserved by means of a Bill of Exceptions. The findings of the Chancellor were part of the record and therefore were conclusively presumed to be correct. The Chancellor found that the members of the Board had acted in an arbitrary and capricious manner and enjoined the transfer. The Assignments of Error were that the Chancellor erred because it was a Mandamus proceeding and must be brought in the name of the State of Tennessee, and because Tennessee law does not require an administrative hearing in making transfers. The Court first ruled that the suit was properly brought and stated that the Assignment of Error relative to the right of an administrative hearing on a transfer “must be considered in the light of the facts of the case as the Chancellor found them.” The facts as found by the Chancellor in that case clearly show that the action of the Board was illegal, arbitrary, capricious and bordered on the downright dishonest, as the Chancellor commented that “considerable evidence” appears of bribery of some members of the Board by a third party to accomplish the transfer.
We are of the opinion that the Blair case supra, is not controlling authority for the decision of this case. In Blair the transfer was attempted over the objection of the County Superintendent. By the time Blair reached the Supreme Court, Section 49-1411 had been amended by the legislature so that it was materially different from the form in which it existed when the Opinion in the Yoakum case, supra, was rendered. After the Yoakum decision, the legislature added the sentence “Such a transfer can be made only by the concurrent action of the superintendent and the board.” We suppose such amendment was in reply to the Court ruling in Yoakum. That addition by amendment to the statute has been construed to mean that the transier is ineffective unless it is made with the concurrent act of the Superintendent and the Board. Mayes v. Bailey et al. (1961) 209 Tenn. 186, 352 S.W.2d 220. Although the statutory change is not explicitly mentioned in the Court’s Opinion in Blair, it is clearly brought out that the action of the Board was made without the concurrence of the Superintendent. It is our opinion that in Blair the fact of the nonconcurrence of the Board and the Superintendent alone was violative of the teachers’ rights in that case under the Teacher Tenure Act, under the authority of Mayes v. Bailey. Also, we do not construe Blair to mean that charges and a hearing must be afforded in every case of transfer from a higher paying position as “teacher” to a lower paying position as “teacher”. As we understand the holding of Blair, it is to the effect that a transfer must be accomplished in a reasonable manner and for reasonable causes. Further, that since in Blair the Chancellor found that the transfer was arbitrary and capricious, which finding was binding on the Supreme Court, there being no other proof before it, the Decree of the Chancellor setting aside the arbitrary and capricious act of the Board was affirmed.
The case of Potts v. Gibson, Tenn., 469 S.W.2d 130, decided in June, 1971, by the Tennessee Supreme Court, has also been cited to this Court as authority to support the Chancellor’s Decree. However, we are of the opinion that it is not. In Potts, the question of whether or not the transferee was entitled to the preference of charges, notice and a hearing was not raised. Therefore, the question was not directly ruled upon by the Court.
And now, having stated what in our opinion the Supreme Court has not said, we hold that what was said by them in the case of Mayes v. Bailey, supra, is determinative of this suit.
Our analysis of the foregoing cases is supported by the holding of the Supreme Court in the case of Mayes v. Bailey, supra. In Mayes, the complainant was transferred from a supervisory position by joint action of the Board and the County Supervisor to that of principal of a school at an annual reduction in salary of $500.00. Although the Opinion does not explicitly state, it is evident from the summary of events contained therein, the transfer was accomplished without the filing of charges and a hearing thereon. The facts are quite similar to those of the present case. The complainant filed his bill for injunction or Writ of Mandamus to restore him to his former position averring that his transfer was motivated by “politics”. After a full hearing in the Chancery Court of the complaints, the Chancellor dismissed the bill. The proof showed that the act of the Superintendent and the Board was not arbitrary and capricious and “There wasn’t any skullduggery in that Board meeting. .” Further, that it was the opinion of the Board and the Superintendent that such transfer was for the good of the system. The Court held that in matters of the transfer of teachers, under circumstances as here described, the allegation of such circumstances presented to the Court the issue of whether or not the action of the Board was arbitrary. Further, the Court quoted with approval that part of the language of Yoakum dealing with the latitude and discretion of the Superintendent and the Board in assigning and transferring teachers within the school system. As we understand the Mayes case, no charge or hearing was granted complainant pursuant to T.C.A. 49-1414 et seq., yet the Court closed the Opinion with: “We believe that all the administrative requirements and the requirements of the law have been met in this case. . . .”
We think it is of important significance that in the definition of the word “tenure”, found in 49-1401 T.C.A., exception is made to those who hold administrative and supervisory positions, for it provides that those holding such positions shall have tenure as teachers and not necessarily tenure in the specific type of position. In the case now before us, the complainant still has her tenure as a teacher. She has been transferred from her administrative position to that of Classroom Teacher. From the definition of “tenure” as contained in 49-1401 T.C.A., we can only conclude that complainant has tenure as a “teacher” but not tenure as an “Attendance Teacher”. Her transfer in this case had not caused her any loss in that tenure to which she is entitled.
We are of the opinion that the Supreme Court, by implication at the least, has heretofore held the law to be that in every case of a transfer within the system, from one position to that of another position with an accompanying lower compensation, written charges need not be made and the transferee afforded a hearing on the charges. Therefore, we hold such procedure was unnecessary in this case. Section 49-1411 does not require such procedure. Section 49-1412 provides that no teacher shall be dismissed or suspended without complying with the Code sections immediately following. The term “transferred” is not used in any of the sections following.
In Blair, supra, when ruling whether or not the “transferred” teacher was entitled to an administrative hearing, the Court cited with approval and applied the following language of Mr. Chief Justice Burnett in State v. Yoakum, supra:
“While unquestionably the school board along with the superintendent was given the right, the latitude and discretion of assigning and transferring teachers within the school system this must be done for the good of the schools. The teacher should be dealt with considerately. Ordinary fairness requires that he or she be allocated to a certain school either at the time of his selection or shortly afterwards so that they may intelligently contract or refuse to contract with the board. And when the teachers are thus transferred from one place to another it must be exercised in a reasonable manner. The best interests of the school must be intended. Where it is shown that there is an arbitrary or capricious use of power being exercised by those in authority the courts will not tolerate the use of this power. The presumption of good faith which is ordinarily accorded to officials of the kind cannot prevail and stand where it is shown as is shown by the allegations of fact here of an arbitrary and capricious use of power in transferring these teachers.”
In Yoakum, supra, the Court stated “No teacher under the tenure law is guaranteed continuity of employment in a particular assignment or school. The general authorities all over the country are to this effect.” The Court further stated:
“The Legislature being made up of reasonable men recognized the makeup of our county school systems and that school superintendents and boards must be left with latitude and discretion in assigning and transferring teachers within the school system.”
Therefore, it is our understanding of the holdings in the cases cited to be that in matters of transfer, teachers must be dealt with considerately and not arbitrarily or capriciously; that the transfer should be made either at the time of his selection or shortly thereafter in order that the transferee may contract or refuse to contract with the Board, and all must be done in a reasonable manner and for the good of the system.
Applying these procedural rules to the instant case, we find that the notice of transfer was made at a reasonable time; that is, prior to the end of the school year and before the commencement of the next, in order that the teacher could intelligently contract or refuse to contract.
The question remaining was whether or not the transfer was an arbitrary or capricious act of the Board and the Superintendent. The Chancellor did not find that the act of the Board and the Superintendent was either arbitrary or capricious. The Decree below is based on the Chancellor’s finding that the transfer amounted to a “demotion” and under the authorities cited herein, as viewed by the Trial Court, the transferee was entitled to have charges preferred against her and a hearing afforded on those charges.
After reviewing the record in this cause, we are unable to say that the act of the Board and the Superintendent was arbitrary or capricious. It is to be presumed that the acts of a Superintendent and a Board are not arbitrary or capricious but are reasonable and fair. See Mayes v. Bailey, supra. Practically all witnesses testified to the effect that although the complainant was competent in her assignment as Attendance Teacher, her presence in the office because of her antisocial behavior, manifested by her silence as a display of her “hurt feelings” for the entire time she remained as Attendance Teacher after her loss of the election, created a strained atmosphere which interfered with the efficient operation of the office. Section 49-1411 T.C.A. authorizes a transfer within the school system “when necessary to the efficient operation of the school system”. The instant case, in our opinion, falls squarely within that authorization as the proof fails to show that the act complained of, regardless of who was at fault for complainant’s injured feelings, was arbitrary or capricious. It is our opinion that for us to hold that transfers within the system must be accompanied by charges and a hearing would emasculate the discretion allowed the Board and the Superintendent in the matter of transfers. The fact that such transfer was to a lower-paying teacher position from an administrative position would only have bearing on the question of abuse of discretion. Mayes v. Bailey.
We hold that Courts should not interfere with the discretionary acts of the Superintendent and the Board unless such acts are shown to be arbitrary or capricious or a subterfuge to effectively remove a teacher from the system. Neither of these conditions appear in the instant case.
It must therefore result that both Assignments of Error are sustained; the Decree below is reversed and the cause dismissed, with costs below and costs of appeal adjudged against the appellee. |
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E. W. LAMBERT, Sr., and E. W. Lambert, Jr., Complainants-Appellants, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, and Marx & Bensdorf, Inc., Defendants-Appellees.
Supreme Court of Tennessee.
March 20, 1972.
Wilson S. Ritchie, Knoxville, Albert C. Harvey, Memphis, for complainants-appellants.
John R. Dunlap, Lawler, Humphreys & Dunlap, W. Emmett Marston, Martin, Tate, Morrow & Marston, Memphis, for defendants-appellees.
OPINION
HUMPHREYS, Justice.
As this case stands here, it is a suit by appellants on an amended bill seeking specific performance of a contract to furnish financing of the construction of apartment buildings in the amount of $2,910,000.00, and for damages for breach of the contract. To which suit the chancery court sustained appellees’ demurrers, on the ground the contract was void under the Statute of Frauds.
There is a motion to dismiss the appeal, because the assignments of error, brief and argument were not filed as required by Rule 14 of this Court. The filing was due to be made on the 23rd day of September but was not made until the 27th day. The excuse offered by affidavit is that the secretary to whom the filing had been left arrived at a Knoxville Post Office too late to post it. Absence of any particular prejudice to appellees is also asserted as an excuse.
This is not enough to avoid the rule. It is self-evident that the violation of this rule cannot be excused on the first ground mentioned, secretarial shortcoming. It is the duty of counsel to comply with the rules of this Court, not secretaries. It would be better to do away with the rules than to excuse their violation on this ground.
The violation of the rule cannot be excused on the ground that no prejudice to appellees is shown. Although referred to in connection with other more substantial excuses, in cases excusing violation of this rule, upon consideration of the purpose of the rule this is not a valid excuse. The rule is not for the benefit of the appellee, but for the benefit of this Court. It is directed at one of the most important objectives of this Court: the prompt dispatch of judicial business. This Court is jealous of its record of disposing of cases before it and is not willing to see compliance with its rules, directed toward this end left in their enforcement to the circumstance of a particular prejudice being shown.
However, before finally ruling on the motion to dismiss, we should mention that the record and briefs have been considered and that we agree with the Chancellor, that the contract sued on violates § 23-201(4) T.C.A., providing that “any contract for the sale of lands .... for a longer term than one year” will not support an action unless the agreement “shall be in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.”
Summarized, this is a suit for breach by Home Federal and Marx & Bensdorf of an alleged contract to lend the Lamberts $2,910,000.00, to be accompanied by the transfer by the Lamberts of an interest in real property as security for the loan. It was claimed by the Lamberts that the loan was to be used for the construction of 412 apartment units and was to be advanced in four phases. It was alleged that each advance was to be evidenced by a note having a maturity of twenty-five years secured by deed of trust on the land on which the apartments were to be built. That a permanent commitment for the construction of ninety-six apartment units was issued by Home Federal, and a construction loan in the amount of $672,000.00 was made by Marx & Bensdorf, Home Federal's agent. This construction loan was evidenced by a one-year note and trust deed to Marx & Bensdorf.
To meet the requirements of the Statute of Frauds, the Lamberts produced memo-randa which they contended would, when considered in connection with this mortgage to Marx & Bensdorf, furnish written memoranda of the transaction which would satisfy the Statute of Frauds. The Chancellor found that the' memoranda did not satisfy the Statute of Frauds and gave the Lamberts an opportunity to produce any other memoranda they might have bearing on the transaction which would satisfy the statute. When none was produced, the Chancellor sustained the demurrers of Home Federal and Marx & Bensdorf.
In so doing, we think the Chancellor acted correctly. The memoranda relied on by the Lamberts consists of thirteen documents which, considered separately, and collectively, made no commitments whatsoever by Home Federal or Marx & Bens-dorf to lend money to the Lamberts and take a trust deed as security. Nor is any commitment made by the Lamberts to Home Federal and Marx & Bensdorf to accept such a loan and to give a trust deed to secure the same on any described real property.
Marx & Bensdorf is not involved in the memoranda other than by the note and deed of trust for the construction loan of $672,000.00. However, this deed of trust by its terms became null and void upon payment and release, which was and done October 1, 1968; and contains no terms which considered alone or with the thirteen instruments satisfies the statute.
The deed of trust does not, and could not, under its terms, secure any greater amount than the $672,000.00 for which it was intended to furnish security. No other amounts are mentioned in the instrument and there .is no language therein indicating any intention that it shall apply to any other loan than the single one mentioned.
A mortgage, or a deed of trust, in its legal aspect is a conveyance of an estate or an interest in land and as such within the meaning of the Statute of Frauds. A mortgage or deed of trust of land cannot be made by parol. A promise to make another the owner of a lien or charge upon land is equivalent to sell him such an interest therein, and is within the statute. 49 Am.Jur. Statute of Frauds, § 197.
Restatement, Contracts, § 195, declares that any interest which the law regards as real estate is within the statute.
And in 76 A.L.R. 574, 579; 49 Am.Jur. Statute of Frauds, § 199 at 526, it is held that an oral contract to mortgage or to give security on real estate is unenforceable.
It is also the rule that a mortgage cannot be modified or extended by an oral agreement to secure further indebtedness. 37 C.J.S. Frauds, Statute of § 118(2), p. 610.
On the basis of this authority the Lam-berts’ contention that the trust deed to Marx & Bensdorf to secure the single $672,000.00 loan can be looked to as memorandum satisfying the Statute of Frauds must be rej ected.
The rule by which the thirteen instruments exhibited to the bill as memoranda satisfying the Statute of Frauds must be tested is well stated thusly: “The general rule is that the memorandum, in order to satisfy the statute, must contain the essential terms of the contract, expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected, without resorting to parol evidence. A memorandum disclosing merely that a contract had been made, without showing what the contract is, is not sufficient to satisfy the requirement of the Statute of Frauds that there be a memorandum in writing of the contract.” 49 Am.Jur. Statute of Frauds, §§ 353, 363-364. Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 4 Am.St.Rep. 800 (1887); Otis v. Payne, 86 Tenn. 663, 8 S.W. 848 (1888), are to the same effect as the above.
Considered in the light of this statement of what is required of memoranda to satisfy the statute, the conclusion is unavoidable that the memoranda does not satisfy the statute.
Our conclusion is that the Chancellor correctly disposed of the case but that this Court must dispose of the appeal by sustaining the motion to dismiss for noncompliance with the rule of this Court with respect to the filing of assignments of error, brief and argument. It is so ordered.
DYER, C. J., CRESON, and Mc-CANLESS, JJ., and JENKINS, Special Justice, concur.
OPINION ON PETITION TO REHEAR
The appellants have filed an earnest and courteous Petition to Rehear. By this petition it is initially contended that the Court mistakenly treated the assignments of error, brief and argument as being filed on September 27, 1971, the day they were received by the Clerk, instead of September 24, 1971, the date they were mailed. Even if this contention were correct, the assignments of error, brief and argument would of course still not have been timely filed. We may point out, however, that we are cited to no authority in support of appellants’ position, and know of none. Rule 14 states that the “appellant shall file with the clerk . ” To file with the clerk means actual delivery to the clerk. Cf. State ex rel. Partin v. Dykes, 169 Tenn. 100, 83 S.W.2d 243 (1935); Jones v. Moore, 106 Tenn. 188, 61 S.W. 81 (1900).
The other matters raised in the petition were fully considered in the original opinion, and consequently the petition to rehear is denied. |
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Joe H. SMARTT, a minor, etc., Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees. Joe D. SMARTT, Plaintiff-Appellant, v. George R. FLEMING et al., Defendants-Appellees.
Court of Appeals of Tennessee, Middle Section.
Feb. 25, 1972.
Certiorari Denied by Supreme Court June 5, 1972.
Frank J. Runyon, Clarksville, Thomas A. Higgins, Nashville, for plaintiffs-appellants.
W. A. Moody, of Branstetter, Moody & Kilgore, .Nashville, for defendant-appel-lee, Joe A. Winn.
Richard H. Batson, of Daniel, Harvill, Batson & Nolan, Clarksville, for defendant-appellee Bd. of Education.
OPINION
PURYEAR, Judge.
These two consolidated cases arose out of an accident which occurred in the Clarksville-Montgomery County Area Technical School, as a result of which the plaintiff, Joe H. Smartt, then nineteen years of age, sustained a serious injury to his left hand so that portions of his hand had to be amputated.
The defendants, George R. Fleming, James C. Cunningham, Halbert Harvill, Wayne Cross, Bryon Norfleet and Owen Petrie, are members of the Board of Education of the Clarksville-Montgomery County Unified School System and are sued as such. The defendant, Joe A. Winn, is a teacher employed by said School System and he is sued individually.
The suit filed by the plaintiff, Joe H. Smartt, is for damages for personal injuries and the suit filed by his father, Joe D. Smartt, is for loss of services and medical expenses.
The declarations in both cases contain substantially the same averments regarding the way and manner in which the accident occurred, there being only one count in the declaration filed by the son and two counts in the declaration filed by the father.
In the second count of his declaration, the father sues for the use and benefit of the United States of America for medical expenses incurred by the United States of America on behalf of Joe H. Smartt in a Military Hospital pursuant to an Act of Congress known as the Medical Care Recovery Act.
The first declarations filed in each case were withdrawn and plaintiffs obtained leave of the Court to file amended and substituted declarations and it was upon these latter mentioned declarations and the pleas thereto that said suits were tried.
The declarations were filed on December 30, 1970, and on that date the trial Court entered the following order in each case :
“This case came on to be heard on the motions of the plaintiff to be permitted to file an amended and substituted declaration, and to require the defendants to plead their defenses specially; and, on the motion of the defendant school system for the purpose of admitting the allegations in the amended and substituted declaration concerning the existence of such insurance coverage and to strike the same from the declaration and prohibiting any reference to the same before the jury, statement of counsel, and the entire record, from all of which it appears that the various motions should be granted.
It is, therefore, ORDERED and ADJUDGED :
1. That the plaintiff be and hereby is permitted to file an amended and substituted declaration.
2. That the defendants be and hereby are required to plead their defenses specially and to file the same on or before January 20, 1971.
3. That all allegations in the amended and substituted declaration pertaining to the existence of insurance coverage, the same having been admitted fully by the defendant school system, be and hereby are stricken and no reference to the same shall be made at the trial of this case before the jury. To the foregoing action of the Court the plaintiff respectfully excepts.” (Tech. Rec. pp. 9, 10)
The declarations in both cases aver that the accident occurred as result of an explosion on April 15, 1969, at the Clarks-ville-Montgomery County Area Technical School in which the son, Joe H. Smartt, was a student at the time.
Said declarations also contain the following averment:
“At the time of the matters and things complained of in this law suit, the Clarks-ville-Montgomery County Unified School System had obtained a public liability insurance policy for the purpose of providing insurance coverage and protection against such things as the matters and things complained of in this law suit and for this reason and to the extent of the policy limits any immunity possessed by the school system has been waived. The insurance policy was issued by Trans-america Insurance Company being- Policy No. 36 GLA 32-466-41, in effect on the date of the accident complained of in this lawsuit affording limits of protection to the school system in the amount of $100,000.00.” (Tech. Rec. pp. 11, 12)
Both declarations contain averments to the effect that the defendant, Joe A. Winn, was guilty of various acts of negligence which proximately caused the explosion and injury; that the said Joe A. Winn was, at the time thereof, acting as an agent and employee of the defendant, Board of Education, and for whose negligence the said Board of Education is liable.
The declarations also contain an averment to the effect that the defendant, Board of Education, was guilty of gross negligence by placing a man in charge of a course requiring use of and experimentátion with inherently dangerous objects when said instructor did not have the formal qualifications and knowledge to take the proper safeguards and precautions.
Pursuant to the order of the Court here-inabove set forth, the Board of Education filed a- special plea in each case denying allegations of negligence set forth in the declarations and alleging that the said Joe H. Smartt, who was injured, was guilty of negligence which proximately caused or contributed to the accident resulting in injury to him.
In said plea, the Board of Education did not rely upon the defense of governmental immunity and filed no other plea relying upon that defense.
The cases were consolidated and tried together before the trial Judge and a jury, as a result of which the jury found in favor of the defendants in both cases and the trial Court dismissed said cases.
Thereafter, plaintiffs filed a motion for new trial in each case, which motions were overruled, and these appeals resulted.
Plaintiffs have filed three assignments of error, the first of which is as follows:
“The Trial Court erred in striking all of the allegations in the amended and substituted declarations pertaining to the existence of insurance coverage and in ordering that no reference to the same should be made at the trial of the case before the jury.”
In order to properly consider and discuss this assignment it is necessary for us to give a brief summary of the facts of the case and the conflicting theories of the parties.
In April, 1969, and for some time prior thereto the Board of Education of Clarks-ville-Montgomery County Unified School System operated an area technical school in Clarksville, Montgomery County, Tennessee.
The defendant, Joe A. Winn, was one of the teachers in such school and at the time of the events involved herein he was teaching a class in “Power Mechanics”, which included instructions about large engines, jet propulsion rockets and gas turbines propelled by various forms of fuel and other energy sources and the only two students in the class at that time were the plaintiff, Joe H. Smartt, then nineteen years of age, and one Mike Ellis, who was apparently about the same age.
On or about Friday, April 11, 1969, Smartt and Ellis listened to a lecture on the background of rockets and energy sources used to propel rockets and the development of rocket engines. As a part of this course defendant, Winn, demonstrated chemical fuel used as the original source of energy for early forms of rocket engines. As a part of the demonstration a piece of straight metal pipe was closed at one end to be used as a crude prototype of a rocket engine.
Under the guidance and instruction of Winn, the students, Smartt and Ellis, made some black powder by mixing certain designated proportions of potassium nitrate, powdered sulphur and powdered charcoal and poured it into the metal pipe. They then poured some oil in the mixture so as to make a pasty substance of it, after which they used a screwdriver or a round file for the purpose of spreading this pasty mixture on the inside perimeter of the metal pipe.
After this was done, the prototype rocket was placed upon the ground and ignited, as a result of which flame and smoke shot out from the open end of the pipe, but Smartt and Ellis were disappointed with the demonstration because the pipe failed to move as a result of the power thrust.
Therefore, on another day, shortly thereafter, Smartt and Ellis made two more crude prototypes of a rocket under the guidance and supervision of Winn and these prototypes were ignited, but with the same disappointing results in that the pipe failed to move.
Within a short time thereafter, Smartt and Ellis, proceeded to make another prototype rocket, but without the consent or knowledge of Winn or any other teacher in the school, they substituted potassium chlorate for potassium nitrate in making the black powder, since they had been informed that potassium chlorate would provide more power than potassium nitrate.
Smartt was holding the tube of this fourth prototype rocket in his left hand and spreading the pasty black powder around the inside perimeter of the tube with either a file or screwdriver when the tube exploded, thereby seriously injuring his left hand.
Upon trial of the case it was the theory of plaintiffs that after the disappointing demonstrations were held, Smartt and Ellis asked one James Major, a chemistry teacher in the school, if a more powerful fuel for the rocket could be made and that, in the presence of defendant, Winn, Mr. Major told Smartt and Ellis that the use of potassium chlorate instead of potassium nitrate would produce a more powerful thrust; that Smartt and Ellis, under the supervision of defendant, Winn, then proceeded to make another rocket, substituting potassium chlorate for potassium nitrate and otherwise followed substantially the same procedure they had followed in making the other three rockets; that potassium chlorate is a dangerous substance and that the defendant, Winn, should have known that substitution thereof for potassium nitrate was dangerous; that Smartt and Ellis had free access to the storeroom where chemical ingredients were stored and that the defendants were guilty of negligence in failing to adequately supervise and instruct the students in preparation of the rocket and that such negligence was the proximate cause of Smartt’s injury.
It was the further theory of plaintiffs that Winn was not qualified to teach the course that he was teaching and that the School Board was guilty of gross negligence in placing a man in charge of teaching a course of study which required the use of and experimentation with inherently dangerous objects; that the School Board had a non-delegable duty to prevent the harm that resulted from such gross negligence.
It was the theory of defendants that Winn was well qualified to teach the course in power mechanics; that he properly supervised the demonstrations; that he provided the students with all of the instruction they needed to make them aware of necessary safety precautions which should be observed and that the accident occurred as a direct result of negligence of the plaintiff, Joe H. Smartt, because he and Ellis secretly obtained from the school storeroom a chemical which had not theretofore been used in demonstration in the course of instruction and that the chemistry teacher, James Major, told them it was a more powerful chemical, but it was dangerous and should not be used.
Winn testified that he did not even know there was any potassium chlorate on the school premises and that he did not know Smartt and Ellis ever entertained any idea of using it.
Some of the material portions of the evidence adduced by plaintiffs is controverted by evidence adduced on behalf of defendants and there is much room for difference of opinion as to what conclusions should be drawn from the whole evidence. In other words, there is evidence in the record which would support verdicts in favor of plaintiffs, but there is also ample evidence to support the verdicts which were rendered by the jury.
Plaintiffs insist that under T.C.A. 20-1328 they were entitled to read their entire declarations to the jury. This Code Section is as follows:
“20-1328. Declaration may be read to jury. — In the trial of any civil suit, counsel shall be permitted to read his entire declaration, including the amount sued for, to the jury at the beginning of the lawsuit, and may refer to the same in argument or summation to the jury.”
Plaintiffs also insist that it was prejudicial error for the trial Court to strike from their declarations all reference to liability insurance and order that such portions of the declarations" should not be read to the jury, citing the unreported opinion of the Supreme Court in Shelton v. Barnes filed at Nashville, on April 5, 1971, and the unreported opinion of this court in that same case filed at Nashville on June 26, 1970.
In the Shelton case the defendant, Town of Dickson, moved to strike an allegation in the declaration that the Town of Dickson carried liability insurance covering its truck which was involved in the accident in question and moved that such allegation not be read or discussed before the jury. This motion was denied and the defendants excepted.
In compliance with the trial Court’s order, defendants pled their defenses specially, denying that the truck was being operated in a careless or reckless manner, or so as to violate any statutes as alleged. The Town of Dickson admitted that it carried a policy of liability insurance, but pled governmental immunity beyond the policy limits, which appears in the record to be $50,-000.00, the total amount sued for in the case being $541,220.45 damages.
In addition to overruling the motion to strike from the declaration the allegation of insurance and to forbid reading of same to the jury, the trial Judge also declined to instruct the jury that they should ignore such allegation. In its opinion the Supreme Court said:
“At this juncture, let us say that we concur in the Court of Appeals holding that there was no error in the trial judge’s ruling on the right of plaintiffs to read all of their declaration. § 20-1328 T.C.A. expressly empowers a plaintiff so to do. Prior to its enactment, the Court of Appeals had held in Wilson v. Maury County Board of Education, 42 Tenn.App. 313 [315], 302 S.W.2d 502, that a trial judge had discretion in a case of this nature to permit or deny the reading of an allegation in a declaration with respect to liability insurance. This statute, which was then enacted for the evident purpose of meeting that holding, quite plainly and clearly authorizes the reading of the entire declaration, and since it was enacted to meet just such a case as this, it must be followed.”
There are some important distinctions between the Shelton case and the cases at bar and there is a real question as to whether or not it was error in the cases at bar for the trial Judge to sustain a motion to strike from the declarations all allegations of insurance and to forbid the reading of such allegations to the jury.
However, we are of the opinion that it is not necessary for us to decide this question and we pretermit it, because we have concluded that if it was error for the trial Judge to order such allegations stricken from the declaration and to forbid reading of such allegations to the jury it was harmless error.
The order of the trial Court shows that, as a basis for its motion to strike the allegations as to liability insurance, the Board of Education admitted the existence of such insurance. Moreover, the defendants were required to plead their defenses specially and the Board of Education filed a plea, relying upon several defenses, but not including the defense of governmental immunity.
Therefore, under the provisions of T.C.A. 20-921, the Board of Education waived the right to rely upon the defense of governmental immunity. See Creekmore v. Woodard (1950), 192 Tenn. 280, 241 S.W.2d 397 and Roberts v. Hickson (1960), 48 Tenn.App. 73, 343 S.W.2d 108.
In support of their assignment and in an effort to show that the trial Court’s action was not harmless error the plaintiffs filed in support of their motions for new trial an affidavit of one of the jurors, namely, Morris Hogan, which affidavit is as follows :
“2/19/71
I make oath that in the Smartt case, it is my belief that one of the main reasons for the verdict was the belief of several jurors that Mr. Winn or the school board members would personally have to pay any judgment.
Further, he that is Smartt, should not have sued his teacher who was trying to help him.
(s) Morris K. Hogan.”
This affidavit merely contains an expression of opinion and if we should accept this opinion as correct and agree that, disregarding their oath, the law and evidence, the jury refused to render a verdict against defendants because they did not believe the defendants were insured, then, likewise and in reverse order, we must also agree that the jury would have disregarded their oath, the law and evidence, and rendered a verdict against the defendants if they had known of the liability insurance. This reasoning is not valid and acceptable under prior decisions of this Court and the Supreme Court.
In Bourne v. Barlar (1933), 17 Tenn.App. 375, 67 S.W.2d 751, this Court said:
“Each juror knows that it is unjust and wrong to award a verdict against a defendant simply because he may have insurance and when he does so he stultifies himself and is unworthy to sit as a juror. Each juror who has intelligence enough to be a juror knows that when he, by his verdict, unjustly takes money from a defendant, he does him a very great wrong.” (Supra, p. 379, 67 S.W.2d p. 753)
In Marshall v. North Branch Transfer Co. (1933), 166 Tenn. 96, 59 S.W.2d 520, the Supreme Court said:
“The case before us involves more than mere comment by the jury on the fact of insurance.
At a time when the members of the jury were not agreed as to defendant’s liability for plaintiff’s injuries, ‘the matter of insurance was discussed for some time,’ and some of the jurors urged the assumed fact of insurance upon their dissenting fellow jurors as a reason for the surrender of the conclusion they had gained from the evidence. The language is that some of the jurors ‘kept insisting that on account of the insurance’ a verdict for the plaintiff should be agreed to and rendered.
We think this was positive misconduct on the part of the jury, calculated to prejudice the rights of the defendant and to defeat the proper performance of the jury’s duty to render an impartial verdict on the law and evidence submitted to them in open court. And when it is shown by the uncontradicted statements of four members of the jury that they were thereby induced to assent to a verdict against which they had theretofore held out, we think a case of misconduct, affirmatively shown to have affected the result of the trial, is made to appear. A verdict so influenced and brought about should not be permitted to stand.” (Supra, pp. 100, 101, 59 S.W.2d p. 521)
Our harmless error statute provides as follows:
“27-117. Technical errors affecting result. — No verdict or judgment shall be set aside or new trial granted by any appellate court, in any civil or criminal cause, on the ground of error in the charge of the judge to the jury, or on account of the improper admission or rejection of evidence, or for error in acting on any pleading, demurrer, or indictment, or for any error in any procedure in the cause, unless, in the opinion of the appellate court to which application is made, after an examination of the entire record in the cause, it shall affirmatively appear that the error complained of has affected the results of the trial.”
Since this statute was passed this Court has held in several cases that errors based on probabilities are not grounds for reversal but there must be an affirmative showing that the alleged error affected the results of trial. Monday v. Millsaps (1953), 37 Tenn.App. 371, 264 S.W.2d 6; Management Services, Inc. v. Hellman (1955), 40 Tenn.App. 127, 289 S.W.2d 711; Lyman v. American National Bank & Trust Company (1960), 48 Tenn.App. 328, 346 S.W.2d 289.
After a consideration of the entire record in this case, we are convinced that if it was error for the trial Judge to sustain the motion to strike from the declarations all allegations of insurance and forbid the reading of same to the jury, such was harmless error and did not affect the results of the trial.
Therefore, the first assignment of error is respectfully overruled.
Assignments of error two and three are as follows:
II
“The plaintiffs’ rights were preju-dicially affected by the closing argument of the attorney for the defendant, Joe A. Winn, by the improper suggestion to the jury that the defendants would have to pay any judgment personally.
III
The Trial Court erred in failing to admonish and instruct the jury, at plaintiffs’ request, to disregard the improper and prejudicial argument of the attorney for the defendant, Joe A. Winn.”
Since these two assignments raise substantially the same question we will consider them together.
During his argument to the jury counsel for the defendant, Winn, made the following remarks:
“There is one other thing. Many lawsuits have more repercussions than just this coming in to get money. What duty is Mr. Higgins attempting to put on all the teachers of Montgomery County, Davidson County, all the ninety some odd counties of the state? Does he want to put them in a position that if anything happens in their school, they can be hailed into court and tried by hindsight? That’s what we are doing now. Are they trying to put the teacher in a position that they have to take abnormal steps to stop the negligent misbehavior of the students? Isn’t that what he is trying to do, that a teacher must be able to foresee the future, to guess the future, to foretell what’s going to happen and then head it off even though a student does wrong? Are they going to be hailed into court? Are they going to be asked to pay for it? Is that what they are trying to do? (B. of E. p. 404)
At conclusion of this attorney’s argument the jury was excused and counsel for plaintiffs objected to the above quoted argument of counsel and made the following motion:
“It was highly prejudicial, may it please the Court, and I’m asking the Court to instruct them that there is no evidence on that point and it’s not a proper statement.” (B. of E. p. 407)
In response to said motion the following colloquy occurred between counsel and the trial Judge:
“THE COURT: Well, of course whatever I say to the jury creates another implication that some insurance company is going to pay it.
MR. RUNYON: Well, possibly, your Honor, that’s true. But we didn’t open this box of pandora. We didn’t bring this up. We have now been prejudiced without an instruction.
MR. HIGGINS: If your Honor please, there is an order—
THE COURT: If I signed it.
MR. HIGGINS: — an order in this case which specifically prohibits us from referring to insurance and we have abided by it.
THE COURT: Well, in my instructions I’ll give them something in a general nature. I’m not going to instruct the jury who has to pay or who does not have to pay but they can’t speculate on who does. That’s as far as I can go or we get into an error on insurance.” (B. of E. pp. 408, 409)
In his general charge to the jury the trial Judge said:
“And you must not speculate or try to determine from remarks that you have heard as to who or who will not have to pay a judgment if one is returned.” (B. of E. p. 452)
Counsel for plaintiffs submitted no special request for any additional instruction on this particular subject.
Counsel for plaintiffs did, in fact, submit ten special requests for additional instructions and the trial Judge charged all but one of these requests and the one which was refused did not pertain to any of the questions raised on these appeals.
It has been held that much discretion is vested in the Judge presiding at the trial in governing the arguments of counsel and that it is within the limit of his discretion to determine whether or not he will stop counsel at the time or wait and correct the error in his charge to the jury. Cosmopolitan Life Ins. Co. v. Woodward (1928), 7 Tenn.App. 394.
In Klein v. Elliott (1969), 59 Tenn.App. 1, 436 S.W.2d 867, this Court said:
“The allowance or denial of mistrial (new trial) on grounds of misconduct of counsel is discretionary with the trial judge, and that discretion will be reviewed only in exceptional cases. Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S.W. 623 (1905). In view of the harmless error statute, T.C.A. Sec. 27-117, and the lack of showing that the misconduct actually affected the outcome of the trial, there can be no reversal on this ground.” (Supra, 436 S.W.2d p. 880)
In support of these two assignments, counsel for plaintiffs again refer to the affidavit of juror, Morris Hogan, the text of which is hereinabove quoted, but as we have heretofore said, this affidavit is merely an expression of opinion. Furthermore, it makes no direct reference to the improper argument of counsel for the defendant, Winn.
In our opinion, the averments of this affidavit are not sufficient to affirmatively show that improper argument affected the results of trial, especially in view of the above quoted instruction by the trial Judge to the jury.
There being no affirmative showing that such argument of counsel affected the results of trial, we hold that this was harmless error and the second and third assignments of error are respectfully overruled.
The assignments of error having been considered and overruled,' the judgments of the trial Court are affirmed and the plaintiffs will pay the costs of these appeals.
SHRIVER, P. J., and TODD, J., concur. |
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Leonard BERNARD, d/b/a Leonard Bernard & Sons, Appellant, v. Chester SHARP and wife, Helen T. Sharp, Appellees.
No. 8.
Court of Appeals of Tennessee, Eastern Section.
Feb. 18, 1972.
Certiorari Denied by Supreme Court May 15, 1972.
Badger & McPherson, Kingston, for appellant.
A. Benjamin Strand, Jr., Dandridge, for appellees.
OPINION
PARROTT, Judge.
Leonard Bernard, d/b/a Leonard Bernard & Sons, filed this suit in the circuit court against Chester Sharp and wife, Helen T. Sharp, seeking to recover a real estate commission.
After a hearing below on stipulated facts, the circuit judge entered a judgment of dismissal from which plaintiff has appealed.
Plaintiff is a duly licensed real estate broker whose principal office is located in Roane County, Tennessee. Under a contract entered into with the defendants, plaintiff sold at auction real estate situated within the corporate limits of the city of Jellico in Campbell County. After the sale of the real estate, defendants refused to pay plaintiff’s commission as provided by the contract.
In answer to plaintiff’s declaration, defendants’ special plea alleges: “Plaintiff in conducting said auction sale acted illegally and in violation of the law in that the Plaintiff was not duly licensed to engage in the real estate and auction business in the city of Jellico and therefore the Plaintiff cannot maintain this suit against these defendants.”
It is stipulated plaintiff has not complied with city of Jellico Ordinance No. 6-302 providing:
“No person shall exercise any such privilege within the municipality without a currently effective privilege license which shall be issued by the recorder to each applicant therefore upon such applicant’s compliance with all regulatory provisions in this code and payment of the appropriate privilege tax.”
In the court below the circuit judge’s memorandum opinion is confined to discussion of that part of plaintiff’s theory that the sale was a single isolated transaction not requiring the payment of a license fee. We agree with the circuit judge’s conclusion that since the plaintiff was legally engaged in the real estate business, the “single transaction rule” would not be applicable so as to excuse plaintiff from paying a privilege license. See Frierson v. Ewing, 32 Tenn.App. 366, 222 S.W.2d 678; Wender v. Lobertini, 151 Tenn. 476, 267 S.W. 367.
Appellant’s second contention raises the question of whether or not under the authority of T.C.A. 67-5116 a real estate agent is required to purchase a privilege license other than in the county where his principal place of business is situated.
T.C.A. 67-5116 in part provides: “But whenever a real estate agent or real estate salesman has paid the tax in the county wherein his principal office or place of business is located, he shall not be liable for a tax in any other county unless he shall remove his principal office or place of business to such county.” (Emphasis supplied.)
Clearly, one of the basic purposes of Chapter 51, which includes T.C.A. 67-5116 and other sections requiring a real estate agent to obtain a license and post a bond, is to protect the public by allowing only persons found to be qualified to engage in the business of selling real estate. Acuff v. Barnes, 208 Tenn. 624, 348 S.W.2d 296.
We think by enacting that portion of T.C.A. 67-5116 as quoted above the legislature intended real estate agents to pay a privilege tax only in the county where their principal place of business is located. The city of Jellico, by city ordinance, cannot supersede or make an enactment contrary to a general act of the legislature.
We find that as a matter of law, since the plaintiff was duly and legally licensed in the county of his principal place of business, he was legally qualified to do business in the city of Jellico without paying an additional privilege tax as provided by the city ordinance.
For the above reasons the judgment rendered for the defendant is reversed. Judgment in the amount of $3850.00 is entered in this Court in favor of the plaintiff against the defendants, Chester Sharp and wife, Helen T. Sharp. The costs incident to this appeal are also taxed to the defendants.
COOPER, P. J. (E.S.), and SANDERS, J., concur. |
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HOGUE AND KNOTT et al., Appellants, v. The KROGER COMPANY et al., Appellees. HOGUE AND KNOTT et al., Appellants, v. NATIONAL FOOD STORE OF LOUISIANA, INC., Appellee.
Court of Appeals of Tennessee, Western Section.
July 14, 1971.
Certiorari Denied by Supreme Court March 6, 1972.
Petition to Rehear Certiorari Denied July 3, 1972.
Frierson M. Graves, Jr. and Longstreet Heiskell, Memphis, for appellants; Heis-kell, Donelson, Adams, Williams & Wall, Memphis, of counsel.
James W. McDonnell, Jr., Memphis, for appellee Kroger Co., Canada, Russell & Turner, Memphis, of counsel.
J. Martin Regan, Memphis, for appellee Pic-Pac Food Stores; Laughlin, Watson, Garthright, Halle & Regan, Memphis, of counsel.
W. Otis France, Jr., Memphis, for appel-lees Robilio and Sarno.
J. Lester Crain, Jr., Memphis, for appel-lee Malone & Hyde; Gianotti, Crain & Bartusch, Memphis, of counsel.
John B. Mack, Memphis, for appellee National Food Stores; Clifton & Mack, Memphis, of counsel.
MATHERNE, Judge.
Chancellor Brooks McLemore, by designation of the Supreme Court of Tennessee, sat on this lawsuit in the absence of Presiding Judge C. S. Carney, Jr.
The complainants and the defendants are competitors in the retail grocery business in Memphis, Tennessee. There is an overlap of interest among some defendants, but basically the defendants are also competitors among themselves.
Two lawsuits are here involved, consolidated for trial and on appeal. In one lawsuit the complainants sued The Kroger Company, Malone & Hyde, Inc., Pic-Pac Food Stores, Inc., and Raymond E. Robilio and Samuel A. Sarno d/b/a Big Star Cash Food Store. These defendants were charged with violating the Unfair Milk Sales Law, T.C.A. §§ 52-331 through 52-334, and the Unfair Frozen Foods Sales Law, T.C.A. §§ 52-335 through 52-341. In the other lawsuit the complainants sued National Food Stores of Louisiana, Inc., charging the defendant violated the two statutes above mentioned and the Unfair Sales Law, T.C.A. §§ 69-301 through 69-306, and the Unfair Cigarette Sales Law, T.C.A. §§ 69-401 through 69-413.
The Original Bills sought an injunction against all defendants restraining any further violation of the statutes referred to, and sought damages allegedly resulting to the complainants due to past and present violations thereof.
The Chancellor heard the cause on oral testimony without a jury. The Chancellor denied the injunction; refused to refer the case to the Master for a finding of the amount of damages suffered; held the complainants not entitled to equitable relief; and dismissed the lawsuits at the cost of the complainants. By six Assignments of Error in this Court, the complainants question the Chancellor’s Decree.
Since the trial, and pending appeal, the parties admit National Food Stores of Louisiana, Inc., has ceased to do business in Tennessee. We therefore hold the question of injunctive relief has become moot as to that defendant. Where it appears the act to be enjoined has ceased to exist, an action for an injunction becomes moot, and will be dismissed. Malone v. Peay (1928) 157 Tenn. 429, 7 S.W.2d 40.
The question of damages presents a different issue, and National Food Stores remains before the Court in that aspect of the litigation. When hereafter discussing the defendants we will be referring to all defendants except National Food Stores on matters relating to the injunction; and we will be referring to all defendants in both lawsuits when discussing damages.
The complainants failed to press the charged violations of the Unfair Sales Law and the Unfair Cigarette Sales Law in the Trial Court. The complainants argue violation of only the statutes relating to milk and frozen desserts in this Court. We therefore narrow the issues to the two last mentioned statutes.
The unlawful practices charged consist of a violation of T.C.A. § 52-332(1) (a), and (4) of the Unfair Milk Sales Law, and of T.C.A. § 52-337 of the Unfair Frozen Dessert Sales Law, the provisions of each statute being similar wherein the following prohibitions are set up: (1) It shall be unlawful for any retailer to sell, advertise or offer for sale within the state of Tennessee any frozen dessert, milk, or milk product for less than cost to such retailer; (2) It shall likewise be unlawful for any person to sell, advertise, or offer for sale any frozen dessert, milk, or milk product, or combination with any other commodity or service at a combined price which is less than the aggregate of the prices for which such frozen dessert, milk, or milk product and such other commodity or service is separately offered for sale.
The cost of the milk or frozen dessert to the retailer is arbitrarily set by statute at a certain per cent above the actual cost to the retailer.
Both statutes, T.C.A. § 52-333, B. 1, and T.C.A. § 52-341, B. 1, (c), provide that any aggrieved person may file an original injunction suit in the chancery court of the county in which the person who violates the provisions of either statute resides to enjoin the further violation thereof, and in such suits if the complainant is found to have been damaged the court may at its discretion decree such aggrieved person damages treble the amount proved.
The alleged wrongful practices complained of (the word milk denoting all controlled products) may be broken down into the following categories:
(1)The sale of milk at the statutory minimum and giving the customer trading stamps based on the amount of the sale.
(2) Advertising the sale of milk at the statutory minimum price without in the same advertisement making a clear, definite statement that no trading stamps will be given on milk purchases.
(3) The giving of extra trading stamps upon a total purchase of a given amount in dollars, without marking up the price of milk to include the cost of the regular stamps and the cost of the extra stamps.
(4) Advertising extra stamps upon a total purchase of a given amount in dollars without in the same advertisement clearly stating milk priced at the statutory minimum cannot constitute a part of the total purchase.
(5) The giving and advertising of discount coupons (for instance 5 pounds of sugar for one cent with a $5.00 purchase) and including milk at the statutory minimum as a part of the total sale to reach the discount amount.
(6) The use of discount coupons on any sale which includes milk at the statutory minimum even though the total purchase of other uncontrolled items exceeds the amount required for the discount.
(7) Advertising and giving one per cent of gross sales to charity without excluding milk priced at the statutory minimum.
Our Supreme Court in Hogue v. Kroger Company (1963) 213 Tenn. 365, 373 S.W.2d 714, held the sale of milk at the statutory minimum and the giving of trading stamps on the purchase is a violation of the Act in question.
Applying the reasoning in the Hogue case, supra, we hold the following practices also to be in violation of the statutes pleaded: (1) The giving of extra or bonus trading stamps on purchases which include the purchase of controlled items at the statutory minimum price. (2) The giving of discount coupons or bonus trading stamps, upon the purchase of a given amount in dollars, and including controlled items at the statutory minimum price as a part of the total purchase to achieve the total dollar amount to get the discount or bonus trading stamps.
The foregoing conclusions are reached based upon the reasoning that the regular stamps, the extra or bonus stamps, or the discount coupons, no matter how they may be characterized, effectively reduce the price of the controlled item below the statutory minimum. Since the Acts do not authorize discounts of any kind, any practice which reduces the price of the controlled items below the statutory minimum does constitute a violation.
The complainants are very insistent the use of discount coupons, or extra bonus trading stamps, on any sale which includes a controlled item sold at the statutory minimum price violates the Acts, even though the total purchase of uncontrolled items exceeds the amount in dollars necessary to obtain the discount or bonus trading stamps. We do not agree.
Complainants here insist the giving of 100 bonus trading stamps, or a discount of 5 pounds of sugar for one cent, on a total purchase of $5.00 cannot be allowed where the total sale of all items equals for instance $9.00, if the customer also at the same time purchases a half gallon of milk at a statutory minimum price of $.58 (58 cents) and that 58 cent purchase is included in the total purchase of $9.00 worth of groceries. This argument is unreasonable, and the practice does not constitute a violation of the Acts. This Court will not require the housewife to go through the “line” a second time to purchase the milk separately, as the complainants argue she would have to do in order for the transaction to be valid.
The established practice of the defendants is to not include the price of milk in any sale on which trading stamps are given. The check-out personnel, where the customer pays for his purchases, are instructed to add on the tape all uncontrolled items purchased, sub-total that amount and give trading stamps on that figure, then the items controlled by the statutes are added to that sub-total for the total sale figure. The check-out personnel are also trained to eliminate from the total sale all items controlled by the statutes and priced at the statutory minimum before determining the total sale for the purpose of redeeming discount coupons or the giving of bonus stamps.
The complainants, in an effort to prove their case against the defendants, induced certain people, including members of the firm of their attorneys, to visit the stores of the defendants and make certain purchases designed to establish the defendants were violating the statutes. The testimony of these “detectives” is rather amusing because at times it appears the defendants’ check-out personnel were better at arithmetic than were the investigators.
The record is not clear, but it appears from 400 to 500 trips were made by these investigators to the stores of the defendants over a period of about four to seven years. The result of this effort on the part of the complainants may be summarized :
(1) Three purchases made at the Laurel-wood Store of defendant National Food Stores of Louisiana on June 15, 1966, December 23, 1965, and August 12, 1966 show the inclusion of excludable items in violation of the Acts. This defendant experienced approximately 4,000,000 transactions per year in its stores under investigation.
(2) The complainant offered evidence of seven purchases from defendant Kroger Company which violated the Acts, but somewhat admitted three of these were not violations. Of the other four alleged violations, the December 20, 1965 purchase may have been legal because there could have been sufficient mark-up in the cottage cheese purchased to permit the giving of stamps. On the purchases made September 2, 1965, September 3, 1965, and February 24, 1966 apparent violations of the Acts are reflected. The defendant experienced approximately 6,000,000 customers per year through its check lanes.
(3) Two purchases on January 27, 1965 and January 4, 1965 from defendant Pic-Pac show apparent violation of the Acts.
(4) One purchase from Giant (connected with defendant Malone & Hyde) on January 4, 1965; and one purchase from Robi-lio and Sarno on January 4, 1965 show apparent violations of the Acts.
When we consider these purchases were designed to trap the defendants and were made with that intent; there is no identification of the checkout personnel involved; the terrifically high volume of business the defendants experience; the number of trips made by the “investigators” ; the period of time covered; and the results obtained, we hold these proven illegal purchases are infinitesimal and do not constitute such violation of the Acts pleaded as would warrant an injunction by a court of equity. In passing on this proof in toto, we are inclined to the view that the sales violations proved, under the circumstances noted, establish substantial compliance with the Acts in question.
We must now consider the alleged advertising violations by the defendants. Both Acts being considered provide in slightly different language that it shall be unlawful for any retailer to advertise, sell, or offer for sale any product in violation of the Act. T.C.A. §§ 52-332(2) (a) and 52-337.
In the Hogue case, supra, the Court was considering the sale of controlled items in violation of the Unfair Milk Sales Law. We hold the reasoning of the Court in that case is equally applicable to the Unfair Frozen Dessert Act. We also hold where the Court in Hogue refers to “sell” and “selling”, the words “advertise” and “advertising” may be substituted in the consideration of the case at bar.
This construction and interpretation of the advertising prohibition is justified because prohibited advertising can not only be a direct violation of the Acts, but it can be the most deceptive violation thereof; direct wherein it blatantly advertises controlled items below cost, and deceptive wherein it misleads the public into thinking the controlled items are offered below cost when in reality they are not so sold.
The defendants testified that milk and ice cream are consistently sold at the minimum price allowed by law. Sample advertisements are in the record wherein trading stamps are advertised in such manner as to constitute an affirmative offer of these stamps with the purchase of milk. Sample advertisements show milk and trading stamps advertised together in such manner as to infer stamps would be given on purchases of milk. We hold this type of advertising is a violation of the statute. It would be very simple for trading stamp advertisements to clearly state that no stamps would be given on the purchase price of designated controlled items sold at the statutory minimum price. We hold the statute places the duty on the retailer to so state in his advertisement; a failure to so affirmatively state is a violation of the statute.
We further hold there is the affirmative duty on the retailer to state in his advertisement of discount coupons, bonus trading stamps, cash rebates, or any other sales promotion practice requiring the purchase of merchandise, that designated controlled items sold at the statutory minimum price are excluded from the sales total required for the advertised discount, gift, bonus stamps, or cash rebate. The defendants have failed to so state in their advertisements of these sales promotion practices, and this failure constitutes a violation of the statutes.
The evidence establishes that in advertising discount coupons the defendants would sometimes exclude designated controlled items sold at the statutory minimum, at other times they did not; at other times they would exclude certain controlled items and not exclude all controlled items. The public cannot be expected to know if the controlled item is, or is not, offered at the statutory minimum; the public has the right to rely upon the statutory prohibition against the advertising of controlled items at less than the minimum price. The duty to clearly and unconditionally comply with the statutory advertising prohibition is just as compelling upon the retailer as is the duty to so comply with the statutory sale prohibition.
The evidence establishes the defendants have violated the statutes in their advertising practices. The violation has been deliberate, consistent, and flagrant. The violations established are such as to justify an injunction issue to restrain any further violations. This finding raises the question of whether injunctive relief is available to the complainants under the facts of this lawsuit.
The testimony of Mr. Hugh H. Hogue, who handles all purchasing and advertising of the Hogue and Knott Supermarkets, reveals the complainants deliberately violate daily the Unfair Sales Law, T.C.A. §§ 69-301 through 69-306, by selling and advertising items at less than cost as defined in that statute; the complainants also violate and plan to continue to violate the Fair Trade Law, T.C.A. § 69-201 through 69-205, wherein they sell and advertise fair trade items at a price below the contract minimum; the complainants advertise a whole bag of groceries free upon certain conditions being met, and the advertisement does not exclude designated controlled items sold at the minimum statutory price; the complainants advertise Prestone Antifreeze at a discount upon the purchase of a stated amount in dollars, and do not exclude in the advertisement designated controlled items sold at the statutory minimum price, neither do the complainants require the purchasers to go through the “line” twice if a controlled item is purchased with other items, when the uncontrolled items equal the required purchase. In short, the complainants admit the same practices which they seek to enjoin the defendants from following, plus the violation of two additional statutes.
To enjoin the defendants would be to approve the illegal practices of the complainants. There is a strong public interest in the statutes being considered. Where, as here, the lawsuit concerns the public interest as well as the private interests of the litigants, a court of equity will not lend its aid to the complainant in such manner as to permit that party to enjoy the fruits of his transgressions at the expense of the public, and at the same time subject his adversary to the close supervision of the in-junctive process. It is readily apparent an injunction as prayed would endorse a flagrant violation of statutes designed to pro-v tect the public interest; the effect of the injunction could be much more harmful than the existence of the wrong enjoined.
In considering this aspect of the case the Chancellor observed:
“Surely to require the Defendants to cease a practice, engaged in by the Complainant under another guise, would be to say the least, an abuse of discretion. To allow one merchant a free hand to entice customers by a violation of one statute and hamstring another for identical violations under a similar law cannot be the acme of equity.”
We agree with the Chancellor that injunctive relief be denied the complainants, because the injunctive process is unavailable to intimidate citizens and to har-rass business competitors; a court of equity in good conscience would be required, under the record, to enjoin the complainants as well as the defendants. These circumstances are foreign to the equitable writ of injunction.
We would observe, without deciding any future litigation, the Commissioner of Agriculture has broad and extensive powers to enforce these statutes. Had that branch of the executive department instituted this lawsuit against all parties hereto, the Chancellor would have had a different proposition before him.
The only defendant charged with giving one per cent of sales to charity as violative of the statutes was the defendant National Food Stores of Louisiana, Inc. We have heretofore held the issue of an injunction as to that defendant is moot. We therefore make no decision upon the issue of whether the advertising and giving to charity one per cent of sales including controlled items sold at the statutory minimum violates the statutes.
On the issue of damages, we hold the Chancellor correctly refused to refer the case to the Master for a determination of the amount of damages suffered by the complainants. This conclusion is based upon the fact that the complainants did not prove they were damaged by the conduct of the defendants including all alleged misconduct of National Food Stores of Louisiana, Inc.
The complainants presented proof that a grocery business of the type in which they are engaged should realize a 5% per year increase in volume; they did not realize a 5% per year increase in volume for the period under consideration, and argue this fact constitutes proof they were damaged by the defendant’s violation of the statutes. Complainants insist the matter should therefore be referred to the Master to determine how much they were so damaged.
Without going into detail as to the insufficiency of the complainants’ proof that they were damaged by the conduct of the defendants, or citing any authority concerning proof of damage, or considering the many factors other than the defendants’ conduct which could have affected complainants’ volume of business, we hold the complainant failed to prove they were damaged by the conduct of any of the defendants. We also reach this conclusion without considering the equities of whether a complainant is entitled to damages resulting from unlawful acts of the defendant, when the complainant is equally guilty of the same or similar unlawful acts. Suffice to say the complainants were not entitled to a reference to the Master on the issue of damages.
It results all Assignments of Error are overruled, the decree of the Chancellor dismissing the complainants’ suits with prejudice is affirmed. Cost of this appeal is adjudged against the complainants.
NEARN, J., and McLEMORE, Special Judge, concur. |
sw2d_481/html/0792-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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INTERNATIONAL SECURITY LIFE INSURANCE COMPANY, Petitioner, v. Selma REDWINE, Respondent.
No. B-3172.
Supreme Court of Texas.
June 7, 1972.
A. J. Bryan, Frank H. Pope, Jr., Fort Worth, for petitioner.
Huff & Bowers, Mike Millsap, Lubbock, for respondent.
DENTON, Justice.
This is a suit for benefits under a medical and hospitalization insurance policy. The trial court, without a jury, rendered judgment for the insured for medical and hospital expenses, plus twelve percent statutory penalty and attorneys’ fees. The insurer’s single point of error in the court of civil appeals asserted the trial court erred in entering judgment for the penalty and attorneys’ fees because there was no evidence of demand as required by Art. 3.-62 of the Insurance Code, V.A.T.S. The court of civil appeals affirmed, holding that the insurance company “by its failure to plead ‘no demand’ has thereby waived the objection.” Tex.Civ.App., 473 S.W.2d 674. We disagree, and accordingly we reverse as to the statutory penalty and attorneys’ fees; however the remainder of the judgments of the trial court and court of civil appeals are affirmed. The right to recover attorneys’ fees and penalty is given by Article 3.62 of the Texas Insurance Code; which reads in part as follows:
“In all cases where a loss occurs and the . . . life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. . . .”
Article 3.62 is penal in nature and must be strictly construed. McFarland v. Franklin Life Insurance Co., 416 S.W.2d 378 (Tex.1967). Making demand for payment of the policy proceeds has been held to be a prerequisite to the recovery of penalty and attorneys’ fees under this statute. Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470 (1937); Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966); Key Life Ins. Co. of South Carolina v. Taylor, 456 S.W.2d 707 (Tex.Civ.App., wr. ref. n. r. e.).
The making of a demand is an essential element of the insured’s cause of action for the recovery of statutory penalty, and attorneys’ fees. Demand must be made thirty days before the filing of the petition upon which the cause is tried, and such demand must be alleged. Demand may be made after the institution of the suit, but such demand must be alleged in an amended petition. The filing of a suit alone does not constitute a demand within the statute. Metropolitan Life Ins. Co. v. Wann (supra); Mutual Life Ins. Co. v. Ford, 6 1Tex.Civ.App. 412, 130 S.W. 769, wr. ref. 103 Tex. 522, 131 S.W. 406.
The record fails to show that demand was made. Thus, the insured failed to establish a compliance with the statutory prerequisite to a recovery of a penalty and attorneys’ fees under Article 3.62, Insurance Code.
The court of civil appeals cited and relied upon International Security Life Ins. Co. v. Ramage, 446 S.W.2d 944 (Tex.Civ.App., wr. ref. n. r. e.), and International Security Life Ins. Co. v. Rosson, 466 S.W.2d 52 (Tex.Civ.App., wr. ref. n. r. e.). These cases are distinguishable; however, the opinions in these cases are disapproved in so far as they conflict with this opinion.
The judgments of the courts below are reformed to deny recovery of statutory penalty and attorneys’ fees. As reformed, the judgments are affirmed. |
sw2d_481/html/0793-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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AMERICAN LIBERTY INSURANCE COMPANY, Petitioner, v. Harold S. RANZAU et al., Respondent.
No. B-3098.
Supreme Court of Texas.
June 7, 1972.
Rehearing Denied July 19, 1972.
Clemens, Knight, Weiss & Spencer, George H. Spencer, San Antonio, for petitioner.
Trueheart, McMillan, Russell & Hoffman, C. W. Trueheart, San Antonio, for respondent.
STEAKLEY, Justice.
The suit here was by the insureds, Harold S. Ranzau and his daughter, Paula, against their insurer, American Liberty Insurance Company. It concerns uninsured motorist coverage under the Texas standard family combination automobile liability policy in question. The policy insured two automobiles owned by Ranzau. Paula suffered personal injury damages of $50,000 while a passenger in a non-owned insured automobile, the injuries having been proximately caused by the negligence of an uninsured motorist. She has since reached her majority. The uninsured motorist coverage was limited to $10,000 for injury to one person. Two aspects of the problem are presented: whether the “other insurance” clause in the policy, with the effect later shown, is valid; and whether, because of the coverage of two Ranzau automobiles, and the payment of a premium for uninsured motorist protection as to each, there is uninsured motorist protection of $20,000 for injury to one insured while riding in a non-owned automobile.
The parties agree that the statement of the case by the court of civil appeals is correct and we lift the following from the opinion. The “Family Combination Automobile Policy,” issued by American Liberty Insurance Company consisted of the original policy and an endorsement. It insured two automobiles owned by Ranzau and contained uninsured motorist coverage required by the Insurance Code of Texas in the limits of $10,000 each person, $20,000 each accident. The premium attributable to this protection is shown by this entry on the face of the Endorsement:
“Uninsured Motorists 10/20 Limits 4.00 3.00”
The parties stipulated that Paula Ranzau was riding as a passenger in an automobile owned by Col. Victor Raphael; that such automobile was struck by an uninsured motorist whose negligence proximately caused the injuries to Paula Ranzau; that at the time of such collision, Col. Raphael had in force and effect a policy of insurance with United Services Automobile Association; and that Col. Raphael’s insurer paid the Ranzaus $10,000 under the uninsured motorist coverage of his policy. The only testimony heard by the trial court related to the injuries of Paula Ranzau, who suffered severe disabling personal injuries. The trial court found that the Ranzaus had suffered actual damages in the sum of $50,000 and there is no complaint of this finding.
The trial court held invalid the “other insurance” provision of the Ranzau policy, so that the prior recovery by the Ranzaus of $10,000 from the Raphael insurer was immaterial; also, that the Ranzau insureds could recover an additional $10,000, i.e., $20,000, from their insurer, American Liberty. The court of civil appeals agreed with the first holding of the trial court but disagreed with the second; it ruled that the Ranzau insureds were entitled to recover from their insurer only the uninsured motorist policy limit of $10,000 for injury to one person. Tex.Civ.App., 473 S.W.2d 249. Both the insured and the insurer filed writ applications. American Liberty Insurance Company attacks the holding that the “other insurance” clause is invalid; the Ranzaus attack the holding that limits them to a recovery of $10,000 from their insurer, American Liberty. We affirm.
The “other insurance” provision in the Ranzau policy is quoted in the margin. It is not questioned by the parties that its terms preclude a recovery in excess of the $10,000 paid the Ranzaus by the insurer of the non-owned automobile in which Paula was a passenger, and this is not before us. The question the parties have brought forward is whether such a device for limiting liability, insofar as insureds are concerned, contravenes the requirements of Art. 5.06-1, Insurance Code, Vernon’s Annotated Texas Statutes:
“No automobile liability insurance * * * covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in the limits described in the Texas Motor Vehicle Safety-Responsibility Act, under provisions prescribed by the Board, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. ...”
Sec. 21 of Art. 6701h, the Safety Responsibility Law, provides in part:
“(b) Such owner’s policy of liability insurance:
“1. Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
“2. Shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: Ten Thousand Dollars ($10,000) because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, Twenty Thousand Dollars ($20,000) because of bodily injury to or death of two (2) or more persons in any one accident, and Five Thousand Dollars ($5,000) because of injury to or destruction of property of others in any one accident.”
American Liberty contends that the court of civil appeals was in error in holding invalid the “other insurance” provision for two basic reasons: that Art. 5.06-1 of the Texas Insurance Code expressly authorizes the State Board of Insurance to subject policy limits of liability to reasonable regulations, and the Board has prescribed the “other insurance” provisions consistent with the statutory requirements; and that it is the intent of the Texas plan of uninsured motorist insurance to provide only $10,000 insurance coverage for injury to one person.
The Ranzaus say in reply that the “other insurance” provision conflicts with the requirements of Art. 5.06-1 which cannot be overridden by the Board of Insurance Commissioners; that Art. 5.06-1 merely fixes a minimum requirement of $10,000 uninsured motorist protection and is subject to liberal construction in favor of the insureds; and that premiums were paid on each policy, i.e., on the Ranzau policy and the Raphael policy, for the uninsured motorist insurance, and it would be unconscionable to permit the insurers to devise a limitation under which payment by one or the other is avoided.
The courts of Texas that have examined the problem have uniformly sustained the position of the insureds. The court of civil appeals here followed Fidelity & Casualty Company of New York v. Gatlin, 470 S.W.2d 924 (Tex.Civ.App.1971, no writ), which court likewise cited the decision of the Supreme Court of Florida in Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.1966) as particularly pertinent in its construction of the uninsured motorist statute of Florida. See also Northwestern Mutual Insurance Company v. Lawson, 476 S.W.2d 931 (Tex.Civ.App.). The opinion in Gatlin contains an extensive collation of authorities showing the divided state of the law on the issue. It would serve no purpose to repeat these copious citations here. We recognize, as American Liberty emphasizes, that our statute provides that its requirements are to be accomplished “under provisions prescribed by the Board.” But the Board may not act contrary to but only consistent with, and in furtherance of, the expressed statutory purposes; and if the “other insurance” clause contravenes the statute, its prescription or approval by the Board is ineffective.
We agree with our intermediate courts and thus join those jurisdictions which have construed their uninsured motorist statutes as precluding the use of “other insurance” clauses to limit the recovery of actual damages caused by an uninsured motorist. The Texas statute states its purposes to be “the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” These are its key words. The statute does not expressly or by any reasonable inference limit the recovery of actual damages to the statutory limits of required coverage for one policy in circumstances where the conditions to liability are present with respect to two policies with different insurers and insureds. This is the effect, however, of “other insurance” clauses, whether in the form of “pro-rata,” “excess insurance,” “excess-escape” or like clauses; one or the other insurer escapes liability, or both reduce their liability. Paula Ranzau was a beneficiary of the uninsured motorist provisions in the policy issued by American Liberty covering the Ranzau automobiles, and in the Raphael policy issued by United Services Automobile Association covering the Raphael automobile in which she was a passenger. This was a contractual benefit for which premiums, presumably computed in the light of the respective risk exposures, were paid by the insureds in each instance; and to permit one policy, or the other, to be reduced or rendered ineffective by a liability limiting clause would be to frustrate the insurance benefits which the statute sought to guarantee and which were purchased by the respective insureds.
As previously noted the court of civil appeals also held that the Ranzaus were entitled to recover only the sum of $10,000 from their insurer as the limit of their uninsured motorist protection, Paula having been injured in circumstances which invoked the non-owned automobile coverage. It was the view of the court that the problem was ruled by Allstate Insurance Co. v. Zellars, 462 S.W.2d 550 (Tex.1970), there being no proof that the Ranzaus had paid an additional and separate premium for non-owned automobile coverage with respect to the second of the Ranzau automobiles covered by the American Liberty policy. In their application for writ from this ruling the Ranzaus point out that premiums of $4.00 and $3.00 were paid for uninsured motorist coverage of $10,000 as to the respective automobiles; and they argue that this coverage is without any distinction between injury to an insured in an owned or a non-owned automobile, or afoot. They emphasize that Zellars rested, in part, upon the fact that non-owned vehicle coverage is separate insurance covering the policy holder as to all non-owned vehicles without regard to the number of owned vehicles named in the policy, and for which no additional premium arises when additional automobiles are added to the policy. It is reasoned from this that the extra uninsured motorist premium of $3.00 paid when the second automobile was added also paid for added non-owned automobile coverage, unlike medical payment coverage for which the insured optionally pays a separate premium, citing Southwestern Fire & Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.1961, no writ).
We agree with the court of civil appeals that Ranzau did not pay an additional premium for or acquire added non-owned automobile protection from an uninsured motorist when he paid the premium of $3.00 for uninsured motorist coverage on the second owned automobile and hence this payment cannot serve as a basis for holding that he has double coverage and can recover two policy limits of $10,000 for injury to one person. Ranzau received such coverage under the basic policy and the premium charged therefor, whether or not the policy covered one or many owned automobiles, and without the payment of an additional premium upon the addition of owned automobiles. Zellars, supra. Moreover, there was consideration for the extra premium of $3.00 upon the addition of the second owned automobile in the protection afforded Ranzau if an insured, while using the second owned automobile, suffered damages at the hands of an uninsured motorist. If it be said that the uninsured motorist premium payment of $3.00 on the second automobile included payment for a second non-owned automobile coverage, and hence would support a doubling of the uninsured motorist limit of $10,000 for injury to one person while riding in a non-owned automobile, it would necessarily follow that the limit would be tripled or quadrupled, by the addition of a third and a fourth automobile, and so on. In our view, this could only follow from proof that a premium was charged and paid for this additional risk exposure and protection; and for the reasons we have indicated, this is not shown in the fact of the extra premium of $3.00 attributable to uninsured motorist coverage on the second automobile upon which the Ranzaus rely.
The judgment of the court of civil appeals is affirmed.
Dissenting opinion.
WALKER, J., in which GREENHILL, REAVLEY and McGEE, JJ., join.
WALKER, Justice
(dissenting).
Unlike the statutes of other jurisdictions, Art. 5.06-1, V.A.T.S. Insurance Code, provides for uninsured motorist coverage in stated limits “under provisions prescribed by the Board.” In view of this stipulation, it is my opinion that the “other insurance” provisions of the policy, which are entirely reasonable and consistent with the purpose of the statute, are valid and effective. I would hold that respondents are entitled to no recovery against petitioner under the facts of this case.
GREENHILL, REAVELY and McGEE, JJ., join in this dissent.
. “ ‘With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
“ ‘Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.’ ”
|
sw2d_481/html/0798-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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TEXAS AND PACIFIC RAILWAY COMPANY, Petitioner, v. Benny Lee ROBERTS, Respondent.
No. B-3145.
Supreme Court of Texas.
June 14, 1972.
Tom L. Farmer, Dallas, Ramey, Brels-ford, Flock, Devereux & Hutchins, Tom Henson, Jack W. Flock and Mike A. Hatched, Tyler, for petitioner.
Jones, Jones & Baldwin, Franklin Jones, Jr., Marshall, for respondent.
McGEE, Justice.
This is a Federal Employers Liability Act, (F.E.L.A.), case and the controlling question is whether or not a Texas Court of Civil Appeals has authority to determine that a jury verdict in favor of the Defendant is against the great weight and preponderance of the evidence.
Benny Lee Roberts was injured while moving a large mechanical device inside of a railroad car. He brought this suit for personal injuries under the Federal Employers Liability Act (Title 45, U.S.C.A., Section 51, et seq.). After deliberating most of one day, the foreman reported that the jury was deadlocked. The trial judge rendered judgment for Defendant based on a partial verdict wherein the jury refused to find any primary negligence. The court of civil appeals reversed the judgment of the trial court and remanded the cause holding that the findings of the jury were against the great weight and preponderance of the evidence. 473 S.W.2d 567. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
The only two series of issues of primary negligence requested by Respondent and submitted by the court (and the jury’s answer thereto) read as follows:
“SPECIAL ISSUE NO. 1: Do you find, from a preponderance of the evidence, that at the time and on the occasion in question, the Defendant failed to furnish Plaintiff with a safe place to work?
“ANSWER ‘YES’ OR ‘NO’.
“ANSWER: NO.”
“In connection with the foregoing Issue, you are instructed that the term ‘safe place to work’ means such a place of work as would have been furnished by a reasonably prudent employer under the same or similar circumstances.
“If you have answered the preceding Special Issue ‘Yes’, and only in that event, answer the following Issue, otherwise, do not answer same.”
“SPECIAL ISSUE NO. 2: Do you find, from a preponderance of the evidence, that the Plaintiff’s injuries, if any, resulted in whole or in part from such failure, if any, as inquired about in the foregoing Special Issue ?
“ANSWER ‘YES’ OR ‘NO’.
“ANSWER: (Unanswered).”
“SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that at the time and on the occasion in question, considering all facts in evidence, that the Defendant failed to furnish Plaintiff with a proper tool to work with?
“In connection with the foregoing you are instructed that the term ‘proper tool’ means such a device that would have been furnished by an employer of ordinary care and prudence under the same or similar circumstances.
“ANSWER ‘YES’ OR ‘NO’.
“ANSWER: NO.
“If you have answered Special Issue No. 3 ‘YES’, answer Special Issue No. 3A, otherwise you need not answer it.”
“SPECIAL ISSUE NO. 3A: Do you find from a preponderance of the evidence that such failure, if any, caused in whole or in part the injuries of the Plaintiff ?
“ANSWER ‘YES’ OR ‘NO’.
“ANSWER: (Unanswered).”
In the court of civil appeals, Roberts raised only two points: (1) The jury’s answers were against the overwhelming weight and preponderance of the evidence and that the trial court therefore erred in not granting his motion for new trial; (2) The granting of a new trial by the trial court or the court of civil appeals for this reason is a matter of procedure and governed by local rather than Federal law in an action under the F.E.L.A. At no time has Respondent contended that the railroad was negligent as a matter of law or that there was no evidence to support the jury’s answers to the issues set out above.
The purpose of the F.E.L.A. is to vest the jury with complete discretion on the factual issue of liability. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). The test set forth in Rogers is once the evidence reaches the point where reasonable minds can differ on the question of liability, the resolution of that issue is committed for final, ultimate determination to the jury. The jury decision on the issue is binding and not subject to being set aside.
“. . . Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. . . .” (352 U.S. 507, 77 S.Ct. 449, 1 L.Ed.2d 499, emphasis added).
Stated another way, once the appellate court determines that the verdict is supported by some evidence about which reasonable minds could differ, the appellate court’s function is exhausted. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946).
Review by an appellate court under Texas “weight and preponderance” standard is precluded where liability of the employer is found by the jury; it is also precluded where the verdict exonerates the employer from liability. Harsh v. Illinois Terminal R. Co., 348 U.S. 940, 75 S.Ct. 362, 99 L.Ed. 736 (1954); Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28 (1958).
It is firmly established that questions of sufficiency of evidence for the jury in cases arising under the F.E.L.A. in state courts are to be determined by federal law. Western & A. R. Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473 (1928); Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952); Rogers v. Missouri Pacific R. Co., supra.
Common reasoning in support of this position has been either that the question is one of “substance,” or that to hold applicable a state rule at variance with the federal rule would interfere with a substantive right granted by the act. Special attention is called to two U.S. Supreme Court opinions giving an exhaustive review of pertinent F.E.L.A. cases. They are: Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1948); Harris v. Pennsylvania Railroad Co., 361 U.S. 15, 80 S.Ct. 22, 4 L.Ed.2d 1 (1959). See also 79 A.L.R.2d § 4, p. 562.
We have concluded that a jury’s verdict on liability issues in F.E.L.A. cases, whether for the employer or employee, cannot be reviewed on appeal using local “weight and sufficiency standards.”
The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed. |
sw2d_481/html/0801-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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John BRAZZEL, Petitioner, v. Sid MURRAY et al., Respondents.
No. B-3103.
Supreme Court of Texas.
April 12, 1972.
Rehearing Denied June 7, 1972.
William Emerson Wright, Houston, for petitioner.
Wood, Burney, Nesbitt & Ryan, Allen Wood, Corpus Christi, for respondents.
McGEE, Justice.
This case involves the effect of the erroneous issuance of a mandate by the Clerk of the Court of Civil Appeals, the costs of court having not been paid at the time and subsequent dismissal of the cause purportedly under Rule 445, Texas Rules of Civil Procedure (T.R.C.P.).
The original suit was filed by John Brazzel on January 4, 1964, against Sid Murray and others. The trial court rendered judgment upon the jury verdict for Brazzel on July 28, 1967. The Court of Civil Appeals (Waco Court) reversed the trial court judgment and remanded the cause for new trial with costs assessed against Brazzel on February 6, 1969. 438 S.W.2d 382. Judgment became final November 26, 1969 when Brazzel’s application for writ of error was overruled by this Court.
The Clerk of the Waco Court issued the mandate to the trial court on December 4, 1969, although Brazzel had failed to pay the costs at that time as ordered by the judgment of the Waco Court and as required by Rule 443, T.R.C.P., which provides :
“On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall not issue and deliver the mandate of the court nor certify the proceedings to the lower court until all costs accruing in the case in such appellate court have been paid, subject to the provisions of Rule 444.”
Rule 444, T.R.C.P., provides for the filing of affidavits of inability to pay the costs as required in Rule 443, T.R.C.P.
Murray subsequently filed a motion in the Waco Court to recall the mandate because of the non-payment of the costs. This motion was granted, and the mandate was recalled on January 22, 1971, and returned to the Waco Court, whereupon the Clerk issued a certificate on February 18, 1971, which stated: “Except for the Mandate of this Court issued December 4, 1969, no mandate in the above has been taken out.”
Murray filed a motion to dismiss the cause in the trial court on February 17, 1971. On March 4, 1971 the trial court entered its order of dismissal relying upon Rule 445, T.R.C.P., which provides as follows :
“In cases which have been reversed and remanded by a Court of Civil Appeals, if no mandate shall have been taken out and filed in the court where the cause originated within one year after the motion for rehearing is overruled or final judgment rendered, then upon the filing in the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending that no mandate has been taken out, the case shall be dismissed from the docket.” [Emphasis added]
On appeal from the order of dismissal, the Court of Civil Appeals (Corpus Christi Court) held that the original mandate, having been mistakenly issued by the Waco Court, was void ab initio and the wording of the Clerk’s certificate need not state that “no mandate has been taken out” within one year of final judgment and affirmed the judgment of the trial court. 472 S.W.2d 814. With these holdings we disagree.
Petitioner’s application for writ of error was granted on the following points:
"1. The Court of Civil Appeals erred in holding, that the mandate, ‘having been mistakenly issued,’ was void ab initio.
“2. The Court of Civil Appeals erred in affirming dismissal under Rule 445, T. R.C.P., as a valid mandate was on file with the trial court from final remand until dismissal.
“3. The Court of Civil Appeals erred in affirming dismissal in the absence of compliance with the requirements of Rule 445, T.R.C.P., that the Clerk certify that ‘no mandate has been taken out’ within one year of final judgment.”
Points one and two will be treated together and are considered controlling; thus, point three is not discussed.
The distinction between a void and voidable judicial act is clearly set out in Murchison v. White, 54 Tex. 78 (1880) as follows:
“A void act is one entirely null within itself, not binding on either party, and which is not susceptible of ratification or confirmation. Its nullity cannot be waived.
“A voidable act is one which is not absolutely void within itself, but which is binding until disaffirmed, and which may be made finally valid by failure within the proper time to have it annulled, or by subsequent ratification or confirmation.”
In Murchison, the Court found the judgment fraudulently obtained in the probate proceedings to be voidable, not void, holding the judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct proceeding for this purpose, or to be reversed on appeal or writ of error, is nevertheless valid until thus vacated or reversed. Other early Texas cases which uphold this distinction stated in Murchison are Wheeler v. Ahrenbeak, 54 Tex. 535 (1881); Cummings v. Powell, 8 Tex. 80 (1852); Burditt v. Howth, 45 Tex. 466 (1876); Fitch v. Boyer, 51 Tex. 336 at 344 (1879); Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920).
In similar situations in which a collateral attack is brought against a judgment, the judgment has been held to be voidable and not void. Moore v. Hanscom, 101 Tex. 293, 108 S.W. 150 (1908); White v. White, 142 Tex. 499, 179 S.W.2d 503 (1944). In Ex Parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (1959), this Court held that judgments which are rendered without observance of statutory requirements which are purely procedural are not void, however irregular or erroneous they may be.
The Texas Rules of Civil Procedure dealing with the issuance and return of the mandate subsequent to judgment of remand in the Court of Civil Appeals are procedural and not necessary to the jurisdiction of the trial court. Continental Casualty Company v. Street, 364 S.W.2d 184 (Tex.1963). In Continental, the case had been retried and judgment entered before the mandate was taken out. This second judgment of the trial court upon remand was held not to be a void judgment.
From December 4, 1969, the date of the original mandate, until February 12, 1971, the date the original mandate was recalled, a mandate was on file with the trial court in this cause. It was an unauthorized mandate, but was valid until recalled. In any event, Petitioner still had an additional year to pay the costs and obtain the issuance of a mandate after the date of recall of the mandate. At no time has there been a period of twelve months in which no mandate has been filed with the trial court, as required by Rule 445, T.R.C.P., as a basis for dismissal.
The Corpus Court erred in holding that the mandate was void ab initio. Until the mandate was recalled by the Waco Court which had issued it erroneously before collection of appellate costs, the mandate was a lawful order of the Court upon which all parties could rely. Murchison v. White, supra.
The judgments of the courts below are reversed and the cause remanded to the trial court for new trial. |
sw2d_481/html/0804-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Mack Shan LEWIS, Appellant, v. The STATE of Texas, Appellee.
No. 44926.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 12, 1972.
James A. Moore, Daniel 0. Newsom, Michael W. Eheman, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist.
Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for robbery by assault. Trial was to a jury which assessed punishment at eight years.
Appellant’s sole ground of error is “The trial court committed reversible error when he refused to allow appellant’s attorney to inspect a copy of a police report which was used or exhibited before the jury, for purpose of cross-examination.”
There were two police officers who testified in this cause, McRae and Spaulding. McRae arrested appellant while appellant was fleeing the scene.
Officer Spaulding was the first officer to testify and after having testified that he had made an offense report which was a “partial summary”, he .then testified that he had read an offense report the day before the trial. At this time the appellant asked the court to have a copy of the offense report for purpose of cross-examination. The officer had testified that he had read several pages of the report, some of which had not been prepared by him. Upon objection by the State to giving appellant the whole report being sustained by the court, the appellant was allowed to have only that portion prepared by Officer Spaulding and not the additional part that he read to refresh his memory.
This is the error assigned by the appellant herein.
When Officer McRae was called to testify, the same request was renewed and the State handed the entire offense report to counsel for appellant. Officer Spaulding was not recalled for further cross-examination. Further, appellant did not preserve his error because no request was made to have the report placed in a sealed envelope and forwarded to this Court for examination on appeal. Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969); Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528 (1962); Stevenson v. State, 456 S.W.2d 60 (Tex.Cr.App.1970).
There being no reversible error, the judgment is affirmed.
ONION, Presiding Judge
(concurring).
I concur in the result reached, but I feel compelled to state my own views to clarify any confusion that may exist in the instant case between the so-called “Gaskin Rule” (Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467) and the “use before the jury” rule. Both of these rules relate to the right of an accused in a criminal case to inspect documents in the possession of the State during the conduct of a trial. The two rules have been discussed on previous occasions.
“Under the ‘use before the jury rule’ a defendant is entitled to inspect, upon his timely request, any document, instrument or statement which has been used by the State before the jury in such a way that its contents become an issue. Sewell v. State, supra. A failure to permit or compel such inspection is reversible error, and a showing of . harm flowing from the error is not required.” White v. State, 478 S.W.2d 506 (Tex.Cr.App. 4-5-72).
Under the “Gaskin Rule” where a witness for the State has made a report or has given a statement prior to testifying, the defendant, after a timely motion, is entitled to inspect and use such prior and available report or statement for cross examination and impeachment purposes, and this right obtains even though the witness has not used the instrument to refresh his memory. See Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App. 4-26-72).
If an accused brings himself within the “Gaskin Rule”,
“ . . . then it is error for the trial judge to fail to require production of a prior and available statement of the witness, though the error may be harmless. The harmfulness of the error is dependent upon whether an examination of the statement by this Court demonstrates that the defendant should have been allowed the statement for the purpose of cross-examination and possible impeachment. Error, of course, will result if the defendant is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any.” (emphasis supplied) Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (concurring opinion).
In the instant case, after Officer Spauld-ing testified, appellant’s counsel on cross examination elicited that he had prepared an offense report. Such report, of course, had not been used before the jury. Counsel then invoked the “Gaskin Rule” by demanding or requesting the report. The prosecuting attorney separated Spaulding’s report from the other offense reports and made the same available to appellant’s counsel. Thereafter, such report was handed to Spaulding by appellant’s counsel and upon further interrogation it was determined that he had also read several pages of the reports made by other officers. At this point, appellant’s counsel requested the remainder of the offense reports used by the witness to refresh his memory. The State took the witness on voir dire and established that he had not prepared any of the other reports requested. Thereafter, the court refused appellant’s request.
The “Gaskin Rule” has been held to be limited to a previous report or statement made by the witness testifying for the State. Artell v. State, 372 S.W.2d 944 (Tex.Cr.App.1963).
Thus, the court’s ruling was in accordance with Artell. This writer has had occasion to criticize the limitation imposed by Artell and would overrule Artell. See Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969) (concurring opinion); Rose v. State, 427 S.W.2d 609 (Tex.Cr.App.1968) (concurring opinion). Cf. Dover v. State, 421 S.W.2d 110 (Tex.Cr.App.1967). See 16 Baylor L.Rev. 51, 60 (1964).
I concur, however, for two reasons. First, the appellant made no effort to incorporate in the appellate record the reports he claimed he was deprived of during the trial. See Leal v. State, supra, (concurring opinion). Second, the record reflects that during the interrogation of Officer McRae, the appellant was handed the entire offense report and made no effort thereafter to recall Officer Spaulding or to show that he was then unavailable.
Despite the above, appellant asserts that when he requested Officer Spaulding’s offense report and the prosecutor dismantled the entire offense report in the presence of the jury in order to comply with the request that such action invoked the “use before the jury” rule. I cannot agree. For a discussion of the invocation of the “use before the jury” rule, see White v. State, supra.
For the reasons stated, I concur.
. For a discussion and analysis of the interrelationship between the two rules, see, e. g., Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.1963) ; Dover v. State, 421 S.W.2d 110 (Tex.Cr.App.1967) ; Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (concurring opinion) ; Leal v. State, 442 S.W.2d 736, 738 (Tex.Cr.App.1969) (concurring opinion).
See also Hart v. State, 447 S.W.2d 944, 947 (Tex.Cr.App.1970) ; Carey v. State, 455 S.W.2d 217, 219 (Tex.Cr.App.1970).
See generally Comment, Rights of a Criminal Defendant to Inspect Papers in the Possession of the State, 16 Baylor L. Rev. 51 (1964).
. “The rule applies where demand is made after the witness has testified on direct examination and is for the purpose of cross-examination, and possibly impeachment purposes, whether the statement has been used by the witness before trial to refresh his memory or not.” Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962).
|
sw2d_481/html/0806-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Don HUNTER, Appellant, v. The STATE of Texas, Appellee.
No. 44616.
Court of Criminal Appeals of Texas.
May 17, 1972.
Rehearing Denied July 12, 1972.
Jordan, Ramsey & Bradley by Scott Bradley, Dallas, for appellant.
Henry Wade, Dist. Atty., Harry J. Schylz, Jr., Asst. Dist. Atty., Dallas, and
Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for sale of marihuana. Punishment was assessed by the jury at ten years.
The record reflects that Officer Taylor, of the Richardson Police Department, working as an undercover officer, purchased two “lids” of marihuana from appellant on March 24, 1970, in Dallas County, for thirty dollars. The sufficiency of the evidence is not challenged.
Appellant asserts numerous grounds of error in his briefs, only two of which comply with Art. 40.09, Sec. 9, Vernon’s Ann. C.C.P. All other contentions are neither briefed nor discussed.
Appellant urges that the court erred in refusing to grant appellant’s motion for mistrial, when witness Taylor testified that appellant had sold him LSD on March 7, 1969, for the reason that the same was an extraneous offense and prejudiced the jury to the extent that no instruction could have removed the harm.
The record • reflects that on cross-examination of Officer Taylor, the following occurred :
“Q Did he sell you some on March the 7th?
“A Lou Spencer and Don Hunter (appellant) sold me some LSD on March the 7th.
“Mr. Bradley: We object to that and move— ask the court for a mistrial.”
The court sustained the objection and overruled the motion for mistrial.
Appellant urges that the sole subject on direct and cross-examination had been marihuana or “grass” and that the examinations and responses could only lead one to rationally believe that marihuana was the subject of inquiry.
In Mays v. State, Tex.Cr.App., 428 S.W.2d 325, the following occurred on cross-examination by appellant’s counsel:
“Q Mrs. Haynes, you say that he took you by the arm to the register, did he have any weapons with him ?
“A I didn’t see a knife the last time but the two previous times he showed a knife and pulled it on me.”
Appellant moved for a mistrial and same was overruled. This Court said:
“While that portion of the witness’s answer : ‘but the two previous times he showed me a knife and pulled it on me’ was unresponsive and tantamount to evi-' dence of extraneous offenses, no request was made by appellant for an instruction by the court to disregard the testimony. This it was incumbent upon him to do to preserve the error. Perkins v. State, Tex.Cr.App., 213 S.W.2d 681; White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151; Paredes v. State, Tex.Cr.App. 368 S.W.2d 620. We do not agree that, under the record, an instruction by the court could not have cured the error. It should also be observed that appellant, by his continued cross-examination of the witness with reference to the two prior occasions she related he came into the store, waived his objection to the testimony. Further, it was appellant rather than the state who elicited the unresppn-sive answer of the witness.”
As in Mays v. State, supra, in the instant case, no request was made by appellant for an instruction to disregard the testimony. See Howard v. State, Tex.Cr.App., 387 S.W.2d 387. Further, as in Mays v. State, supra, it was appellant rather than the state who elicited the unresponsive answer of the witness. See Rogers v. State, Tex.Cr.App., 420 S.W.2d 714. No error is shown.
Appellant complains that the classification of marihuana in the Narcotic Drug Regulations Act with its attendant punishment and sentencing provisions is arbitrary and deprives the appellant convicted thereunder of equal protection of law.
This contention was answered adversely to appellant in Reyna v. State, Tex.Cr.App., 434 S.W.2d 362, where it was said:
“the inclusion of marihuana in the statutory definition of ‘narcotic’ in a class with heroin and other physically addicting drugs is not an unreasonable and arbitrary classification violative of due process and equal protection of the law. People v. Stark, 157 Colo. 59, 400 P.2d 923; Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873, supra; State v. Page, 395 S.W.2d 146 (Mo.); Jenkins v. State, 215 Md. 70, 137 A.2d 115; People v. Mistriel, 110 Cal.App.2d 110, 241 P.2d 1050; People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813.”
The judgment is affirmed.
Opinion approved by the Court.
.In citing Reyna v. State with approval, we are not unaware of recent contrary decisions by courts of other jurisdictions. See People v. McCabe, 49 U1.2d 338, 275 N.E.2d 407, (Ill.Sup.Ct.1971) ; People v. Sinclair, 194 N.W.2d 878 (Micli.Sup. Ct.1972) ; State v. Kantner, 493 P.2d 306, 10 Cr.L. 2321 (Hawaii 1972).
|
sw2d_481/html/0808-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Charles Mike KANE, Appellant, v. The STATE of Texas, Appellee.
Nos. 45494-45496.
Court of Criminal Appeals of Texas.
June 7, 1972.
Jim Hamilton, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and George Karam, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The convictions are for robbery by assault, burglary with intent to commit theft and felony theft; the punishment, eight years imprisonment.
The appellant waived jury trials and entered pleas of guilty before the court to each of the three separate charges.
The appellant’s first ground of error is that “The trial court failed to ask the question or adduce any evidence that the defendant was sane, the only way the conclusion could have been reached that he was sane was by a mere conclusion and observing the defendant’s demeanor.”
The record shows the trial judge stated, “Very well, the defendant appears sane and the court will accept his pleas of guilty on these matters.” No issue was made at the time the pleas of guilty were entered regarding the appellant’s sanity, therefore, his contention on appeal is without merit. See Ring v. State, 450 S.W.2d 85 (Tex.Crim.App.1970); Perez v. State, 478 S.W.2d 551 (Tex.Crim.App.1972) and Parrish v. State, 170 Tex.Cr.R. 186, 339 S.W.2d 670 (1960).
The appellant’s second ground of error is “The trial court did not ask the defendant if he was pleading guilty because of consideration of fear or persuasion. There was no evidence adduced indicating whether or not the defendant was pleading guilty out of fear.”
Article 26.13, Vernon’s Ann.C.C.P., provides :
“If the defendant pleads guilty, or enters a plea of nolo contendere he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”
No question could be raised had the trial judge used the precise wording of the statute to ascertain whether the appellant’s plea was influenced by consideration of fear or by any persuasion. Since this was not done, it is necessary to determine whether the record reflects that when the pleas were received it appeared that the appellant was influenced by any consideration of fear or by any persuasion.
The appellant appeared with counsel of his own choice and stated that he had ample opportunity to consult counsel concerning the charges before the court. The court asked appellant “Has anyone promised that you would get out lightly or get a pardon from the Governor of the State of Texas in an effort to induce you to plead guilty?” He responded, “No, Your Honor.” After the court had carefully advised him as to the range of penalty he might receive as a consequence of a plea of guilty and that the court was not bound by any recommendation which the State might make as to punishment, the appellant agreed that he “want(ed) to persist in (his) pleas of guilty.” Recently, in Gaither v. State, 479 S.W.2d SO (1972), we quoted from Schnautz v. Beto, 416 F.2d 214 (5th Cir. 1969), “All pleas of guilty are the result of some pressures or influences on the mind of the defendant
While the admonishment quoted should not be emulated, we conclude that under the facts of this case it was sufficient. We urge that the exact language of Article 26.13, V.A.C.C.P., be followed in admonishing defendants. See May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948) and Ex parte Chavez, - S.W.2d - (No. 45,541, May 31, 1972).
The judgments are affirmed.
Opinion approved by the Court.
. The judgment recites “ . . . and it plainly appearing to the Court that the Defendant was sane and that he was uninfluenced by any consideration of fear, or persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea was accepted by the Court . ” Even though the judgment recites that the defendant was admonished in the terms of the statute that is not sufficient if the record shows to the contrary. In Ex parte Battenfield, 466 S.W.2d 569 (Tex.Crim.App.1971), this court, quoting from the concurring opinion in Wilson v. State, 456 S.W.2d 941 (Tex.Crim.App.1970), said, “The problem has been whether or not the record reflects the contrary despite the judgment’s recital. And the judges of this Court have not always agreed as to what constitutes a showing to the contrary. Williams v. State [Tex.Cr.App., 415 S.W.2d 917], supra. See Alexander v. State [163 Tex.Cr.R. 53, 288 S.W.2d 779], supra; Braggs v. State [169 Tex.Cr.R. 405, 334 S.W.2d 793], supra; Henage v. State, 171 Tex.Cr.R. 541, 352 S.W.2d 122; Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709; Ex parte Miller, 169 Tex.Cr.R. 235, 332 S.W.2d 720; Ex parte Muckelroy, 171 Tex.Cr.R. 616, 352 S.W.2d 835.” See also Ex parte Chavez, Tex.Cr.App., 482 S.W.2d 175 (No. 45,541, May 31, 1972) and Rogers v. State, Tex.Cr.App., 479 S.W.2d 42 (1972).
|
sw2d_481/html/0810-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Willie Lee ANDERSON, Appellant, v. The STATE of Texas, Appellee.
No. 45151.
Court of Criminal Appeals of Texas.
June 28, 1972.
Wardlaw, Cochran, Neal & Quillin by Ronald W. Quillin, Fort Worth, for appellant.
Doug Crouch, Dist. Atty., Roger Cramp-ton, T. J. Haire, Jr., and Ann Delugach, Fort Worth, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for burglary, with the punishment assessed by the court under Art. 62, Vernon’s Ann.P. C., at 12 years’ confinement.
Appellant, in three grounds of error, contends that the evidence was insufficient; that the State failed to prove lack of consent of the owner to the taking of the goods by the appellant from the premises and that the State failed to show any corporeal personal property belonging to the owner was taken from the premises. All three grounds shall be discussed together.
The evidence most favorable to the verdict of the jury shows that on August 24, 1969, between the hours of 2:30 p. m. and 7:30 p. m., the Robinson Roofing Company in Fort Worth was burglarized and a number of office machines was taken. Entry was gained through the breaking of a window.
Brooks Woodfin, general manager of the company, stated that he secured the building at 2:30 p. m. on the date in question. He further testified that the building contained office machines belonging to the business and most of them were taken in the burglary. He also testified that a Remington calculator taken in the burglary was recovered and that he was able to identify it by the serial number. He further testified that he had given no one other than employees permission to enter the building and had given no one permission to take the business machines from the building. He further stated that he didn’t think he had ever seen the defendant before the occasion in court.
Marshall T. Robinson testified he was owner of the business on the date of the burglary and further testified as follows:
“Q Directing your attention to August 24th, 1969, on Sunday, did you have occasion to go to your place of business ?
“A Yes, I was called down by one of my employees, Mr. Don Stregall, sales manager of the firm.
“Q And what did you find when you got down there?
“A We found that the business had been broken into access through a rear window. That almost all of our office machines had been stolen.
“Q Did you give anyone consent to enter that building and steal anything?
“A No, positively not.
“Q Did you give this defendant Willie Lee Anderson consent to break into your place of business ?
“A No, I gave no one.
“Q What is you — Where is your business located? Is it in Fort Worth, Tar-rany Count?
“A Yes, sir, at that address, 1301, 03 and 05 Foch Street.
“Q Did you give anyone permission to remove any of your property from your building?
“A No.”
The State presented further testimony that a calculator had been pawned on Monday, August 25th, 1969, by a man later identified in court as being the appellant herein, this being the same machine identified by Woodfin.
The appellant presented alibi witnesses in his behalf, whose testimony the jury rejected.
When the owner of the burglarized premises testifies that he did not give the appellant permission to enter the premises and that he gave no one any permission to steal any property, this satisfactorily proves the owner’s lack of consent to the breaking and taking. Blodgett v. State, 397 S.W.2d 443 (Tex.Cr.App.1966); Gonzalez v. State, 162 Tex.Cr.R. 600, 288 S.W.2d 503 (1956).
Appellant’s reliance on Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417 (1958) and other cases cited in his brief all involve situations where there is no direct proof of want of consent by the owner to either the breaking or the taking.
This is not the situation here, because of the above testimony by the owner.
The manager of the burglarized premises testified that property was stolen from the premises and he gave no one permission to take the same. The owner of the premises testified that it was the property of the business and that he gave no one permission to take the same and further, that he was the owner of the burglarized premises.
In order to sustain a conviction for burglary, it is not necessary to show that any property was actually taken, it is only necessary to show that the entry was made with intent to steal. See Art. 1388, V.A. P.C.
There being no reversible error, the judgment is affirmed. |
sw2d_481/html/0812-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Jesse L. BARBER, Appellant, v. The STATE of Texas, Appellee.
No. 44710.
Court of Criminal Appeals of Texas.
April 19, 1972.
Rehearing Denied July 17, 1972.
Harold War ford, San Antonio, for appellant.
Ted Butler, Dist. Atty., Antonio G. Cantu, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the court at ten years.
The record reflects that on September 23, 1970, Officer H. Rangel, who was at that time assigned to undercover work for the narcotics division of the San Antonio Police Department, received information that appellant was selling heroin at a named address in that city. Officer Rangel proceeded to the named address, where he purchased a capsule of heroin from appellant.
Appellant contends that the trial court committed reversible error by admitting into evidence a portion of Officer Rangel’s offense report. That part of the offense report of which complaint is made reads:
“While working as a Narcotics Undercover Officer, I, Officer Rangel received information Jesse L. Barber alias Slim was selling capsules of Heroin at the above location.”
Counsel for appellant objected to the admission of this portion of the report, and his objection was overruled.
Being a question of law for the court to decide, hearsay information as to the existence of probable cause should not be heard by the jury. The admission of such evidence over the timely objection of the accused constitutes error, e. g. Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202; Vara v. State, Tex.Cr.App., 466 S. W.2d 315; Rosales v. State, Tex.Cr.App., 399 S.W.2d 541; Ramos v. State, Tex.Cr.App., 395 S.W.2d 628.
The state contends that the above stated rule has no application to the instant case, arguing that appellant’s having waived any objection to the admissibility of other parts of the offense report made the entire report admissible under Article 38.24, Vernon’s Ann.C.C.P., which provides that:
“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”
In the case at bar, the state, not the appellant, introduced the report; therefore, the rule announced in Article 38.24, supra, is not applicable. Nor did appellant use the report during his cross-examination of the officer in front of the jury or cross-examine him concerning this information which led the officer to appellant. Appellant did cross-examine the witness as to whether a named party was “one of his informers” or was the person with whom the witness had had a “conversation” just prior to the commission of the offense. He also asked the officer whether he had made any notes concerning the transaction in question. However, nowhere in the record did appellant inquire about the details of the information acquired by the officer at the time of the transaction or assert that his testimony was at variance with the offense report.
Having determined that the admission of the hearsay portion of the offense report was error, we must turn to facts of this particular case to decide whether such error requires reversal. Compare Figueroa v. State, supra, with Williams v. State, 113 Tex.Cr.R. 219, 18 S.W.2d 654.
In the instant case, three witnesses testified at the trial. Officer Rangel related that he had bought a capsule of heroin from appellant. Dennis Terraco, a chemist with the San Antonio Police Department, identified the substance purchased by Officer Rangel as being heroin. Appellant took the stand in his own behalf and denied that he had ever sold heroin to Officer Rangel or to anyone.
The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. One reason for the rule excluding hearsay is that the jury should be allowed to judge the demeanor of the witness on the stand, both during his direct testimony and during cross-examination, in order to effectively determine his credibility. 1 McCormick & Ray, Texas Evidence, Sec. 792.
In the instant case, two witnesses testified concerning the transaction, one as to how it transpired and the other denying that it took place. In support of its witness, the state was allowed to place into evidence an extraneous offense by the un-sworn statement of a third party who the jury never saw and who appellant was never allowed to test through cross-examination. Thus, the most basic reason for excluding the out of court statements of third parties was violated.
We hold that the admission of the hearsay portion of the report constituted reversible error.
In view of our disposition made herein, other grounds of error will not be discussed.
The judgment is reversed and the cause remanded.
. See Garcia v. State, Tex.Cr.App., 473 S.W.2d 488; Mabou v. State, Tex.Cr.App., 429 S.W.2d 891.
. See Ward v. State, Tex.Cr.App., 474 S.W.2d 471.
|
sw2d_481/html/0814-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Raymond REED, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45010.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 19, 1972.
Melvyn Carson Bruder, Dallas (Court appointed on Appeal), for appellant.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This is an out of time appeal from a conviction on October IS, 1963, for the offense of burglary. Punishment was enhanced under Article 63, Vernon’s Ann.P.C., and was assessed at life.
The record reflects that appellant filed a writ of habeas corpus pursuant to Article 11.07, Vernon’s Ann.C.C.P. The Honorable John Mead, Judge of Criminal District Court Number 4 of Dallas County, entered an order granting petitioner an out of time appeal.
However, the record contains neither findings of fact and conclusions of law entered by the trial judge, nor a transcript of the habeas corpus hearing. Under this state of the record, this court cannot determine whether appellant is entitled to an out of time appeal. See, Ex parte Castanuela, Tex.Cr.App., 435 S.W.2d 145; Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.
This appeal is therefore dismissed without prejudice to appellant’s right to re-apply to the trial court for findings of fact and conclusions of law in order for this court to make an intelligent determination of the alleged violations of appellant’s constitutional rights. |
sw2d_481/html/0815-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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John WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
No. 44437.
Court of Criminal Appeals of Texas.
Feb. 23, 1972.
Rehearing Denied July 12, 1972.
Garland G. Wier, San Antonio, for appellant.
Ted Butler, Dist. • Atty., and Lucien B. Campbell, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction was for a violation of Article 535c, Vernon’s Ann.P.C.; knowingly and intentionally exposing with lascivious intent his private parts to a person under the age of sixteen years. The punishment, five years.
The appellant’s only ground of error is “The trial court committed reversible error in permitting the state to introduce evidence of an extraneous offense . . . ”
Two girls under the age of sixteen years testified that at approximately 7:45 p. m., June 13, 1969, they were walking to the drugstore near the home of one of the girls. The appellant, driving a white automobile, drove up beside them and asked them if they wanted a ride. One of the girls said “no”. The other girl who was closer to the curb looked to see who was in the car. She saw the appellant, who was nude from the waist down. He was holding his private parts “using his hands to make sure she could see it.” She screamed at her companion “don’t look — just run.” The girls ran from the scene. They ran toward a store to make a telephone call to the mother of one of the girls. The appellant again drove by, laughing at them. The girls observed and remembered the license plate number on the appellant’s automobile to be GYW-916. Soon after the offense was committed, the girls related to a police officer what had occurred.
Appellant did not testify; he offered evidence attempting to prove an alibi.
Kate Ward, manager of a motel in Ar-ansas Pass which she said was 150 miles from San Antonio, testified appellant, his wife and mother arrived at the motel at 6:30 or 7:45 p. m. on June 13, 1969. She thought they arrived in a pickup. The appellant’s father, she said, arrived at the motel at about daybreak Saturday morning, June 14, 1969.
The appellant’s mother testified that the appellant, his wife and she left San Antonio about 3:00 p. m. June 13, 1969, in her husband’s pickup and arrived in Aransas Pass at 6:30 to 7:00 p. m. Her son was not out of her sight until after 9:00 p. m. that evening. She testified her husband arrived the next day in Aransas Pass at about daylight. He was driving her son’s cream colored Buick automobile which had been parked across the street from her house when they left San Antonio. She said her husband left Aransas Pass for San Antonio at noon Sunday, June 15, 1969, driving the pickup and taking the boat to leave it at Rockport on his way to San Antonio. Appellant’s mother said that the appellant, his wife and she left Aran-sas Pass in the Buick automobile and drove to Brownsville to visit her mother. They arrived on the evening of the 15th. She said that they remained in Brownsville until June 21, 1969, and that Brownsville was a 5½ hour drive from San Antonio. During the time they were in Brownsville, the appellant was not out of her sight for more than two hours at a time. On June 21, 1969, the appellant, his wife and she drove from Brownsville to Rockport. Several checks signed by the appellant’s mother which had been dated and negotiated during the time of their trip at various places before they returned to San Antonio on June 24, 1969, were introduced into evidence.
The appellant’s father testified that he drove a tan or cream colored 1962 model Buick automobile belonging to the appellant John Williams to Aransas Pass. He said this automobile had been parked iacross the street from his house in San Antonio with the keys in it before he started his trip to Aransas Pass at 3:00 a. m. on Saturday, June 14, 1969. He said the appellant usually drove the Buick automobile. Appellant’s father did not see the Buick automobile he left with his family on June 15th until he rejoined them in Rockport on June 21, 1969. He also testified the appellant’s wife’s name was Antoinette.
In rebuttal the State offered the testimony of a fifteen-year-old girl showing she and her girlfriend were walking down a street in San Antonio on the afternoon of June 18, 1969. A white car pulled up beside them and the man driving the car asked if they would like to earn some money. When the girls looked toward him, they observed that he had on no clothes and he was laughing at them. They were unable to identify the appellant as being the driver of that automobile. They were unable to describe the make and model of the automobile but thought that it was a four-door automobile. They did memorize and report to Officer Fleming that the license number on the automobile was GYW-916 and that the driver was an Anglo male, 25 to 28 years old with curly hair who needed a shave.
The custodian of the records of the Automobile Department of the Bexar County Tax Assessor-Collector’s Office testified that the automobile for which the license plate GYW-916 had been issued was a 1962 four-door Buick automobile, registered in the name of Antoinette G. Williams.
The appellant specifically urges that “The evidence relative to the extraneous offense could not be brought within any of the recognized exceptions to the rule which forbids the introduction of evidence of extraneous offenses”; that it was error for the trial court to admit evidence of the details of any extraneous offense; and that the State failed to prove that the appellant was the “perpetrator” of the extraneous offense.
“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of the person or crime, intent, motive, scienter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him.” 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300-301; and see Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1969) and Blankenship v. State, 448 S.W.2d 476 (Tex.Cr.App.1969).
A closely related rule is that:
“If evidence is competent, material and relevant to the issues on trial, it is not rendered inadmissible merely because it may show that the defendant is guilty of another crime.” 1 Wharton, Criminal Evidence Sec. 233 (12th ed. 1955); 1 Branch’s Ann.P.C. Sec. 188 (2d ed. 1956).
The appellant offered detailed alibi evidence to account for his presence from 3:00 p. m. June 13, 1969, until June 24, 1969. A considerable amount of this evidence offered concerned the whereabouts of the Buick automobile. Both direct and circumstantial evidence showed it to be the automobile used by the appellant during the commission of the offense for which he was charged. Evidence to show the location of the Buick automobile became relevant because of the alibi evidence offered by appellant. The State had the right to attack and attempt to disprove the appellant’s evidence as to the whereabouts of the automobile. The State’s evidence showed the automobile to be in San Antonio on the afternoon of June 18, 1969, where it was seen by the two young girls.
There is a distinction not often recognized between the offering of evidence to rebut a defensive issue such as alibi which incidentally tends to show or does show the commission of an extraneous offense and the offering of proof of an extraneous offense for the purpose of showing intent, system or scheme, motive, absence of mistake or identity.
The distinction, however, was recognized by Presiding Judge Hawkins in Ivey v. State, 212 S.W.2d 146 (Tex.Cr.App.1948), where he said:
“The state, for the purpose of showing the improbability of his defensive theory, introduced the evidence complained of. Under such a state of facts, the evidence became admissible notwithstanding it tended to show an extraneous offense. Of course, the evidence was not admissible for the purpose of impeachment, or showing intent, identity, etc. We did not base our opinion holding it admissible upon any such theory. One of the best-known exceptions to the rule against proving extraneous crimes is that any competent evidence which tends to defeat the defense urged is admissible though it tends to show another offense.”
The State did not offer the testimony for the purpose of showing the commission of an extraneous offense. The testimony was offered for the purpose of and it was properly admitted to rebut the appellant’s defense of alibi. That the State’s evidence tended to show an extraneous offense was incidental to the purpose for which it was offered. Compare Schneider v. State, 392 S.W.2d 130 (Tex.Cr.App.1965) and Hutchins v. State, 172 Tex.Cr.R. 525, 360 S.W.2d 534 (Tex.Cr.App.1962).
Where, as here, the evidence is offered to rebut the defensive issue there need not be proof as urged by the appellant that the appellant was the “perpetrator” of the extraneous offense which may incidentally have been proved. Compare Chambers v. State, 462 S.W.2d 313 (Tex.Cr.App.1970); Hart v. State, 447 S.W.2d 944, 951 (Tex.Cr.App.1969) and Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364 (Tex.Cr.App.1958), cert, denied, 360 U.S. 917, 79 S.Ct. 1434, 3 L.Ed.2d 1533 (1959), rehearing denied, 361 U.S. 855, 80 S.Ct. 45, 4 L.Ed.2d 94 (1959).
Appellant’s ground of error is overruled. The judgment is affirmed.
Opinion approved by the Court.
ODOM, Judge
(concurring).
I concur in the result reached by Judge Dally, but for the reasons expressed herein.
The testimony of the fifteen year old girl was that she and a companion were walking down a street in San Antonio on the afternoon of June 18, 1969, when a white car pulled up beside them. The male occupant of the car asked them if they would like to earn some money. The man was nude and laughing at them. The girls memorized the license number and telephoned the police. It was shown that the license number of the automobile was GYW-916. An automobile with that license number was shown to have been registered in the name of appellant’s wife.
Although the girl was unable to identify appellant as the perpetrator of this offense, the state had a right to show that appellant’s automobile was in San Antonio on June 18 in order to impeach his witnesses and to rebut his defensive theory. The testimony concerning the extraneous offense was incidental to showing that the automobile was in San Antonio.
When evidence is offered for one purpose and satisfies all the requirements for admissibility applicable to that purpose it does not become inadmissible because it could not be admitted for some other purpose, or because a jury might consider it in the latter capacity. Stallings v. State, Tex.Cr.App., 476 S.W.2d 679 (1971) ; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739 (1971); 1 Wigmore, Evidence, Sec. 13 (3d Ed.).
A witness should be permitted to testify concerning collateral facts that serve to fix in his memory a material fact to which he has testified. Brittain v. State, Tex.Cr.App., 40 S.W. 297; Bice v. State, 37 Tex.Cr.R. 38, 38 S.W. 803; 61 Tex.Jur.2d, Witnesses, Sec. 133. The reason for allowing such testimony is:
“The party offering a witness may desire to make plain the strength of the witness’ grounds of knowledge and the reasons for trusting his belief. This is a legitimate purpose. But, in pursuing it, the witness often will naturally state circumstances which may give indirectly some unfavorable impressions against the opposite party . . . Nevertheless, . the general rule is that the witness may on the direct examination state the particular circumstances which legitimately affected his knowledge or recollection, even though the fact would otherwise be inadmissible . . . ” 2 Wig-more, Evidence, Sec. 655 (3rd Ed.).
While there is some risk that the jury might improperly consider such testimony, the burden is on the opposing party to request a limiting instruction from the trial court; and the refusal to give such instruction may constitute reversible error. Coker v. State, 35 Tex.Cr.R. 57, 31 S.W. 655; 1 Wigmore, Evidence, Sec. 13 (3rd Ed.). Where the competence or logical relevance of this type of testimony is far outweighed by its prejudicial effect, a limiting instruction will be insufficient to alleviate the risk, and the testimony should not be admitted. Dyer v. State, 47 Tex.Cr.R. 258, 83 S.W. 192. However, the initial determination on the admissibility of evidence is within the discretion of the trial court; and this court will not reverse unless a clear abuse of discretion is shown. Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.
The term “extraneous offense” has no magical qualities, and the evidentiary rules governing extraneous offenses when introduced for one purpose need not be invariably applied where the extraneous offense was introduced for some other purpose. In order to determine what principle of law should be applied to a given situation involving the introduction of evidence, it is necessary to determine the purpose for which the evidence was introduced. Having determined that the extraneous offense was not offered for the purpose of proving identity, intent, etc., but was offered for the purpose of showing why the witness remembered that appellant’s car was in San Antonio on the evening in question, the issue to be decided is whether the testimony concerning the extraneous offense was so inherently prejudicial that, even absent a request by appellant for a limiting instruction, the decision of the trial court should be overturned. Dyer v. State, supra ; Brittain v. State, supra; Bice v. State, supra.
Under the facts of the instant case, I can find no clear abuse of the trial court’s discretion in admitting the testimony concerning the extraneous offense.
I concur.
ONION, Presiding Judge
(dissenting).
Today “the majority” adopts a broad, new and dangerous rule — an exception to an exception which finds no support in the law or the particular facts of this case. The majority holds that if any fact connected with an extraneous offense which tends to rebut a defensive issue becomes admissible, then the extraneous offense and all the details thereof also become admissible without any proof that the accused was guilty of such extraneous offense or was its perpetrator. I cannot agree.
The fact that a witness or witnesses saw an automobile bearing license No. GYW 916 in San Antonio on June 18, 1969, would have been admissible in light of appellant’s alibi testimony, but to permit the State to go further and show an extraneous offense and the details thereof without showing that the appellant was the offender was error in my opinion, particularly where the prosecuting attorney testified earlier he had no extraneous offenses in which identification could be made of the appellant as the guilty party.
By offering evidence of alibi the appellant called into question the complaining witness’ identification of him as the man who indecently exposed himself, thus authorizing the admission of any properly proven extraneous offenses on the issue of identity. Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1969). “The majority” admits that the extraneous offense offered would not have been admissible on the issue of identity, intent, system, etc., unless there was proof that the appellant was the perpetrator thereof, but claims there is a different rule where the same evidence is offered, not on the issue of identity, etc., but to refute the defensive theory which in the instant case was alibi. In support of such position the majority cites no authority but asks the reader to “compare” Chambers v. State, 462 S.W.2d 313 (Tex.Cr.App.1970) and Hart v. State, 447 S.W.2d 944 (Tex.Cr.App.1969), both opinions by this writer. Neither stands for the proposition that extraneous offenses or transactions may be offered without a showing that the accused is the perpetrator. In Chambers the witness reported the suspicious conduct of a group of men to the police along with the license number of their vehicle. He did not testify that the group had engaged in any criminal activity and their acts were not shown to relate to any offense. The evidence was offered to show the steps eventually leading to appellant’s arrest. In Hart there was evidence of an extraneous transaction which did constitute a penal offense admitted but Hart was clearly identified as being involved in the extraneous transaction. The evidence was held admissible to show intent, system, design, and identity. Nor in my opinion does the cited case of Cage v. State, 320 S.W.2d 364 (Tex.Cr.App.1958), cert. den. 360 U.S. 917, 79 S.Ct. 1434, 3 L. Ed.2d 1533 (1959), support the position taken by the majority. In Schneider v. State, 392 S.W.2d 130, 133 (Tex.Cr.App.1965), and Hutchins v. State, 360 S.W.2d 534 (Tex.Cr.App.1962), also cited by the majority, the defendants were clearly identified with the extraneous transaction admitted.
In 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294, it is stated:
“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.
There are, of course, exceptions to the general rule.
In 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, it is written:
“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of person or crime, intent, motive, scien-ter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him. These exceptions to the general rule prohibiting evidence of other crimes are discussed in greater detail immediately hereinafter. It must be remembered, however, that even though evidence of another crime may be relevant to the instant proceed ing, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator.” (Emphasis supplied.)
The distinction sought to be made by the majority is thus not recognized.
In 1 Branch’s Ann.P.C., 2d ed., Sec. 188, p. 204, it is written:
“It is error to admit evidence of another offense when defendant is not shown to be the party guilty of that offense.” (numerous cases cited)
And in Shepherd v. State, 143 Tex.Cr.R. 387, 158 S.W.2d 1010, 1011 (Tex.Cr.App.1942), the court said in reversing the conviction :
“Whatever the court’s object was in admitting the testimony, it seems to be well settled in this state that evidence of extraneous offenses shall not be received unless the accused is satisfactorily shown to be a party to the commission of such offense, even though proof of extraneous offenses comes within some of the exceptions. In support of the opinion here expressed, we refer to the following authorities: Fountain v. State, 90 Tex.Cr.R. 474, 241 S.W. 489; Denton v. State, 42 Tex.Cr.R. 427, 60 S.W. 670; Nichols v. State, 138 Tex.Cr.R. 324, 136 S.W.2d 221, and many other cases there cited.” (Emphasis supplied.)
In Perez v. State, 165 Tex.Cr.R. 639, 310 S.W.2d 334 (Tex.Cr.App.1958), this court stated:
“Furthermore, there was no proof connecting appellant with the other thefts and for this reason the evidence should not have been admitted. Wells v. State, 118 Tex.Cr.R. 355, 42 S.W.2d 607; Hughitt v. State, 123 Tex.Cr.R. 168, 58 S.W.2d 509 and Carmean v. State, Tex.Cr.App., 163 Tex.Cr.R. 218, 290 S.W.2d 240.”
In Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968), this court, speaking through Judge Morrison, pointed out that “no extraneous offense should be offered unless the State is prepared to prove that the accused committed the same.” (Emphasis supplied.)
In light of these authorities an examination of the “extraneous offense” introduced should be made.
Della Gallegos testified that on June 18, 1969, she and her girl friend, Jennifer Garcia, were walking down a San Antonio street when a man in a white car pulled up and asked if they would like to earn some money. They observed he had no clothes on and was laughing. They ran and one girl remembered the numerals on the license plate and the other the letters. The police were called. At the time of trial Della Gallegos could not remember the license number. She was unable to identify the appellant saying “his hair was different” and testified no charges had been filed in connection with the incident because of a lack of identification. She was unable to describe the make or model of the automobile other than it was white and she thought it had four doors. She expressly denied that it could have been tan or cream colored.
Officer Fleming testified that it was on June 18, 1969, that he received the report from Della Gallegos and her friend; that the license number given him was GYW 916; that the driver was described as an Anglo male, 25 to 28 years old with curly hair who needed a shave. The report did not reflect whether the license number given was a Texas license or from another jurisdiction, nor does it give the year or the color of the plate. The description of the driver contrasts sharply with that of the complaining witness who identified the appellant and who described the man who exposed himself to her as having “brown hair,” “short brown hair” and being in his late thirties. The actual physical appearance of the appellant and his age are not reflected by this record.
William C. Wilford was called as a rebuttal witness during the trial on September 16, 1970. He identified his position as custodian of the records of the Automobile Department for the Tax Assessor’s office of Bexar County. He was simply asked:
“O. Among those license registration tags and receipts do you have a number GYW 916 registered ?
“A. Yes, I do.
“Q. Could you tell us who that tag is registered to?
“A. It’s registered in the name of Antoinette G. Williams.
“Q. Can you give us the address of Antoinette G. Williams?”
“A. 206 Sonora.”
Thereafter Wilford described the automobile as a 1962 Buick, four-door, but stated the color was not listed. At no time did the witness indicate when such license tags were issued to the automobile in question. Whether he was testifying from current 1970 records, from 1969 or earlier records is not revealed. The license receipts, etc., were not introduced into evidence.
This was all the evidence offered to connect the appellant or the Buick (which the undisputed testimony showed to be tan or cream colored) with the extraneous offense.
Clearly the appellant was not identified as being present and there is no showing that on June 18, 1969, the Buick actually bore 1969 Texas license plate Number GYW 916. Whether the “white car” observed by the witness Gallegos even bore Texas license plates is not established by the record.
The rule forbidding the introduction of other crimes is one of evidence and arises out of a fundamental demand for justice and fairness. Gordy v. State, 159 Tex.Cr.R. 390, 264 S.W.2d 103 (Tex.Cr.App.1953). This general rule should be strictly enforced where applicable because of the prejudicial effect and injustice of such evidence and should not be departed from except under conditions which clearly justify such a departure and are necessary. Higgins v. State, 87 Tex.Cr.R. 424, 222 S.W. 241 (Tex.Cr.App.1920); Urban v. State, 158 Tex.Cr.R. 106, 253 S.W.2d 38 (Tex.Cr.App.1952).
The action taken by “the majority” being neither supported by law or facts is totally unjustified. Even Judge Odom in concurring cannot agree with the reasoning of “the majority.” He concurs in the result but for reasons of his own.
I vigorously dissent.
ROBERTS, J., joins in this dissent.
. In the instant case, appellant did not request a limiting instruction.
. On the hearing of the motion to suppress she testified as to the date, but when testifying before the jury she admitted she could not recall the date and remembered only that the incident occurred during the summer of 1969.
|
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James C. LEWIS, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45073.
Court of Criminal Appeals of Texas.
June 21, 1972.
John T. McCully, Dallas, for appellant.
Henry Wade, Dist. Atty., and John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for robbery by assault, with the punishment assessed by the court at 12 years.
Appellant’s third ground of error complains as follows: “Did the court commit error in failing to instruct a verdict at the close of the State’s case in chief ?”
It is apparent from the above that the appellant is complaining of the sufficiency of the evidence; primarily he is complaining because he is of the opinion that the State failed to prove a robbery by assault in that they did not prove an assault but proved robbery by threats to do an illegal act. Further, appellant complains that the witness Glenn Morrison was not in truth and in fact a special owner of the merchandise taken and that they failed to prove a proper chain of custody to a part of the merchandise admitted into evidence.
The evidence taken most favorably to the verdict of the jury shows that on the 5th day of February, 1970, about 1:15 a. m., Glenn Morrison was driving a truck on Central Expressway in Dallas and that upon leaving the expressway he was stopped by the appellant James C. Lewis and his co-defendant. He was threatened by the co-defendant with a hammer and was told that this was a “hijack.” He stated he was in fear of his life or bodily harm. He further testified that the appellant and the co-defendant took, from the truck he was driving, certain merchandise. He identified merchandise introduced into evidence as being the same type and kind of merchandise as taken from his truck. Morrison further identified both the appellant and his co-defendant as the persons who had stopped him, put him in fear of his life, and removed the merchandise from the truck which he was driving. He further testified that he described the car which they were driving and the fact that it had a Louisiana license plate to the police who later apprehended the appellant and his co-defendant in that type car and recovered from the car the articles which were admitted into evidence.
The overruling of a defendant’s motion for an instructed verdict will be presumed to have been proper. Wilson v. State, 106 Tex.Cr.R. 75, 290 S.W. 1103 (1927). Appellant, in his brief, again advances theories as to his innocence. These theories were heard by the jury and the jury decided the same adversely to appellant.
Secondly, appellant claims that the evidence was insufficient to prove robbery by assault. In Alsobrook v. State, 134 Tex.Cr.R. 322, 115 S.W.2d 668 (Tex.Crim.App.1938) this Court held that the degree of force used is immaterial so long as it amounts to some sort of assault, violence, or putting in fear, and is sufficient to compel one to part with his property. Here, the witness testified that he was in fear of his life or bodily injury due to the fact that appellant and his co-defendant had a hammer and told him it was a “hijack.” Further, that the co-defendant had the hammer in his hand and drew it back like he was going to hit the witness. This evidence is sufficient to show a robbery by assault.
Appellant further complains that the witness Morrison was not shown to be the special owner of the property admitted into evidence. The witness testified that the batteries were his own corporeal personal property without objection. Such evidence is sufficient. See Art. 1408, Vernon’s Ann.P.C.
Appellant’s first ground of error complains, “Did the State suppress evidence that was favorable and of material importance to the defendants in withholding the original container from the jury?” This complaint goes to the fact that there were some 1,200 batteries taken from the truck that were contained in a box and this box was not introduced into evidence, but the batteries had been placed in another box and brought to the trial in the second box. Appellant complains that they attempted to elicit from the police officers why the original container was not put into evidence and that their only excuse was that it was too badly torn to go into evidence. Appellant further says that the box would have supported the appellant’s theory that the box was dropped from the truck when the driver sped away from the scene due to his own mistaken impression he was being robbed. We find this contention to be without merit.
Appellant’s ground of error number two is as follows: “Did the court commit error in allowing certain statements made by the defendants James C. Lewis, Jr. and Ronald Batiste Smith into evidence on the basis that the same are res gestae statements?” Officer Holmes of the Dallas Police Department testified that the complaining witness advised him he had been “hijacked” and that he obtained a description of the vehicle in which appellant was riding. Holmes put the description of the car and its occupants on the air and a short time later was advised that the car and its occupants had been apprehended. Holmes testified over objection of immateriality, to a conversation that he had with appellant when he arrived at the scene of the arrest. The conversation contained no inculpatory statements, but the appellant contends that it was injected solely for the purpose of inflaming the minds of the jurors. The main gist of the conversation was that appellant used a great deal of profanity and that the co-defendant stated, “You are always picking on us black MF’s.”, and that the appellant called the officer a “honky cop.” These statements were not responsive to any question asked and were not in-culpatory. They were made immediately after arrest and no objection was made on the proper ground.
There being no reversible error, the judgment is affirmed.
. Each ground of error is couched in terms of a question. This does not comply with Art. 40.09, Vernon’s Ann.C.C.P. The proper method is by specific allegation of error.
|
sw2d_481/html/0825-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Evodio SALAS, Appellant, v. The STATE of Texas, Appellee.
No. 44860.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Will Hadden, Odessa, for appellant.
John Green, Dist. Atty., and J. A. (Jim) Bobo, Asst. Dist. Atty., Odessa, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is the sale of heroin; the punishment, life.
Pedro Hernandez, Department of Public Safety undercover agent, testified that he purchased two grams of heroin from the appellant for $150.00.
Appellant’s first ground of error is that he was unduly restricted in his cross-examination of the witness Hernandez. The record reflects that the court declined to require Hernandez to answer the following type of questions concerning his prior residences and activities:
“DEFENSE ATTORNEY: When did you go with the Department of Public Safety ?
“WITNESS HERNANDEZ: May 6, 1969.
“DEFENSE ATTORNEY: May 6th.
“WITNESS HERNANDEZ: 1969.
“DEFENSE ATTORNEY: Now where did you live during this period
“DISTRICT ATTORNEY: Judge, at this time the State will object to any place which the agent lives due to his safety and his family’s safety. We do not want his home address brought up in this trial.”
* * * * * *
“DEFENSE ATTORNEY: After you got out of school what did you do.
“WITNESS HERNANDEZ: I worked .. .
“DISTRICT ATTORNEY: Excuse me, any place that the man worked, I keep bringing this up, this is due to safety and previous cases and where he is working now.”
There was, no particularized need developed for the disclosure of such information and under the holding of this Court in Baldwin v. State, 478 S.W.2d 476 (1972), the trial court did not err in declining to require the agent to divulge information which was not material to the case on trial.
Appellant next contends, without citation of authority, that the court erred in permitting the State to introduce “prison packets” as proof of the two prior convictions through which they sought to impeach him when he testified in his own behalf during the guilt or innocence phase of the trial. He claims that once he admitted the convictions and there was no longer a question of identity involved, the only portion of the packets which should have been admitted were the judgments of conviction and the admission of the other material, including appellant’s photo and fingerprints, only prejudiced him in front of the jury. We conclude that the fingerprints and the prison photo could add nothing injurious to appellant once it had been established that he was the person so convicted in the prior cases. Cf. Peterson v. State, Tex.Cr.App., 439 S.W.2d 841.
Appellant’s third ground of error is that the trial court erred when he ruled “that if defense witness, Luisa Lujan took the stand and invoked the Fifth Amendment, she could not testify further after giving her name and address.” He claims she could have answered questions material to appellant’s case without incriminating herself. The trial court made no such ruling. The record reflects that when the defense indicated it would call witness Lujan, who was present during the purported sale, the State announced that Lujan was under indictment and that if she took the stand and testified, her testimony would be used “to impeach her at her own trials.” Moreover, the appellant did not call the witness Lujan in the absence of the jury and ascertain that she would, in fact, invoke the Fifth Amendment if called before the jury. No error has been shown.
Appellant’s fourth contention relates to the jury argument. This ground of error is multifarious and, therefore, not in compliance with Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. Several different objections to a jury argument in the same ground of error cannot be considered on appeal. Sierra v. State, Tex.Cr.App., 476 S.W.2d 285; Rose v. State, Tex.Cr.App., 470 S.W.2d 198. We will, however, briefly discuss some portions of his contentions.
At the outset, we note the alleged improper remarks are, in many instances, misquoted from the record or taken entirely out of context. In other instances the court, upon objection, instructed the jury to disregard the remarks.
For example, the appellant claims that the prosecutor argued that the jury should “abide by the wishes of the community and convict this man.” We have searched the record with care and, although we find that the prosecutor made a plea for law enforcement generally, we are unable to locate the argument appellant cites. On another occasion appellant asserts that the argument that appellant sold “fifty fixes” was outside the record. Hernandez testified that he bought two grams of heroin from appellant and that a gram of heroin yields about 25 doses. It follows that the argument was within the record. We have further examined the argument and find it within permissible bounds.
Finding no reversible error, the judgment is affirmed.
. Each packet included :
(1) Judgment of conviction and sentence.
(2) Certificate of authenticity from tire record clerk of the Texas Department of Corrections.
(3) Side and front picture of appellant.
(4) Appellant’s fingerprints.
(5) Texas Department of Corrections’ data sheet containing appellant’s physical description.
|
sw2d_481/html/0827-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Leroy Larry SENNETTE, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45126.
Court of Criminal Appeals of Texas.
June 21, 1972.
Kerry P. FitzGerald, Dallas, for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction is for robbery by assault; the punishment, sixty years.
The sufficiency of the evidence is not challenged. It shows that at approximately 1:30 a. m., October 7, 1969, the appellant, accompanied by a woman companion, assaulted Jessie Lee Rusley with a shotgun at a service station where Rusley was employed. The appellant forced Rusley, who was in fear for his life, to give the keys to the cash register to his companion. When the woman had trouble getting the cash register open, the appellant said to Rusley, “Better open the drawer old man. Don’t make me kill you.” After the woman had taken approximately $200.00 from the cash register drawer and as they were leaving, appellant said, “I know you know who I am, I just don’t want to kill you. I hate to do it, but I need the money.” Rusley testified that he and the appellant had formerly worked together.
The appellant complains that “The Assistant District Attorney committed fundamental error when he injected into his jury argument unsworn statements of fact not introduced into evidence. . . .” The appellant bases his contention upon the portion of the record as follows :
“MR. SCOTT: . . . I don’t know about you, but maybe this Defendant’s attorney doesn’t know anything about photography and doesn’t realize that—
“MR. FISCHMAN: There's no expert testimony as to the quality or anything else in the record. I think counsel is about to get out of the record.
“MR. SCOTT: I submit it’s a reasonable deduction from the evidence that you get a flashback when you take a picture like that and you can’t get penetration through the window.
“MR. FISCHMAN: We believe that’s outside the record and move for a mistrial.
“THE COURT: Overruled.”
Photographs of the service station had been introduced into evidence. Appellant’s counsel, during closing argument, argued that the photograph showed it to be “pitch dark” in the service station and that “There’s no way the State can explain this poor lighting away — pass these (the photographs) around again — consider again this photograph — it gives you the same impression — the lighting in there is awful.” It would appear that the Assistant District Attorney’s argument was in answer to defense counsel’s argument. See Johnson v. State, 467 S.W.2d 247 (Tex.Crim.App.1971); Thomas v. State, 468 S.W.2d 90 (Tex.Crim.App.1971); Langham v. State, 473 S.W.2d 515 (Tex.Crim.App.1971); and Pierron v. State, 475 S.W.2d 775 (Tex.Crim.App.1972). Furthermore, even though a mistrial was requested, no objection was made and there was no request that the jury be instructed to disregard such argument.
The appellant also complains of argument after the punishment stage of the trial in which the prosecutor argued “first timers aren’t integrated with the hard core. I submit it’s a reasonable deduction they’re put on farms with other first offenders.” The appellant’s counsel, in argument, had argued that “the less time he (appellant) spends down there caged up with homosexual perverts, master criminals, the better off this boy’s going to be and the better chance you and I have got to walk the streets and not have to fear that he’s going to come along with a shotgun again — I was starting to refer to when I said the young clean-cut kid. Ladies on the jury, I hope I’m not going to offend you but the penitentiary is a terrible place. They’re going to send a young, clean-cut, skinny kid down there and the homosexuals and perverts are going to grab him in a minute. How can you find it in your hearts and in your consciences to strip a man of his last shred of humanity and turn him over to those people for any longer than he absolutely has to be turned over to them? It’s like — he will be like an animal down there.”
It would appear that the prosecutor’s argument was a legitimate answer to that made by appellant’s counsel. See Johnson v. State, supra; Thomas v. State, supra; Langham v. State, supra-, and Pierron v. State, supra.
The appellant’s remaining contention is that “The trial court committed fundamental error in permitting the arresting police officer to bolster the in-court identification of appellant.” The testimony referred to in appellant’s brief shows that the officer testified that prior to trial the complaining witness identified a photograph of the appellant.
As no objection to the admission of this testimony was made during trial and it is first raised on appeal, the error complained of was not preserved. Burns v. State, 470 S.W.2d 867 (Tex.Crim.App.1971) and Richardson v. State, 458 S.W.2d 665 (Tex.Crim.App.1970).
Furthermore, the evidence as to the identification of the appellant as the one committing the offense is clear and convincing. The appellant and the complaining witness had worked together and the evidence shows that the complaining witness had an adequate opportunity to see the appellant at the time the offense was committed. The appellant referred to the fact that the complaining witness knew him. A hearing was held outside of the presence of the jury to determine the admissibility of in-court identification and the careful trial court made written findings of fact that the in-court identification was not influenced by the witness having seen photographs of the defendant and was based solely upon the witness having viewed the defendant at the time and place alleged in the indictment.
The judgment is affirmed.
Opinion approved by the Court.
. Out of the presence of the jury, Busley testified he and the appellant had worked side by side in the kitchen at the county jail. He knew the appellant there only as “Bonerack.” After lie made this known to investigating officers, he identified a photograph of the appellant.
. Only Xerox copies of the photographs appear in the record. If photographic exhibits are important to a ground of error on apjieal, the record should contain as good a reproduction as was introduced into evidence.
|
sw2d_481/html/0830-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Ex parte James Barton CASTOR.
No. 45555.
Court of Criminal Appeals of Texas.
June 21, 1972.
No attorney on appeal for appellant.
Jim D. Vollers, State’s Atty. Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from an order of the court, after habeas corpus hearing, remanding appellant to custody for extradition to the State of Louisiana.
An extradition hearing was held and the Warrant of the Governor of the State of Texas was admitted into evidence. Such Executive Warrant appears to be regular on its face and the introduction thereof is sufficient to make a prima facie case authorizing extradition of the person named therein. Ex parte Leach, Tex.Cr.App., 478 S.W.2d 471; Ex parte Swain, Tex.Cr.App., 471 S.W.2d 412.
Appellant’s sole contention on appeal is that he should not be extradited to the State of Louisiana because “he is wanted in several counties in this State for offenses prior to the execution of this warrant.” No proof was offered to show that appellant was wanted in other counties in this State. Even so, such contention is not a defense to extradition. Article 51.13, Sec. 19, Vernon’s Ann.C.C.P., states:
“If a criminal prosecution has been instituted against such person under the laws of this State and is still pending, the Governor, in his discretion, either may surrender him on demand of the Executive Authority of another State or hold him until he has been tried and discharged or convicted and punished in this State.”
No motion for rehearing will be entertained or filed by the Clerk except by leave of this Court after good cause has been shown.
The judgment is affirmed. |
sw2d_481/html/0831-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Woodie Herman STAFFORD, Appellant, v. The STATE of Texas, Appellee.
No. 44891.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Bill Wilder, by Bill Pederson, Jr., Henderson, for appellant.
Henry Wade, Dist. Atty., and John R. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for murder. The jury assessed the punishment at life.
The sufficiency of the evidence to show malice is challenged. It is further contended that the appellant was improperly impeached by a prior statement, that improper argument was made, and that the court erroneously excluded the testimony of a witness after the rule had been violated.
The record reflects that Woodie Herman Stafford, the appellant, and Willie Jessie Blacklock, the deceased, were brothers-in-law. During the afternoon in question Stafford drove by Blacklock’s house several times. He stopped, got out of his car, came to the door and asked for Blacklock who then drove up in his car. Stafford walked up to Blacklock’s car, pulled out a pistol and shot Blacklock in the heart and killed him.
The appellant testified that he killed Blacklock, but that he did so because he was afraid of him.
The evidence reflects that Blacklock was still seated in the car when he was shot and that he was not armed.
The appellant first submits that the evidence was insufficient to show malice and the court erred in submitting an instruction to the jury on murder with malice.
Malice can be inferred from the use of a deadly weapon and the intended shooting of one with a pistol at close range. Grant v. State, Tex.Cr.App., 449 S.W.2d 480. See 4 Branch’s Ann.P.C.2d, Section 2189, page 534; 29 Tex.Jur.2d 300, 302, Section 189, Notes 13-14.
We hold the evidence sufficient to authorize the instruction on murder with malice.
Complaint is made because the State asked the appellant on cross-examination if he had not stated at a previous trial that the glove compartment in the car of the deceased was open after he had testified on direct examination that he did not know whether the glove compartment was open or closed.
Appellant’s counsel objected that this was impeachment on an immaterial matter and was, therefore, improper.
An officer who had arrived at the scene some ten minutes after the homicide testified that it was difficult to open the glove compartment after he unlocked it. There was some evidence that a screwdriver or other instrument had to be used to open it. The appellant relied upon self-defense. The question of whether the appellant saw the glove compartment open, as he testified before, was material on the issue of self-defense. Prior inconsistent statements may be used for impeachment purposes. See 62 Tex.Jur.2d, Witnesses, Section 36. No error is shown.
It is contended that reversible error was committed when the prosecuting attorney referred to the killing as an assassination, because such argument could only bring to mind the tragic death of the late President Kennedy.
This case was tried some six years after the death of President Kennedy. His name was not mentioned in the argument. In Davis v. State, Tex.Cr.App., 440 S.W.2d 291, the prosecutor argued that “[w]e have nothing here except an ambush like we had in Dallas in the assassination of President Kennedy.” The court instructed the jury not to consider such argument. We held no reversible error was shown.
In Black’s Law Dictionary, Third Edition, assassination is defined:
“Murder committed for hire, without provocation or cause of resentment given to the murderer by the person upon whom the crime is committed.
“A murder committed treacherously, or by stealth or surprise, or by lying in wait.”
According to the above definition, the reference to the murder as an assassination was a reasonable deduction from the evidence. We hold that no error is shown.
The complaint that the court erred in refusing to permit appellant’s brother to testify that he had exchanged cars with the appellant some time earlier in the afternoon of the homicide is without merit. The brother remained in the courtroom in violation of the rule while another witness was testifying. His proffered testimony would have bolstered the witness he heard testify. No abuse of discretion has been shown.
No error is shown. The judgment is affirmed. |
sw2d_481/html/0833-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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George G. JONES, Appellant, v. The STATE of Texas, Appellee.
No. 45127.
Court of Criminal Appeals of Texas.
June 21, 1972.
James P. Finstrom, Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is assault with intent to commit robbery; the punishment, eight (8) years.
The record reflects that three men, one of whom was identified as the appellant, stopped the complaining witness and demanded his money and then stabbed him in the back and in the chest. The complaining witness testified he had $80 with him at the time of the incident and that he later discovered that he had been able to escape before the money was taken.
Appellant’s first ground of error is that the evidence is insufficient to support the allegations in the indictment. The indictment alleges that the appellant did “unlawfully and willfully make an assault upon the person of Rufus Hines . . . and did . . . fraudulently attempt to take . . . $80 in current money of the United States of America.”
Appellant contends that since the indictment alleged he had attempted to take $80, the State was required to prove that he actually intended to take that specific sum. Appellant’s contention was adversely answered in Angley v. State, 35 Tex.Cr.R. 427, 34 S.W. 116, where the Court said:
“It is well settled that it is not necessary for the person to have money in order to be the subject of an assault with intent to rob."
Appellant’s reference to the descriptive nature of “$80 in current money of the United States of America” is misplaced, and has no application under the facts before us. Jones v. State, 89 Tex.Cr.R. 355, 231 S.W. 122.
Further, the record reflects the following testimony by the complaining witness which appellant sets forth in his brief:
“Q Okay, and what did you say after this man—
“A I said, T am fixing to go home.’ and he said, ‘No, you isn’t,’ he said, ‘Give us your money.’
“Q He said, ‘No, you what’ ?
“A He said, ‘No, you isn’t; give us your money.’ ”
⅜ ⅜ ⅜ ⅝ ⅝ *
“A . and he had the door open and a knife on me.
“Q Okay, and were you in fear of your life and bodily injury while these men had their knives on you ?
“A Yes, sir.”
The evidence is, therefore, sufficient to show an assault on the complainant with an intent to rob him. See Arts. 1163 and 1165, Vernon’s Ann.P.C.
Appellant’s grounds of error number two and three are that the court erred in failing to charge the jury that the appellant could not be convicted except upon proof that he had the specific intent to rob the complainant of $80.
The court’s charge, as given, required a finding that appellant “then and there” intended fraudulently to deprive the victim of his property. We find the charge sufficient as submitted. Cf. Sisson v. State, 160 Tex.Cr.R. 528, 272 S.W.2d 733.
Appellant’s grounds of error two and three are overruled.
Appellant’s ground of error number four is that the court “failed to define the word ‘attempt’ to the jury as required .” Appellant did not object to the charge on the ground he now urges. All objections to the court’s charge and requests for additional instruction must be presented to the court in writing and must specifically state the objection or the requested charge. Arts. 36.14, 36.15, Vernon’s Ann.C.C.P., Hill v. State, Tex.Cr.App., 466 S.W.2d 791.
Appellant’s ground of error number four is overruled.
Ground of error number five claims the court erred at the hearing on punishment in permitting the complainant to exhibit the scars which allegedly resulted from the wounds inflicted on him during the attack. The witness was asked to raise his shirt and show the jury the scars on his back. Nothing further is shown in the record. This Court has, on repeated occasions, considered this question. In Grims v. State, 158 Tex.Cr.R. 35, 253 S.W.2d 52, we said:
“The record before us does not show the character of the wounds exhibited, and therefore no error is presented by the bill.”
Later in Salazar v. State, Tex.Cr.App., 397 S.W.2d 220, 224, we said:
“We cannot bring ourselves to conclude that the mere exhibition of scars standing alone constitutes reversible error.
“The burden is upon the appellants to impress this Court with the Gruesomeness of the exhibition.”
Appellant’s ground of error number five is overruled.
Appellant’s grounds of error number six and seven complain of an alleged defect in the indictment and the charge respectively.
We find no motion to quash the indictment in the record nor any objection to the charge on the ground the appellant now challenges. Neither constitutes fundamental error.
Appellant’s grounds of error number six and seven are overruled.
Finding no reversible error, the judgment is affirmed.
ODOM and ROBERTS, JJ., concur in the results as to ground of error number five. |
sw2d_481/html/0835-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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William GAINES, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 44941.
Court of Criminal Appeals of Texas.
May 17, 1972.
Rehearing Denied July 12, 1972.
T. M. Reid, Abilene, for appellant.
Ed Paynter, Dist. Atty., Britt Thurman, Asst. Dist. Atty., Abilene, and Jim D. Voll-ers, State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a conviction for murder where the punishment was assessed by the jury at 30 years.
The sufficiency of the evidence is not challenged and a recitation of the facts is deemed unnecessary.
In his first ground of error, appellant complains of the introduction of certain unidentified State exhibits. We are merely referred to certain page numbers in the record. The ground is not briefed nor is any argument advanced in connection therewith. The ground of error is clearly not in compliance with Article 40.09 § 9, Vernon’s Ann.C.C.P., and presents nothing for review.
While the State exhibits are not identified, it appears appellant’s complaint is directed to certain pictures of the interi- or of “The Brown Derby” cafe where the killing occurred. We fail to perceive any reason why these pictures were not admissible. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1972). The photographs were not inflammatory or prejudicial. Their introduction rested within the sound discretion of the trial court.
Next appellant complains that in violation of the court’s order in limine, the State was permitted to ask certain “Have you heard” questions of his character witnesses who had testified that his reputation as a peaceful and law-abiding citizen was good. Here again, these witnesses are not identified and we are not even referred to any portion of the record where the claimed error or errors occurred. No authorities are cited. The ground of error is not in compliance with Article 40.09, supra, and presents nothing for review.
Prior to trial, the appellant filed a motion in limine seeking to prevent the State from making any reference “in the cross-examination of the defendant or his witnesses” concerning any misdemeanor conviction not involving moral turpitude “for the purpose of impeaching the defendant’s credibility as a witness.” The motion appears to have been directed only to the impeachment of the appellant as a witness in his behalf. The motion was granted.
We find nothing in the record to reflect that the State sought to so impeach the appellant. In reading the record, we have discovered several instances where the appellant’s character witnesses were asked “Have you heard” questions.
“It has been held that witnesses attesting the good reputation of an accused may, as affecting the weight, credibility and sincerity of their testimony, be asked upon cross-examination as to whether they have heard of acts of the accused inconsistent with that reputation.” Smith v. State, 411 S.W.2d 548 at 554 (Tex.Cr.App.1967).
See also Johnson v. State, 459 S.W.2d 637 (Tex.Cr.App.1970); Sanders v. State, 453 S.W.2d 162 (Tex.Cr.App.1970); Whitaker v. State, 421 S.W.2d 905 (Tex.Cr.App.1968).
As pointed out in Williams v. State, 460 S.W.2d 149 (Tex.Cr.App.1970), “ . . . [t]he purpose of the rule is to test the knowledge of the witness concerning the reputation of an accused. See Morton v. State, Tex.Cr.App., 460 S.W.2d 917.”
It is true that under the provisions of Article 38.29, Vernon’s Ann.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction, and such final conviction is one for a felony or one involving moral turpitude. Even then, it must not be too remote. Stephens v. State, 417 S.W.2d 286 (Tex.Cr.App.1967). Cf. Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971).
Article 38.29, supra, is not, however, a limitation on impeachment of character witnesses by reference to matters testing their credibility.
“It does not prevent asking a character witness whether he had heard about the defendant’s having done some specific thing inconsistent with the trait now in question, even though the thing inquired about did not result in a conviction.” McClung, Lawyers Handbook For Texas Criminal Practice, p. 139 (1967).
And, this is also true if the thing inquired about does not refer to an offense involving moral turpitude.
The rule does not extend so far as to permit character witnesses to testify if they had heard an accused had been charged with speeding, running a red light or minor offenses peculiar to military law. See Pace v. State, 398 S.W.2d 123 (Tex.Cr.App.1966).
The matters about which the character witnesses were asked in the instant case did not run afoul of the decision in Pace v. State, supra.
Although acknowledging that he made no objection at the time, appellant complains of the trial judge’s sua sponte admonishment not to lead his own witness. He contends the court’s actions left the impression the defense counsel was doing “something wrong” and the same was detrimental and harmful to him as the court’s instruction was made in the jury’s presence. The record does reflect counsel was “leading” his own witness and was doing “something wrong.” The trial judge’s action was proper. He need not await an objection to properly control the conduct of the trial.
Likewise, there is no merit to appellant’s further claim the harm was accentuated when the court subsequently instructed counsel, in the course of a side bar remark, to address any objection he had to the court.
Without citation of authority or argument, appellant advances four separate and distinct contentions in his last ground of error. This multifarious ground is not in compliance with Article 40.09 § 9, supra, and presents nothing for review.
The judgment is affirmed. |
sw2d_481/html/0838-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Elmer Glendon GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
No. 44925.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Lloyd M. Lunsford, So. Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Henry Oncken, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is murder without malice; the punishment, five (5) years.
Appellant’s first seven grounds of error relate to jury selection. Forty prospective jurors appeared when the case was called. Two were excused (about which there is no question). None of the others was successfully challenged for cause. When the appellant completed his examination of venireman No. 22, the prosecutor announced that he would exercise no peremptory challenges to the first 22, but would exercise peremptory challenges to the next ten on the list. The court at this juncture terminated the examination of the remainder of the panel.
It is the appellant’s contention that the court erred in declining his motion to shuffle the venire list at this point in the course of the jury selection.
When the 22 veniremen had been questioned from a list prepared by the clerk, it was then too late for the court to entertain a motion to shuffle absent a showing of some unusual circumstance. Cf. Fontenot v. State, Tex.Cr.App., 379 S.W.2d 334; Bellah v. State, Tex.Cr.App., 415 S.W.2d 418.
We find no merit in appellant’s contention that he was misled by the “juror information forms” into believing that none of the panel being examined had served in prior criminal cases. We note that at the inception of the interrogation of the panel, the State’s Attorney said without objection:
“Some of you have been on the panel earlier this week where I represented the State.”
Further, prior to the individual voir dire while discussing the case with the panel as a whole, appellant’s counsel was informed that 11 of the members of the panel had served in a criminal trial earlier in that week wherein Mr. Keith, the prosecutor in the case at bar, had represented the State. This was ample notice to appellant that the veniremen in question had had prior experience in similar cases and negates his contention that the jury was preselected without his knowledge.
Appellant’s next contention is that he was injured by permitting the State’s Attorney to make the announcement concerning all his peremptory challenges in the presence of the jury and prior to the completion of the jury voir dire. At trial, appellant’s sole objection was limited to the fact that he was denied the right to interrogate the remainder of the panel, after the prosecutor made known to the trial court that he was exercising his peremptory challenge on the remainder of the panel. Therefore, his objection at trial is not the same made on the appeal. See Swartz v. State, Tex.Cr.App., 473 S.W.2d 206.
However, we have construed his argument to claim there was a violation of Articles 35.25 and 35.26, Vernon’s Ann.C. C.P., we construe these Articles as they are written, but do not interpret them to mean that a violation per se constitutes reversible error. This opinion, however, is not to be construed as sanctioning a violation of these Articles and trial judges are cautioned to adhere to the statutory wording. We simply hold that we do not find a violation of the spirit and intent of the Articles under the unique factual situation of this case. We also find no merit in appellant’s contention that the trial court should have granted him additional challenges under the circumstances presented.
Appellant’s contention that the jury had been preselected because it contained members who had earlier served in the same court with the same prosecutor is without merit As shown above, he was given full notice of this fact by the prosecutor. It should be noted also that it is ascertainable from this record that such prior trial in that week had resulted in an acquittal. Appellant made no showing that after this earlier acquittal, a representative of the State had “woodshedded” the panel such as we condemned in Holtzinger v. State, 162 Tex.Cr.R. 231, 284 S.W.2d 158. There is no showing that the appellant was forced to proceed with an unacceptable juror. De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668. No error is shown.
Appellant contends that the trial court erred in refusing to issue subpoenas for “the 40 persons pre-selected by the Jury Shepherd as prospective jurors in this case . . . ” for a hearing on his motion for a new trial in which he alleged that the venire was listed in a predetermined manner on the venire list. This is not one of the ten grounds for the granting of a motion for new trial authorized by Article 40.03, V.A.C.C.P. Appellant had ample opportunity to establish such fact, if such fact existed, during the examination of the panel. We further note that appellant failed to secure a ruling from the trial court on his motion for issuance of such a subpoena and, therefore, nothing is presented for review.
Appellant’s last ground of error relates to argument. It appears that appellant’s counsel, while discussing the deceased’s wife’s testimony and her credibility, made this statement:
“She says she is in love with Glen Griffin (the appellant) but she must not be in love with him because she does not live with him.”
At this juncture the prosecutor objected on the grounds that the court had ruled that he could not go into it and prove that they did live together afterwards (her separation from the deceased). At this juncture, counsel for appellant stated:
“Now, Your Honor, this is not so. She does not live with this defendant and this is an improper statement.”
It is apparent from the above that both counsel were outside the record and the remarks of one invited the remarks of the other.
No reversible error is reflected.
The judgment is affirmed.
. By way of explanation: At this point challenges for cause were no longer available to either party. Had the appellant exercised his statutory ten peremptory challenges at this time a jury of 12 would have nevertheless remained.
. The record does not show that a pretrial motion to shuffle the panel was either filed or presented to the trial court prior to the voir dire. As to the 22 veniremen, there was no. limitation as to the extent of the interrogation. Cf. De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668.
.These forms were made out on Monday, May 10, and this trial commenced on May 14, and appellant in his brief admits that such forms would not be accurate as of the day of trial.
|
sw2d_481/html/0841-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Alfonso Nathaniel REESE, Appellant, v. The STATE of Texas, Appellee.
No. 44988.
Court of Criminal Appeals of Texas.
June 21, 1972.
Ross Teter, Dallas, for appellant.
Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a conviction for burglary with intent to commit theft. The punishment, enhanced under Article 62, Vernon’s Ann.P.C., was assessed at 12 years.
The sufficiency of the evidence is not challenged. The record reflects that city police officers, who answered a silent burglar alarm in the early morning hours of December 13, 1969 at Crabtree’s Electronics store in Dallas, found a cover off of the ventilating fan on the roof and discovered the appellant hiding inside the store.
First, appellant contends that “the enhancement portion of the indictment was read to the jury improperly.”
Appellant relies upon the cover page to the transcription of the court reporter’s notes which reflects that “the indictment was read aloud to the jury.”
The portion of the record referred to does not purport to be verbatim and does not reflect a violation of Article 36.01 § 1, Vernon’s Ann.C.C.P. Further, no objection appears in the record. Cf. Cox v. State, 422 S.W.2d 929 (Tex.Cr.App.1968).
Still further, the record reflects that the second paragraph of the indictment or enhancement portion was read to the jury at the commencement of the penalty stage of the trial and the appellant entered a plea of “True”. Thereafter, without objection, the prosecutor argued to the jury,
“. . . This is an enhanced case. You can know about this now. You couldn’t yesterday. You couldn’t until the man was found guilty of the primary offense that he was charged with
The first ground of error is overruled.
Next, appellant asserts “[t]he prosecutor improperly denied Defendant his right not to have the State preclude Negroes from serving on his jury.”
The voir dire examination of the jury panel is not included in the record nor does the record reflect a request that such voir dire examination be taken by the court reporter. There are no timely presented bills of exception. Nothing is, thus, presented for review.
In his brief, appellant asserts there were 9 Negroes in the jury panel of 32 and they were eliminated by the State’s use of its peremptory challenges. Even if these facts were supported by the record, there is no showing the State’s action constituted a purposeful pattern of discrimination. Absent such a showing, there is no denial of equal protection of the laws. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Hardin v. State, 475 S.W.2d 254 (Tex.Cr.App.1972) ; Walker v. State, 454 S.W.2d 415 (Tex.Cr.App.1970); Johnson v. State, 411 S.W.2d 363 (Tex.Cr.App.1967).
Finally, appellant contends there was an “inexcusable delay in processing the appeal of this case.”
The case was tried on March 18 and 19, 1970. The appellant was sentenced on September 4, 1970 and gave notice of appeal on the same date. Appellant, who had been represented by court-appointed counsel at his trial, also filed a pauper’s oath on September 4, 1970 in order to obtain an appellate record. The transcription of the court reporter’s notes was not filed until June 14, 1971, over nine months later, after several extensions of time. One extension of time (from August 23 to September 14) to file an appellate brief in the trial court was requested by appellant’s court-appointed counsel on appeal. It was granted. The State’s brief was filed 30 days after the appellant’s brief. The record was received in this court on November 24, 1971, but was not reached for submission until May 17, 1972.
It is obvious that appellant’s ground of error contained in the appellate brief filed in the trial court on September 14, 1971 was aimed primarily at the nine-month delay in securing a transcription of the court reporter’s notes. The extensions in each instance were requested by the appellant’s counsel, apparently at the behest of the court reporter. The motions for extension reflect simply that the court reporter needed more time in which to prepare such a transcription.
We cannot say in the light of the record that the delay was “inexcusable.” Further, this delay could not serve as a basis for reversal. We have previously had occasion to note delay in other appeals.
An alarm should be sounded to all trial judges so that all possible steps to speed up the appellate process can be taken. In reviewing records, this court has observed that trial judges are too lenient in granting extensions of time to court reporters to file transcriptions and to attorneys, both for the State and the appellants, in which to file appellate briefs in the trial court.
In most cases, no good cause is ever given. The appellants, awaiting the outcome of their appeals, are often confined in the county jail “vegetating” or, if on bail, are walking the streets of our communities years after the conviction free to commit other crimes. The image of our judicial system suffers. We should all work to eliminate avoidable delays.
In his article, “Delay in Criminal Appeals ; a Functional Analysis of One Court’s Work”, which is found in 23 Stanford Law Review 676, vol. 4, (April 1971), Judge Winslow Christian wrote:
“Avoidable delay in deciding criminal appeals is costly to society and detrimental to the aims of the judicial system. Delay in affirming a judgment of conviction may decrease the conviction’s deterrent value, as well as frustrate rehabilitation. Delay in reversing a judgment of conviction allows evidence to grow stale, thereby threatening the validity of a new trial as a factfinding process. If reversal is followed by the acquittal of the appellant, each day of appellate delay will have been a day of unjust punishment. Yet delay has become a prominent characteristic of the American appellate process and a growing threat to the effective administration of justice.”
The judgment is affirmed.
. In Guyton v. State, 472 S.W.2d 130 (Tex.Cr.App.1971), the appellate record did not reach the appellate court until over 5 years after the trial. Guyton was ineligible for bail, having received a life sentence. In Dues v. State, 456 S.W.2d 116 (Tex.Cr.App.1970), the accused remained in jail 3½ years from trial until the appellate record reached this court. The case was reversed. In Alexander v. State, 450 S.W.2d 70 (Tex.Cr.App.1970), the delay between trial and receipt of the appeal was 43 months, it taking 3 years and 9 days to complete the transcription of the court reporter’s notes. The delay in Curtis v. State, 450 S.W.2d 634, 635 (Tex.Cr.App.1970), was also 43 months; in Lacy v. State, 450 S.W.2d 640 (Tex.Cr.App.1970), 37 months; in Marshall v. State, 444 S.W.2d 928 (Tex.Cr.App.1969), 38 months. See, also, David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970) ; Burge v. State, 443 S.W.2d 720 (Tex.Cr.App.1969) ; Johnson v. State, 454 S.W.2d 205 (Tex.Cr.App.1970).
. See Article 40.09, Y.A.C.C.P. Since this statute authorizes the trial court to grant a new trial until the record is received by this court, no supervisory power to regulate the appellate process is vested in the Court of Criminal Appeals. The attention of the Legislature should be called to this cause of appellate delay in criminal cases. Revision of the statute is clearly in order.
|
sw2d_481/html/0843-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
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Mark Anthony ERDELYAN, Appellant, v. The STATE of Texas, Appellee.
No. 45175.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Gary D. Howard, James B. Langham, San Antonio, for appellant.
Ted Butler, Dist. Atty., Gordon V. Armstrong, Bill Harris and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the possession of heroin. The court assessed punishment at ten years.
The sufficiency of the evidence is not challenged.
On March 26, 1971, San Antonio police arrested appellant and another and found two ounces of heroin on appellant’s person. On May 7, 1971, appellant pled not guilty and one week later appeared with retained counsel and pled guilty to the offense of possession of heroin. The trial court admonished appellant regarding the consequences of his plea. It was further established that appellant’s attorney had represented him for four to six months and that appellant was sane. Appellant waived in writing his right to a jury trial and consented in writing to the introduction of stipulated testimony and other evidence pursuant to Article 1.15, Vernon’s Ann.C.C.P. After introduction of the evidence the court inquired of appellant whether he was a narcotics addict. He replied he had been for about seven months. The court then found the appellant guilty and assessed the punishment. After appellant had made a motion for probation, the court ordered, a pre-sentence investigation. The court then questioned appellant about the methadone maintenance program. Appellant stated that he had been on this program since his release from jail.
Prior to sentencing, the appellant discharged his attorney and employed others who represented him at his hearing on a motion for new trial, and on this appeal. This change in attorneys was entered into the record on June 4, 1971, at which time appellant’s motion for probation was denied and he made a motion for new trial.
On July 7, 1971, a hearing on appellant’s motion for new trial was held. After the hearing, the trial court denied the motion and pronounced sentence.
Appellant contends that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States.
Any incompetency of retained counsel cannot be imputed to the State, Davis v. State, Tex.Cr.App., 429 S.W.2d 895, cert, denied 393 U.S. 1096, 89 S.Ct. 885, 21 L.Ed. 2d 786.
Appellant asserts as bases for his contention of incompetent counsel that unknown to him his attorney had been convicted of a felony in a federal court prior to his own plea of guilty; that his attorney failed to advise him of or to file for him an application under Title III of the Federal Narcotic Program; that his attorney failed to request a preliminary hearing; that his attorney failed to investigate or prepare the case as to the guilt or innocence of the appellant; and that his attorney categorically and unequivocally told appellant he would receive probation if he pled guilty.
At the time appellant pled guilty his attorney was not disbarred nor was he subject then or now to compulsory disbarment since his conviction in federal court is on appeal and is not a final conviction. His attorney was duly licensed and qualified at the time of appellant’s plea and the potential ground of disbarment does not render his assistance ineffective as a matter of law.
Nothing appears in the record to show whether appellant’s counsel was unaware of a Federal Narcotic Program or was aware of the program but strategically chose not to bring it up in the hope of obtaining probation and continuing appellant on his methadone maintenance program. Certainly nothing appears in the record to show any bad faith, insincerity or disloyalty toward appellant by his attorney. A good faith error or mistake, if any, made by retained counsel with earnest and honest purpose to serve his client cannot be the basis of a claim of reversible error. Pope-ko v. United States, 294 F.2d 168 (Sth Cir. 1961).
While an accused has a right to an examining trial prior to indictment the failure to have such is not reversible error, Moss v. State, Tex.Cr.App., 468 S.W.2d 807; Klechka v. State, Tex.Cr.App., 429 S.W.2d 900, cert, denied 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592, and, hence, failure of his attorney to request such is not a basis for a charge of incompetency.
The contention that counsel did not investigate or prepare the case as to guilt or innocence of the appellant is a mere conclusion unsupported in the record. The record reflects that his attorney represented him from four to six months, made his bail the day after his arrest, had represented the appellant previously in other matters, and merely stated that he had no evidence to offer as to the guilt or innocence of the appellant.
At the hearing on his motion for a new trial, appellant testified that his attorney told him unequivocally that he would get probation. When his new attorney asked him whether he would have pled guilty if he had known he was pleading to “ten years” appellant stated: “I don’t think so, no, sir.”
When the trial court admonished appellant regarding his plea of guilty the following took place:
“THE COURT: Do you desire to plead guilty ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Before you can plead guilty in any court in this State it is necessary that you be given certain warnings and asked certain questions.
The first of these questions is are you pleading guilty because you are guilty ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has anybody placed you in fear, threatened you, mistreated you, abused you, done anything to force you to plead guilty ?
“THE DEFENDANT: No, sir.
“THE COURT: Has anybody promised you anything to get you to plead guilty ?
“THE DEFENDANT: No, sir.
“THE COURT: Has anybody told you they would give you a pardon or give you any other promises if you would plead guilty?
“THE DEFENDANT: No, sir.
“THE COURT: The offense with which yoit are charged, which is possession of narcotic drugs, to-wit, heroin, carries punishment in the Texas Department of Corrections of not less than two years, it carries any terms (sic) of years up to and including life imprisonment. All of those are possible punishments. Understanding what the punishment could be, do you still insist on pleading guilty?
“THE DEFENDANT: Yes, sir.”
Apparently the court believed appellant’s earlier statements when he was admonished that he was not promised anything to get him to plead guilty but pled guilty because he was guilty.
Appellant does not contend that he was not guilty but that his attorney “betrayed and deceived” him into pleading guilty. Nothing in the record supports this allegation. The record does not show or reflect any wilful misconduct by retained counsel without appellant’s knowledge which amounts to a breach of legal duty of an attorney. See Trotter v. State, Tex.Cr.App., 471 S.W.2d 822, and Lawson v. State, Tex.Cr.App., 467 S.W.2d 486. The record does show that the trial court was scrupulous in following the requirements of Article 26.13, V.A.C.C.P., to determine that appellant was “uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.” We find no merit in appellant’s first ground of error.
In his second ground of error, appellant complains that the trial court did not inquire whether appellant’s plea of guilty was the result of a bargain or agreement between appellant’s attorney and the prosecutor and, if so, did not require this to be dictated into the record and then warn appellant that the trial court was not bound by any such bargain or agreement.
Apparently appellant would have this Court impose Section 1.15 of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, approved draft 1968, as a requirement upon the courts of this State. This Court has limited rule making power. The Legislature has not adopted the recommendations of the American Bar Association.
Trial judges must follow the provisions of Article 26.13, supra, in accepting pleas of guilty, and this is sufficient.
Even though it is not required, trial judges could well use the provisions of Section 1.15, supra, and inform a defendant that the court is not bound to accept the recommendation of the prosecutor if there has been a plea bargain.
No reversible error is shown. The judgment is affirmed.
. Appellant’s attorney at the time of his plea was not called to testify at the hearing on motion for new trial.
|
sw2d_481/html/0847-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Leobardo OCHOA, Appellant, v. The STATE of Texas, Appellee.
No. 45305.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Rankin, Kern & Martinez by Walter L. Reed, Jr., McAllen, for appellant.
Oscar B. Mclnnis, Dist. Atty., Thomas P. Beery, Asst. Dist. Atty., Edinburg, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
Appellant pled guilty to the offense of murder under the provisions of Article 802c, Vernon’s Ann.P.C. The punishment was assessed by the jury at 5 years.
Appellant’s sole ground of error is that the court erred in allowing “the prosecutor to present to the jury evidence for enhancement and impeachment purposes, prejudicial testimony on two constitutionally void misdemeanor convictions thereby denying appellant due process.” We do not agree.
This was a plea of guilty before a jury to a felony charge and it is well established that such a plea admits the existence of all facts necessary to establish guilt, and in such cases, the introduction of testimony is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968), and cases there cited. Thus, the claim of error, if any, relates to the issue of punishment. Cf. Basaldua v. State, 481 S.W.2d 851 (Tex.Cr.App.1972).
Testifying in his own behalf, the appellant admitted, on direct examination, he had been convicted of the misdemeanor offense, driving while intoxicated, in 1961 and had paid a fine for writing a “hot check” but had never been convicted of a felony.
On cross examination, the following transpired:
Q “[Prosecutor] All right, sir. Now, when Mr. Rankin was talking to you here a few minutes ago, I believe that he asked you if you had ever been arrested and you stated you had been for the drunk driving charge and also for the bad check charge; isn’t that right, sir?
A “Yes, sir.
Q “And, do you recall that you were ever arrested on any other occasions other than those two times ?
A “No, sir, I don’t recall.
Q “Well, sir, do you recall that you were arrested by the Mission Police Department on the 19th day of July, 1963, for reckless driving?
A “I don’t recall that.
Q “No license plates and no driver’s license and you were fined a Hundred Dollars, and also Twenty-Five Dollars on the other charge in Corporation Court of the City of Mission?
A “I don’t recall that, sir.
Q “And, do you recall that you were arrested by the Mission Police Department on the 7th day of June, 1963, for simple drunkness and fined Ten Dollars in Corporation Court ?
A “No, sir, I don’t recall it.
Q “You don’t recall those situations?
A “No, sir.”
It is appellant’s contention that the misdemeanor convictions were constitutionally void in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and their use for either enhancement of punishment or impeachment purposes was precluded. See also Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). We need not determine whether these cases are applicable to misdemeanor cases for there are several reasons that appellant’s ground of error is without merit.
First, we observe that there was no objection to the line of interrogation now complained of and, thus, the error, if any, is not properly preserved for review. Maldonado v. State, 467 S.W.2d 468 (Tex.Cr.App.1971). Cf. Blake v. State, 468 S.W.2d 400 (Tex.Cr.App.1971).
Secondly, there is no proof that the appellant was not, in fact, represented by counsel at the time of the prior convictions. The matter is only asserted in the appellant’s brief. The same is true as to any claim that counsel was not waived. Further, there is no allegation or proof as to indigency at the time of the prior convictions, nor any claim that appellant had counsel and was deprived of his services. Even if the Gideon-Burgett line of cases is applicable to misdemeanor cases, as claimed by the appellant, they would not be applicable to the case at bar. Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970).
Thirdly, after the appellant testified he could not recall any such convictions, the matter was not further pursued by the State. No proof of the same was offered so that the same could be used for enhancement or impeachment. Cf., e. g., Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106, 108 (1961).
And, no claim is advanced and there is no showing that the prosecutor acted in bad faith. Keel v. State, 434 S.W.2d 687 (Tex.Cr.App.1968); Lee v. State, 470 S.W.2d 664 at 665, f.n. 1 (Tex.Cr.App.1971).
Since appellant contends that the convictions were used for both enhancement and impeachment, we make the following observations. The misdemeanor convictions inquired about were not and could not have been legally alleged for enhancement of punishment under the provisions of either Article 62 or 63, Vernon’s Ann.P.C., since the primary offense alleged was a non-capital felony offense. Further, the convictions could not have been used as a part of the appellant’s “prior criminal record” unless they were convictions obtained in a court of record, or were final convictions material to the offense charged. Article 37.07, subd. 3(a) Vernon’s Ann.C.C.P.
As to impeachment under Article 38.29, Vernon’s Ann.C.C.P., it must be remembered that the conviction must be a final one and must be for a felony offense or one involving moral turpitude, and even then it must not be too remote. See Stephens v. State, 417 S.W.2d 286 (Tex.Cr.App.1967). The misdemeanor convictions here inquired about would not appear to involve moral turpitude. Gibbs v. State, 385 S.W.2d 258 (Tex.Cr.App.1965) (drunkenness) ; Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App.1970) (drunkenness). Cf. Stephens v. State, supra, f.n. 1, (driving while intoxicated and driving while license suspended); 1 Branch’s Ann.P.C.2d ed. § 191, p. 211.
An exception to the foregoing prevails, however, where the witness makes blanket statements concerning his exemplary conduct such as having never been arrested, charged or convicted of any offense, or having never been “in trouble,” or purports to detail his convictions leaving the impression there are no others. Stephens v. State, supra; Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957) and cases there cited. In such cases, the State may refute such testimony despite the nature of the conviction used or its remoteness. Stephens v. State, supra.
In the instant case, we need not determine whether the appellant fully opened the door by his inquiries under direct examination, since earlier noted there was no objection and no showing of bad faith. See Wingate v. State, 383 S.W.2d 601 (Tex.Cr.App.1964).
The judgment is affirmed.
. If it had been proven, a simple drunk conviction would have been material to the offense charged under Art. 802c, supra.
. One further comment on the prosecutor’s inquiry concerning a prior conviction for “reckless driving.” The reckless driving statute, Acts 1947, 50th Leg., ch. 421, § 51, codified in Article 6701d § 51 Vernon’s Ann.Civ.Sta., was held unconstitutional by this court in Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673 (1949), and Ex parte De La Pena, 157 Tex.Cr.R. 560, 251 S.W.2d 890 (1952). This statute was not amended until last year, Acts 1971, 62nd Leg., ch. 83, p. 731, effective August 31, 1971. Thus, any conviction for “reckless driving” under the old statute would, indeed, be “void”, but not for the reasons urged by appellant. However, as we read the record, the most that is shown is an inadvertent misstatement of the prosecutor as to the nature of the supposed prior conviction. Such inadvertence is understandable in that the term “reckless driving” is often carelessly and imprecisely used to denote nearly any traffic offense. In light of the highly ambiguous record before us, unclarified by a timely objection at trial, the fact that the issue was not raised on appeal, and no showing of any bad faith on the part of the prosecutor, no error is shown.
.Of. Rodriquez v. State, 160 Tex.Cr.R. 453, 272 S.W.2d 366 (1954).
|
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Valentin BASALDUA, Appellant, v. The STATE of Texas, Appellee.
No. 44580.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied. July 12, 1972.
Cox & Hurt by Joe L. Cox, Plainview, for appellant.
Tom Hamilton, Dist. Atty., Plainview, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION ON APPELLANT’S MOTION FOR REHEARING
ONION, Presiding Judge.
Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.
The appeal arises out of a conviction for sale of marihuana where the punishment was assessed by the jury at 50 years.
Initially, appellant contends the court erred in permitting testimony as to matters “other than the prior criminal record of the appellant and his general reputation and his character as provided by Article 37.07, Sec. Three (a).”
Appellant first entered a plea of not guilty before the jury. The State then offered evidence that an undercover agent purchased approximately 758 grams of marihuana from the appellant for $200.00. After such proof and after the court indicated it felt that certain extraneous offenses would be admissible, the appellant withdrew his earlier plea and entered a plea of guilty before the same jury after he had been duly admonished by the court as to the consequences of his plea.
Thus, what had commenced as a bifurcated trial concluded as a unitary trial with the court instructing the jury to find the appellant guilty upon his plea of guilty and to assess his punishment.
After appellant had entered his plea of guilty the undercover agent to whom the alleged sale of marihuana was made was recalled as a witness by the State. He was then asked, over objection, to describe how a marihuana cigarette is made or rolled, and how many cigarettes could be normally made from one gram of marihuana. He answered both questions. On cross examination the appellant then for the first time had him explain to the jury the process by which marihuana is refined.
Thereafter appellant’s “prior criminal record” which included a previous conviction for possession of marihuana was offered without objection. Appellant complains on appeal only of the questions asked the undercover agent after he was recalled.
Collier v. State, 167 Tex.Cr.R. 534, 321 S.W.2d 584 (1959) has been decided adversely to appellant’s contention. The appellant recognizes Collier but contends it is inapplicable since it was decided in 1959 prior to the adoption of the bifurcated trial system by the 1965 Code of Criminal Procedure. We- do not agree. Some explication is perhaps in order.
Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968) stated a well settled rule concerning guilty pleas before a jury applicable under both the former code and said 1965 code. There the court wrote
“It is well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed, (cases cited omitted)”
See also Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Fierro v. State, 437 S.W.2d 833 (Tex.Cr.App.1969); Griggs v. State, 451 S.W.2d 481 (Tex.Cr.App.1970); Graham v. State, 466 S.W.2d 587 (Tex.Cr.App.1971) ; Durham v. State, 466 S.W.2d 758 (Tex.Cr.App.1971) ; Andrade v. State, 470 S.W.2d 194 (Tex.Cr.App.1971); Allen v. State, 474 S.W.2d 480 (Tex.Cr.App.1972).
Thus the trial before a jury on a guilty plea in a felony case is primarily a hearing on punishment as it had been even prior to the effective date of the 1965 Code of Criminal Procedure (January 1, 1966).
Article 26.14, Vernon’s Ann.C.C.P., (former Article 502) reads as follows:
“Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”
Such proceedings have long been conducted as a unitary trial.
“One of the innovations wrought by the 1965 Code of Criminal Procedure was the bifurcated trial. See Article 37.-07, V.A.C.C.P. As originally enacted, the procedure was designed to be applicable to pleas of not guilty in jury trials in non-capital felonies and ‘capital cases where the State has made it known that it will not seek the death penalty.’ Such procedure was entitled ‘alternate procedure’ as though it was to be experimental only, but in light of the provisions of Article 36.01, Secs. 1 and 8, V.A.C.C.P., it became the procedure in all applicable cases.” (emphasis supplied) Brumfield v. State, 445 S.W.2d 732, 737 (Tex.Cr.App.1969).
The statute also provided that at the penalty stage of the bifurcated trial that “evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”
The statute was, by its very terms, not applicable to pleas of guilty, either before the court or jury in a felony case. Morales v. State, 416 S.W.2d 403 (Tex.Cr.App.1967); Rojas v. State, 404 S.W.2d 30 (Tex.Cr.App.1966). Nor was it applicable to a plea of not guilty before the court. Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968). It was also held not applicable to trial of capital cases where the death penalty was being sought. Rojas v. State, supra; Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967); Wilhelm v. State, 426 S.W.2d 850 (Tex.Cr.App.1968); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968), and Brumfield v. State, supra. There was also a question as to whether the statute was applicable to misdemeanor trials where the possible punishment could be confinement in jail. Cf. Seefurth v. State, 422 S.W.2d 931, 937 (Tex.Cr.App.1968) ; Bridges v. State, 422 S.W.2d 449 (Tex.Cr.App.1968) ; Attorney General’s Opinion No. C-587 (January 25, 1966).
In 1967, Article 37.07, supra, was amended (Acts 1967, 60th Leg., p. 1739, ch. 659, eff. Aug. 28, 1967). The amendment provided for bifurcated trials in all criminal cases, other than misdemeanor trials of which Justice or Corporation Courts have jurisdiction, which are tried before a jury on a plea of not guilty. See Sec. 2(a).
After the amendment, this court in Ring v. State, 450 S.W.2d 85 (Tex.Cr.App.1970), held the bifurcated trial procedure enunciated therein was not applicable to pleas of guilty before a jury in a felony case as that procedure was governed by Article 26.14, Vernon’s Ann.C.C.P.
Allen v. State, 474 S.W.2d 480 (Tex.Cr.App.1972), pointed out:
“. . . It is not necessary to have a two-stage proceeding when a defendant enters a plea of guilty or nolo conten-dere before a jury. If such pleas are entered before a jury, their function is to determine punishment only.”
See also Thomas v. State, 477 S.W.2d 881 (Tex.Cr.App.1972).
While it is clear that such trials are to be unitary, the question arises as to whether evidence of “prior criminal record,” character and reputation, etc., may be offered as is permissible at the penalty stage of the trial in cases tried under the bifurcated trial procedure of Article 37.07, supra. We are of the opinion that such evidence is admissible.
Section 3 of Article 37.07, supra, provides :
“(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.
“(b) After the introduction of such evidence has been concluded, and if the jury has the responsibility of assessing the punishment, the court shall give such additional written instructions as may be necessary and the order of procedure and the rules governing the conduct of the trial shall be the same as are applicable on the issue of guilt or innocence.
“(c) In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.
It seems clear that the Legislature intended that evidence of the defendant’s prior criminal record, his character and reputation may be introduced in any case “[rjegardless of the plea and whether the punishment be assessed by the judge or the jury, . . . .’’It may be argued that some of the provisions of the said Section 3 would require that there be bifurcated trials in all criminal cases despite the limitation contained in Section 2(a) of the statute. We do not agree and adhere to our rulings in Ring v. State, supra, and Allen v. State, supra, decided subsequent to the 1967 amendment of Article 37.07, supra. The Legislature did not intend an absurdity. Further, in construing Articles 26.14, and 37.07 together, we conclude that the Legislature did not intend to have certain types of cases where “prior criminal record,” would be admissible at a hearing on punishment and not admissible on others.
We do not understand appellant to challenge this conclusion but to assert that evidence other than prior criminal record, character and reputation is not admissible. Relevant evidence admissible at a hearing where punishment is to be assessed is by no means so limited. See Allaben v. State, 418 S.W.2d 517, 519 (Tex.Cr.App.1967).
We do not agree that Collier v. State, supra, has lost its viability as a result of the adoption of the present Code of Criminal Procedure. Further, the evidence here complained of did not relate to an extraneous offense by the appellant but only called for the witness to describe what he had learned about rolling marihuana cigarettes while he acted as an undercover agent and how much marihuana was normally used in such cigarettes. We perceive no error.
Appellant next urges that reversible error occurred when the prosecutor argued:
“And there’s one more thing I want to say, and I mean this sincerely, if this is not stopped, we are going to have an open town of marijuana continually. And I’ll tell you something else, the only way it can be stopped is by you, as representatives of the county. And if it’s not stopped, I’m not bringing up my child in this town.”
Appellant’s only objection was that it was immaterial whether the district attorney chose to live there or elsewhere. The objection was overruled and no further relief was requested.
Appellant now complains that the prosecutor injected new and unsworn testimony when he argued: “[We] are going to have an open town of marijuana continually. . . and in a play upon prejudice added that portion of the argument concerning his child.
First, it should be observed that the argument was in response to and invited by the argument of defense counsel that Plainview had been an open town for marihuana from April to August since the undercover agents had bought all they could instead of preventing the sale of marihuana.
While the prosecutor should not have injected the fact that he had a child and that he intended to live elsewhere “if it’s not stopped,” we fail to perceive such error as calls for reversal under the circumstances presented.
In Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548, 550 (1924), this court stated:
“We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. . . . ”
It is somewhat difficult to understand appellant’s third contention. At one place in his “discussion,” he contends “the court in its charge did not make any requirement of the jury to find the Defendant guilty.” The court’s charge was a standard form generally used where the plea is guilty and similar to the one set forth in McClung, Jury Charges for Texas Criminal Practice, Revised Edition. See also Willson’s Criminal Forms, 7th Ed., vol. 8, § 3454, p. 371. In the charge, the court instructed the jury as follows: “You are instructed to find the Defendant guilty as charged in the indictment and assess his punishment at . . . .”
Likewise, his claim that Article 1.-15, Vernon’s Ann.C.C.P., has application to a plea of guilty before a jury is without merit. It expressly applies only in non-capital felony cases where a jury has been waived.
The judgment is affirmed. |
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Henry Lee TOWNSEND, Appellant, v. The STATE of Texas, Appellee.
No. 44893.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
Dan J. Anderson, Richardson, for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: heroin. Punishment was assessed by the jury at life.
First, appellant complains of the search, contending that the affidavit upon which the same was made was insufficient to show probable cause.
Neither the search warrant nor the affidavit upon which it was based appears in the record. The record does indicate that they were shown to the trial judge. However, no request was made that they be made a part of the record in accordance with Article 40.09, Sections 1 and 2, Vernon’s Ann.C.C.P. Nor was there an objection made to the record on this ground as is required under Article 40.09, Sec. 7, V.A.C.C.P.
Even though the appellant read to the trial court certain portions of the affidavit upon which the search warrant was based, the entire affidavit was not read. Without the entire affidavit being before this court, we are in no position to review the validity of the warrant.
The state having secured a ruling from the trial court that the affidavit for search warrant was valid, a prima facie case was made out authorizing such search, and in order to defeat the same the appellant had the burden to bring the warrant and affidavit before this court to get a ruling thereon, e. g. Walsh v. State, 468 S.W.2d 453; Mattei v. State, 455 S.W.2d 761; McAlpine v. State, 455 S.W.2d 247; Doby v. State, 383 S.W.2d 418, cert, denied, 380 U.S. 920, 85 S.Ct. 914, 13 L.Ed.2d 804 (1965).
Also, appellant asserts that the chain of custody of the heroin was not shown during the trial.
Officer Hendry testified that he observed the appellant throw the balloon out the window and he picked it up and gave it to Officer DeHoyos.
Officer DeHoyos identified the balloon received into evidence as the same he had received from Officer Hendry. He stated that his initials were placed on the balloon and they were on the exhibit shown to him at the trial. He further testified that he placed the evidence in a locked evidence box and described the box as “a small metal box with a slot in it that you can put stuff in there, but you can’t get it out.”
Officer Woodall testified that he retrieved the evidence from the box, placed his initials thereon, and transmitted such evidence to the Dallas City, County Criminal Investigation Laboratory. He identified the exhibit in the court room by means of his initials. He stated that the transmission to the laboratory was personally made by him handing the same to Witness Anderson.
Witness Anderson testified that he received the evidence from Officer Woodall and turned the same over to Dr. Mason.
Dr. Mason testified that he received the evidence from Witness Anderson and that capsules containing a brown material were in the balloon. He analyzed the substance in the capsules and testified that it was heroin.
We conclude that the chain of custody was properly shown, e. g. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972).
Appellant’s pro se briefs have been reviewed and we conclude that a discussion of the contentions therein would add nothing to the jurisprudence of this state.
There being no reversible error, the judgment is affirmed. |
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Robert FRAZIER, Appellant, v. The STATE of Texas, Appellee.
No. 45142.
Court of Criminal Appeals of Texas.
June 28, 1972.
Malcolm Dade, Joe K. Hendley, Dallas (Court Appointed on Appeal) for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a robbery conviction where the punishment was assessed by the jury at 50 years.
The record reflects a brutal fact situation. The State’s evidence shows that on the night of “February 26, 1969, the appellant entered a Seven-Eleven store in the City of Dallas where the complaining witness was on duty alone; that he assaulted the complaining witness by throwing her to the floor and stepping on her chest; that, following further physical violence, she was forced to open the case register from which the appellant took the money. Subsequently, twisting her arm behind her, the appellant forced the complaining witness from the store and she was taken several blocks away where she was stripped of her clothing, beaten and raped. Subsequently, she suffered a heart attack, impaired vision in her right eye, and had to have a tumor removed from her breast as a result of the stomping on her chest. The complaining witness testified she was married, had eight children, and that her husband was an employee of another Seven-Eleven store. The husband was not a witness.
Initially, appellant complains of the prosecutor’s jury argument. At the penalty stage of the trial, after appellant’s counsel had urged consideration of probation, the prosecutor argued: “. . . And then he rapes her and tells her if she leaves he’s going to kill her and she escapes. Now, you cannot understand what went through that woman’s mind. If it had been your wife, would you consider probation?”
The appellant’s objection to such argument was sustained and the jury instructed to disregard the argument. The mistrial motion was denied.
Subsequently, the prosecutor argued: . . He’s the one that sat in judgment on her. You can’t take away the experience, you can’t take away the thought and the idea of a lady’s husband always remembering it.”
Appellant’s counsel objected “to including the husband into evidence,” stating, “[h]is feelings are not before this Jury.”
The objection and subsequent mistrial motion were overruled. There was no request for a jury instruction to disregard.
It is difficult to understand why a prosecutor, given the fact situation here involved, would resort to such argument. In the first instance, the court promptly sustained the objection and gave admonitory instruction to disregard. In the second instance, although the argument was improper, we cannot conclude that it was of material character and calculated to prejudice the appellant when the entire record, as well as the circumstances of the case are considered. 5 Tex.Jur.2d Appeal and Error —Criminal § 436.
Appellant next contends the “trial court did not have jurisdiction of this cause.” This claim is based on the fact that the indictment was returned into Criminal District Court No. 5 of Dallas County on March 10, 1969 and given Cause Number C-69-1364-L. On the same date, such indictment was transferred to the Criminal District Court of Dallas County. The order accepting transfer reflects the cause number as C-69-1364-LH, and this is the number used throughout the proceedings. Appellant contends that since the order of transfer and order of acceptance contained different cause numbers, the said Criminal District Court never acquired jurisdiction of the case.
There is nothing in the record to reflect the numbering system used in Dallas County. It appears, however, that the letter “H” was added to the cause number to designate which court received the case upon transfer.
The very same contention advanced by appellant was raised in Garcia v. State, 429 S.W.2d 468 (Tex.Cr.App. 1968), and decided adversely to such contention. There, it was held that the addition of the letter “L” to the cause number on the indictment after it was transferred to Criminal District Court No. 5 of Dallas County did not deprive that court of its jurisdiction to try the case.
We find no merit in appellant’s second ground of error.
By pro se brief, appellant contends that his arrest was illegal and, therefore, his conviction is void. It is true that in a hearing in the jury’s absence the trial court concluded that the appellant’s arrest several days after the alleged offense was illegal, but no evidence was seized as a result of the search incident to the arrest and the jury was not informed of the fact that the appellant made an oral confession leading to the fruits of crime.
An indictment was subsequently returned and the appellant held to answer the same. The conviction is not void.
Appellant also contends in his pro se brief that he was placed in a lineup in absence of counsel in violation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
He makes no claim as to when such lineup took place so as to invoke the Wade-Gilbert decisions, and the record does not reflect that any lineup occurred. See Kirby v. Illinois, — U.S. —, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).
Prior to trial, the court did conduct a hearing on the admissibility of the complaining witness’s in-court identification of the appellant. There it was established she had selected appellant’s photograph out of a number of pictures shown her. There was nothing to show that the procedure used was impermissible or suggestive. The court found her identification to be based upon her observations during the commission of the crime; that there was no discrepancy between the description given police and appellant’s actual description; that no other person had been identified by the complaining witness; that no unreasonable lapse of time occurred between the offense and the viewing of pictures, and the procedure was not unnecessarily suggestive and conducive to irreparable mistake in identification. The court concluded that, based on the totality of the circumstances, appellant was not denied due process and the in-court identification was not tainted.
Appellant’s contention is without merit. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970); Evans v. State, 444 S.W.2d 641 (Tex.Cr.App.1969); Ward v. State, 474 S.W.2d 471 (Tex.Cr.App.1972).
The judgment is affirmed. |
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Charles Edward GRAYSON, Appellant, v. The STATE of Texas, Appellee.
No. 45041.
Court of Criminal Appeals of Texas.
June 21, 1972.
Charles E. Tobin, Dallas, for appellant.
Henry Wade, Dist. Atty. and John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for murder. Punishment was assessed by the jury at 250 years.
Appellant’s sole contention on appeal is that the trial court committed reversible error when it allowed testimony concerning an extraneous offense to be introduced into evidence over appellant’s objection.
The record reflects that on February 5, 1970, Harold C. McBride, the proprietor of the Payless Liquor Store in Dallas, suffered gunshot wounds during the course of a robbery of his store from which he later died. It is undisputed that, shortly prior to the robbery on that same day, the appellant had entered the liquor store for a brief period of time, purchased a beer and left. Upon leaving the store, the appellant returned to his car which was parked in an alley behind the liquor store. Persons in the car other than appellant were Thelma Jackson, Lenard Grayson (appellant’s brother), James Kemp, and Billy Ray Jackson. A few minutes later, appellant, James Kemp, and Billy Ray Jackson left the car and walked to the liquor store leaving Thelma Jackson and Lenard Grayson in the car. Appellant’s two companions entered the store while appellant stood on the outside of the building next to the front door.
James Bunch, the proprietor of a neighboring service station, had observed the movements of these three individuals and concluded that they were about to stage a robbery of the liquor store. Bunch then told a friend to call the police, grabbed his own gun and quickly proceeded to the front of the liquor store. Appellant had entered the front door by the time Bunch started toward the store. Bunch testified that, as he approached the store, he heard the sounds of groans coming from within the store. Upon reaching the glass front of the store, he stated that he observed one man standing just inside the front door of the store holding a gun, while the other two men stood next to McBride and that one of the men was hitting McBride. Billy Jackson was the first person to exit the store and, as he came out, he and Bunch began shooting at each other. Jackson was wounded and fell to the ground, whereupon, the appellant attempted to exit the store but was fired at by Bunch. The appellant and Bunch then began to fire several shots at each other. Bunch then stated that when he exhausted his ammunition and was forced to retreat to his service station to reload, the appellant had continued to shoot at him as he ran. At this time, the appellant and James Kemp fled the store and the appellant went to his waiting car and drove away.
Robert McKee had also observed the actions of the appellant and his companions prior to their entering the liquor store. McKee testified that when the appellant ran from the store following the shooting spree and drove off in his car, that he had followed him in his own car for a short distance to obtain the license plate number of the car.
Thelma Jackson, one of the two occupants that remained in appellant’s car during the robbery, testified that appellant had planned the entire robbery; that he left the car the first time to see if only one man was at the store, and that he had given his gun to Billy Jackson just before they left the car to enter the liquor store. She also stated that appellant directed them to shoot if there was any trouble.
Appellant testified that he had nothing to do with the robbery and that one of the guns (offered into evidence by the State) used in the commission of the offense had been stolen from him. He stated that he had returned to the liquor store because Kemp and Jackson had decided to buy some beer and that he was waiting outside the store when he noticed that Kemp was holding a gun on McBride while Billy Jackson was taking money out of the cash register. Appellant testified that he then entered the store and demanded to know “what the f was going on,” to which Kemp told him to “hold it down, man.” Appellant said that Billy Jackson then attempted to leave the store but was shot by a man as he came out the door. Appellant stated that this man also fired at him as he tried to leave, whereupon, he went back into the store and took a gun out of James Kemp’s hands. When he again tried to exit the store, the man fired at him and the appellant returned his fire; but when this man stopped firing, he ran from the store to his car and drove away.
Following this testimony by the appellant, the State offered the testimony of Ollie Maroney, a cashier at a Crystal Foods Grocery. Mrs. Maroney stated that the appellant had entered the grocery store at two separate times on January 8, 1970. On his second visit, the appellant and two other men proceeded to stage a robbery of the store. The witness positively identified the appellant as one of the robbers.
In the trial of a person accused of a particular crime, it is a general rule that evidence of previous or subsequent commission of other crimes, not connected with that for which he is on trial, is not admissible. This court has consistently held that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. Jones v. State, Tex.Cr.App., 481 S.W.2d 900 (1972); Powell v. State, Tex.Cr.App., 478 S.W.2d 95; Parks v. State, Tex.Cr.App., 437 S.W. 2d 554; Chandler v. State, Tex.Cr.App., 417 S.W.2d 68; Haiti v. State, Tex.Cr.App., 416 S.W.2d 824. However, this general rule has well recognized exceptions and in certain classes of cases extraneous offenses may be shown as part of the res gestae, or as reflecting upon the mental processes or mental attitude of the accused, where intent, malice or guilty knowledge is an essential element of the crime for which the defendant is on trial, or as throwing light upon the motive inducing the commission of the crime, or to prove identity of the defendant, where identity is an issue, and more especially, where such extraneous offenses have been executed according to a system or method, and it is shown that the accused committed other such offenses and, in so doing, followed the same plan or method as is shown to have been followed in the commission of the crime charged in the indictment. Bryant v. State, Tex.Cr.App., 471 S.W.2d 66; Owens v. State, Tex.Cr.App., 450 S.W.2d 324; 23 Tex.Jur. 2d Evidence, § 195.
Evidence of other crimes, however, may be introduced only if such evidence is shown to be both material and relevant to a contested issue in the case. Shaw v. State, Tex.Cr.App., 479 S.W.2d 918 (1972). In O’Brien v. State, Tex.Cr.App., 376 S.W.2d 833, this Court said:
“Texas follows the general rule and evidence can be offered as direct testimony, and in a case of circumstantial evidence where intent is an issue, but it more often is permitted to come in in the form of rebuttal evidence after the appellant has testified or offered a defense wherein he has stated that he did not intend to do the act. Parnell v. State, 166 Tex.Cr.R. 239, 312 S.W.2d 506; Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897.” (emphasis supplied)
In the instant case, appellant specifically denied any personal intent to rob the store or kill anybody in the store and further denied knowledge of anybody else’s intent to rob the store or kill anybody therein. Thus, appellant's intent became an issue, and proof of the extraneous offense was relevant and material to the question of appellant’s intent concerning the offense for which he was tried. O’Brien v. State, supra; Parnell v. State, supra; Vernon v. State, 170 Tex.Cr.R. 150, 338 S.W.2d 728; Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364. The similarities between the extraneous offense and the instant offense provide common distinguishing characteristics which show that appellant followed the same plan or method in the extraneous offense as is shown to have been followed in the instant case. In both instances, the place to be robbed was first visited by appellant for a short period of time followed by the return of appellant with two other persons to stage the robbery. Thus, the extraneous offense is also admissible to show system and method.
We do not find the separation of less than a month between the extraneous offense and the offense in question to be too remote for purposes of determining intent and system when such evidence is relevant to those issues and logically tends to show appellant’s guilt of the crime charged.
Appellant complains of the admission of the testimony of an extraneous offense without explanatory instructions having been given by the court limiting the purpose for which such testimony was admitted. The court, in its charge, instructed the jury regarding the limited purpose for which they might consider evidence of an offense other than the offense for which appellant was on trial. No objection was made to the court’s instruction, and nothing is preserved for review. See Hawkins v. State, Tex.Cr.App., 424 S.W.2d 907; Lopez v. State, Tex.Cr.App., 468 S.W.2d 365. If it be appellant’s contention that the court should have instructed the jury regarding the limited purpose for which the extraneous offense was admitted at the time it was introduced into evidence, no such request was made and nothing is before us for review.
The judgment is affirmed.
Opinion approved by the Court.
. James Kemp was also referred to in this record as James Edward Antwine.
|
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Gary Robert DETMERING, Appellant, v. The STATE of Texas, Appellee.
No. 45157.
Court of Criminal Appeals of Texas.
June 28, 1972.
Larry S. Parnass, Willie E. Phillips, Jr., Michael Greenberg, Parnass, Clement & Cline, Irving, for appellant.
Henry Wade, Dist. Atty., and George O. Washington, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is possession of LSD; the punishment, two (2) years in jail and a fine of $2,000.00.
We are met at the outset with the question of whether the trial court erred in overruling the Appellant’s motion to “examine and inspect all drugs or potions which are designated by the penal statute as dangerous drugs and which the State of Texas intends to introduce into evidence in this case and which is now in the possession of the District Attorney”. This motion was filed approximately two (2) months prior to the trial date. The trial court responded to such motion in part as follows:
“It is further specifically ordered that a visual examination only is being ordered by this Court.”
Apparently the trial court gave a literal interpretation to the word “inspection” found in Article 39.14, Vernon’s Ann.C. C.P.
In his Special Commentary on Article 36.14, V.A.C.C.P., our present Presiding Judge said that, “If it is known that the State is planning to base its case on a fingerprint, bullet, pistol or rifle, book or record, the defendant can have his own expert examine the same under the safeguards provided.” Although Judge Onion did not discuss drugs and although the Legislature did not name drugs as one of the items which could be “examined” under the discovery statute, it is clear that such is a proper interpretation of the statute. See also Willson’s Criminal Forms, 7th Edition, Section 2530. Therefore, we interpret the word “inspection” to mean more than a visual examination of an object. Where the item on which the State bases its case is, for example, a drug, a visual examination would not always divulge anything of probative value.
It follows that the trial court reversibly erred when he later denied the Appellant’s motion to “specifically instruct the District Attorney that inspection of such drugs shall include the right of the defendant to perform a chemical analysis on each variety of drugs which the State intends to introduce into evidence in this case, said analysis is to be made by a, qualified chemist in Dallas County, Texas, in whatever laboratory it is designated by the District Attorney and in the presence of whatever witness the District Attorney desires.”
For the reasons stated, the judgment is reversed and the cause remanded.
. The question presented in this case does not involve a motion by an accused for the chemical analysis of drugs made by the prosecutor’s chemist, see Feehery v. State, Tex.Cr.App., 480 S.W.2d 649 (1972), which this Court has held to be the work product of the State.
|
sw2d_481/html/0864-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Kenneth Edward JOHNSON, Appellant, v. The STATE of Texas, Appellee.
No. 45164.
Court of Criminal Appeals of Texas.
June 28, 1972.
John W. O’Dowd, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and George Karam, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction was for the possession of marihuana; the punishment, five years imprisonment. The appellant was granted probation on recommendation of the jury.
The sole contention is that “Appellant’s conviction should be reversed because it is based in part on evidence illegally obtained without a warrant and without probable cause.”
At approximately 4:00 p. m. on December 27, 1969, the manager of a mobile home park attempted to discuss with the appellant a report that he had received that appellant was disturbing the peace and racing his car around the mobile park. When the appellant, who was not a resident in the park, became belligerent and abusive in the language he used, the manager notified the police department by telephone.
Police officers Hake and Simper responded to the call. When they arrived at the mobile home park they knocked on the door of the trailer belonging to Delores Edson and her husband. The appellant opened the door and Officer Hake smelled the odor of marihuana smoke. The appellant “appeared to be high, his eyes were sort of red.” There was no smell of an alcoholic beverage on the appellant’s breath. The officer asked appellant if he owned the automobile across the street. Appellant said that he did. “He was very loud and boisterous” and “became very belligerent and started cursing and swearing. . He kept getting louder and people started gathering around.” Appellant was then placed under arrest and searched. The officers found a green, leafy plant substance in appellant’s shirt pocket. Hake then knocked on the door of the mobile home and asked the use of the telephone. He was invited into the home and permitted to use the telephone. Close to the telephone he saw “rolling papers” and a penny matchbox containing a green, leafy plant substance similar to that found in the appellant’s pocket.
Expert testimony showed the green, leafy plant substance in the matchbox and in the appellant’s pocket to be marihuana.
Mrs. Delores Edson testified that she and her husband were friends of the appellant; that appellant had been in the trailer about twenty minutes; that she had not seen the matchbox before it was discovered by the officer and that it did not belong to her or to her husband.
When the appellant commenced to curse and to create a disturbance, the officer had a right and the duty to arrest the appellant. Crawford v. State, 478 S.W.2d 456 (Tex.Cr.App.1972); Doby v. State, 454 S.W.2d 411 (Tex.Cr.App.1970); Cox v. State, 442 S.W.2d 696 (Tex.Cr.App.1969) and Carter v. State, 412 S.W.2d 54 (Tex.Cr.App.1967).
There was probable cause for appellant’s arrest when the officer smelled the smoke of marihuana and believed, as he testified, that a felony was being committed in his presence. Also, probable cause for the arrest existed when the officer observed the appellant to be “'‘'high" and in a condition suggesting he was under the influence of marihuana. See Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200 (Tex.Cr.App.1951); King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501 (Tex.Cr.App.1958) ; Henderson v. State, 422 S.W. 2d 175 (Tex.Cr.App.1967) and Gorrell v. State, 468 S.W.2d 95 (Tex.Cr.App.1971).
The arrest of the appellant was lawful and a search incident thereto was reasonable. The marihuana which was the fruit of the search was lawfully obtained and properly admitted in evidence. Crawford v. State, supra; Daniels v. State, 476 S.W.2d 12 (Tex.Cr.App.1972); Lara v. State, 469 S.W.2d 177 (Tex.Cr.App.1971) and Scallion v. State, 433 S.W.2d 438 (Tex.Cr.App.1968).
The marihuana recovered near the telephone was in open view near the “rolling papers” and was not obtained by virtue of an unlawful search. Forderson v. State, 467 S.W.2d 476 (Tex.Cr.App.1971) and Weeks v. State, 476 S.W.2d 310 (Tex.Cr.App.1972).
The judgment is affirmed.
Opinion approved by the Court. |
sw2d_481/html/0866-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Ruben V. COLUNGA, Appellant, v. The STATE of Texas, Appellee.
No. 44379.
Court of Criminal Appeals of Texas.
Jan. 11, 1972.
Rehearings Denied May 31, 1972.
Second Rehearing Denied July 19, 1972.
Nicholas & Barrera by Roy R. Barrera, Cecil W. Bain, San Antonio, for appellant.
Ted Butler, Dist. Atty., Charles T. Cona-way, John L. Quinlan, III, Lucian B. Campbell and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is murder; the punishment, one hundred ninety-nine (199) years.
Ruben Colunga was indicted for murder with malice in the stabbing death of Solomon Abdo, Sr., during a robbery at his store. The State contended that Hector Garza, Jesse Gonzales and Jesse Montez entered the store while Colunga circled the block in a car with Feliciana Martinez waiting for his confederates.
Appellant contends there is insufficient testimony to corroborate the accomplice witnesses.
This is the companion case to Garza v. State, Tex.Cr.App., 469 S.W.2d 169, but the facts and circumstances involving Col-unga are entirely different and, consequently, require different proof.
Two witnesses, Jesse Montez and Felic-iana Martinez, who the court charged were accomplice witnesses as a matter of law, testified appellant drove the get-away car and did not enter the establishment where the murder took place.
Under Art. 38.14, Vernon’s Ann. C.C.P., the testimony of an accomplice witness must be corroborated. The test of the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is inculpatory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient. Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629. The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. It is the combined cumulative weight of the evidence furnished by non-accomplice witnesses which supplies the test. Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422.
The State’s principal non-accomplice witness, Ernest Lopez, by whom it intended to place appellant near the scene and in the company of his co-defendants prior to the murder, testified that he knew the man, known to him as Tony, was Ruben Colunga but that he had never seen him before the day of the trial and, therefore, could not identify him as the man in the car on the night of the murder. The State claimed surprise and sought to impeach him stating he had told them he saw Colunga, known to him as Tony, in a car with the others on the night in question and that Colunga asked him for a pistol to use on a job. The State also introduced an affidavit Lopez gave to the police shortly after the incident where he also stated a man, known to him only as Tony, drove up to him in a car on the night of the murder and asked for the pistols. Lopez admitted the claimed conversations and signing the affidavit but still continued to deny he knew the appellant.
The State further showed that an offense was committed, that the fingerprints of appellant’s co-defendants were found in the establishment and that appellant was at a cafe later in the evening with a co-defendant and an accomplice witness. We have searched the record with care and find no further evidence connecting Colun-ga to the murder. There is no credible evidence placing him in the presence of the accomplice witnesses at or near the scene of the crime nor tending to connect him with the alleged crime.
The State relies on Edwards v. State, Tex.Cr.App., 427 S.W.2d 629. In Edwards, however, the appellant was- shown to be in the company of the accomplice near the scene of the crime at the time of its commission at an unusual hour, that he fled and was found in possession of a weapon belonging to the murder victim on the day after the homicide.
Chapman v. State, Tex.Cr.App., 470 S.W.2d 656, is more nearly in point. The case involved a robbery in which Chapman was an alleged accomplice. The evidence showed that at the time of his arrest in a cafeteria he had a pen in his hand and that a paper napkin was recovered from a table where the two arrestees were seated containing certain numerical notations including “600 bonds” and “600 me.”
In Chapman, supra, we found that evidence insufficient to corroborate the accomplice.
We reach the same conclusion here.
The judgment is reversed and remanded.
OPINION
ON STATE’S AND APPELLANT’S MOTIONS FOR REHEARING
DAVIS, Commissioner.
Both the State and the appellant have filed motions for rehearing.
The State urges that the witness Feliciana Martinez was not an accomplice witness as a matter of law and, therefore, her testimony need not be corroborated by non-accomplice testimony as required by Art. 38.14, Vernon’s Ann.C.C.P. The record reflects that the witness was present at the planning of the crime. The witness, appellant and their companions who entered the store and commited the murder and robbery all went to the scene of the crime in the same automobile. Feliciana Martinez and appellant waited for their companions in the getaway car until the crime was committed. The witness received a share of the fruits of the crime, however, slight they may have been. Certainly, there was evidence that the witness Martinez was an accomplice. At the very least, there was evidence which would have required submission of the fact question of whether she was an accomplice witness in the court’s charge to the jury. It follows that we cannot say, as a matter of law, that the witness was not an accomplice. Further, the trial court having charged the jury that Feliciana Martinez was an accomplice as a matter of law, such instruction became the law under which the jury was required to decide the case. For this court to consider the case on the basis that Feliciana Martinez was not an accomplice witness would be placing us in the position of reviewing the case on appeal upon a premise different from that upon which it was submitted to the jury.
Appellant urges this Court to reach a different disposition of the cause than the order of reversal and remand that was entered in the original opinion. Specifically, he requests that this Court either enter a judgment of acquittal or dismissal or that it instruct the trial court to enter a judgment of acquittal. This request is based upon the premise that the trial court committed fundamental error when it refused to grant appellant’s motion for a directed verdict of acquittal following the conclusion of the State’s evidence. At this point in the trial of the cause, the appellant pointed out the fact that the State had failed to corroborate the testimony of the accomplice witness. Therefore, the appellant contends that this court should now “undertake to do what the trial court failed to do.”
This contention, however, is against established precedent and statutory requirement. Article 44.25, V.A.C.C.P., expressly provides that, “The Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. A cause reversed because the verdict is contrary to the evidence shall be remanded for new trial.” (emphasis added). In addition, this Court has held in numerous cases that the proper disposition, upon a finding that the evidence is insufficient to corroborate the testimony of an accomplice witness, is to reverse and remand that cause for a new trial. See Noble v. State, 100 Tex.Cr.R. 404, 273 S.W. 251; Franklin v. State, 62 Tex.Cr.R. 433, 138 S.W. 112; Durham v. State, 106 Tex.Cr.R. 85, 290 S.W. 1092; Morris v. State, 135 Tex.Cr.R. 384, 120 S.W.2d 592; Donley v. State, 167 Tex.Cr.R. 427, 320 S.W.2d 847.
Appellant also contends that a retrial of this cause would place him in double jeopardy as he was entitled to an acquittal at the conclusion of the State’s evidence. This question is not before us; however compare Dupree v. State, 56 Tex.Cr.R. 562, 120 S.W. 871 (1909); Andrews v. State, Tex.Cr.App., 436 S.W.2d 546; Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947.
For the reasons stated above, the motions for rehearing are overruled.
Opinion approved by the Court.
. Article 38.14, V.A.C.C.P., provides: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed ; and the corroboration is not sufficient if it merely shows the commission of the offense.”
|
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Robert Lee TERRY, Appellant, v. The STATE of Texas, Appellee.
No. 45018.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
Dan J. Anderson, Richardson, for appellant.
Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is robbery by assault with a prior conviction for an offense of the same nature alleged for enhancement; the punishment, life.
The record reflects that two men robbed Nat Johnson after he left a Dallas County cafe. Two witnesses identified the appellant as one of the men who followed the victim out of the cafe and robbed him. Violen Elmo, Jr., appellant’s co-defendant, testified that he committed the robbery and that the appellant was not present.
Appellant’s ground of error number one is that the State, in violation of the Court’s earlier ruling granting his motion in limine, asked certain questions which “obviously inferred a prior offense by appellant.” In his brief appellant cites two places in the record where he contends the prosecutor alluded to an extraneous offense while cross-examining defense witness. They are:
“PROSECUTOR: Do you remember encountering a man earlier in the evening by the name of Mr. George, do you recall that?
“VIOLEN ELMO: No, sir.
“PROSECUTOR: How about a fella about two weeks earlier named Slim, you and Robert Terry?
“VIOLEN ELMO: No.
“MR. WHITLEY (Attorney for appellant) : Your Honor, I object to that. This is inferring something that is no way relevant to this case and I would object to it.
“THE COURT: All right. Sustained.
“MR. WHITLEY: I’ll ask that the jury be instructed to disregard.
“THE COURT: The jury is to disregard it, not to consider it for any purpose.”
* * * * * *
“PROSECUTOR: Do you know a man named Slim?
“APPELLANT: No, sir.
“PROSECUTOR: You’ve never heard of him?
“APPELLANT: No, sir.
“MR. WHITLEY: Your Honor, we’ll have the same objection to this line of questioning. It has no relevance to this case and no proper predicate, irrelevant.
“THE COURT: Sustained.”
Appellant does not suggest how the above constituted a violation of the court’s order or in what manner an extraneous offense is implied. We further note that in each instance the court instructed the jury to disregard the remarks. An instruction to disregard will cure error except in extreme cases where it appears that the question or evidence is clearly calculated to inflame or prejudice the minds of the jury and is of such a character that the impression it creates cannot be withdrawn from the jury. Guerra v. State, Tex.Cr.App., 478 S.W.2d 483; Mays v. State, Tex.Cr.App., 434 S.W.2d 140. No error is reflected.
Appellant’s ground of error number two relates to his objection to the court’s charge. The obj ection was:
“The defendant objects and excepts to the Court’s failure to the charge on the law of accomplice testimony.”
Appellant contends that although the witness Violen Elmo, Jr. was called by the defense he was entitled to a charge on accomplice testimony under Article 38.14, Vernon’s Ann.C.C.P., since the State relied on his testimony. Elmo testified fully in appellant’s behalf. A charge of the nature he suggests would have restricted and limited his own defensive testimony. The requested charge was properly overruled.
Appellant’s ground of error three is that the prosecutor erred when he, in his argument, told the jury that the witness Alice May Brown was “taking her life in her hands” when she testified at the trial. The court promptly sustained the appellant’s objection and instructed the jury to disregard the remarks. The argument was not shown to be made in bad faith. The instruction was sufficient to remove any possible error. No error is shown.
Finding no reversible error, the judgment is affirmed.
. Elmo’s conviction was affirmed in Elmo v. State, Tex.Cr.App., 476 S.W.2d 296.
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Henry Grady COLEMAN, Appellant, v. The STATE of Texas, Appellee.
No. 44605.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 19, 1972.
Wayne B. Ames, Abilene, for appellant.
Ed Paynter, Dist. Atty., Abilene, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is taken from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the court at life imprisonment.
The record reflects that, during the early evening hours of October 13, 1970, J. Rodney Miller, a narcotics officer for the Department of Public Safety, met appellant at a private residence in Abilene. Appellant delivered to Miller a tinfoil package containing two capsules. Miller placed the package in his pocket and drove appellant to Impact, Texas, to buy a six pack of beer. He gave appellant fourteen dollars in payment for the capsules. After leaving appellant, Miller initialed the package and each capsule and locked them in his brief case. A few days later he mailed the package to the Department of Public Safety Laboratory in Austin, where it was received by George Taft, who was employed there as a chemist. Taft examined the capsules, found them to contain heroin, and kept them in his possession until they were introduced at appellant’s trial.
Appellant complains that the chain of custody was not properly established. We find the evidence sufficient to establish the chain of custody of the package, e.g. Fuery v. State, Tex.Cr.App., 464 S.W.2d 666; Andrews v. State, Tex.Cr.App., 436 S.W.2d 546.
Appellant next contends that the trial court erred in refusing to grant his motion for continuance based upon the state’s failure to timely elect which one of six separate indictments the state would try on the date set for trial. He argues that the effect of the court’s ruling was to deprive him of adequate time to prepare.
The record reflects that counsel for appellant was appointed on December 10, 1970. His motion for continuance was filed on January 8, 1971, and was denied by the trial court on the same date. The case was tried on January 11, 1971.
Article 29.03, Vernon’s Ann.C.C.P., provides :
“A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.”
Where, as here, the motion is based upon equitable rather than statutory grounds, the action of the court thereon is discretionary; and this court will not overturn this decision unless a clear abuse of discretion is shown. Ward v. State, Tex. Cr.App., 427 S.W.2d 876. Appellant had a month to prepare his case, and no abuse of discretion is shown. Klechka v. State, Tex.Cr.App., 429 S.W.2d 900, cert, denied, 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592.
His next contention is that the court erred in refusing to grant his motion to quash the jury panel. The basis of this motion is an allegation that he was “blatantly paraded in front of and among the members of said jury panel while . . . handcuffed and accompanied by uniformed members of the sheriff’s department of Taylor County.”
This motion to quash was filed on the day of trial. No ruling was ever obtained with regard to it. With the exception of the allegation contained in the motion, the record is completely silent that such event occurred. No error is shown.
Appellant also urges that the trial court’s refusal to grant his motion in lim-ine and his motion for mistrial constitutes reversible error. This contention is based on answers elicited from Miller during cross-examination by appellant. He cites five examples of allegedly non-responsive and prejudicial statements made by Miller.
Without restating the testimony, we note that appellant asked for and received an instruction to disregard, in his example number one. No further relief was requested at this point. With regard to his next three examples of allegedly prejudicial testimony, the record reflects that he voiced no objection. With regard to his fifth example, he never objected to any answer or asked for any instruction but moved, instead, for a mistrial. This motion was overruled.
In order to preserve error concerning allegedly improper testimony, an objection to that testimony must be made. See, Robinson v. State, Tex.Cr.App., 441 S.W.2d 855. The reason for requiring that an objection be made is that any harm resulting from an unresponsive answer can normally be cured by an instruction from the court, e.g. O’Dell v. State, Tex.Cr.App., 467 S.W.2d 444; Robinson v. State, supra; Harris v. State, Tex.Cr.App., 435 S.W.2d 502; Moore v. State, Tex.Cr.App., 434 S.W.2d 852; Sligar v. State, 166 Tex.Cr. 365, 313 S.W.2d 613. We have carefully reviewed the record and have determined that appellant’s failure to seek relief at the time the answers were given waives any error.
His next complaint is that the trial court committed reversible error in failing to grant his requested definition of the word “sell” in the charge to the jury.
The trial court charged the jury that:
“By the use of the word ‘SELL’ is included barter, exchange, or give, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant, or employee . . .”
Appellant requested that the charge read:
“. . . that the word ‘sale’ of a narcotic drug may, but does not necessarily include barter, exchange, or to give or offer therefor; but that in any event such sale requires that something of value pass between buyer and seller whether as principal, proprietor, agent, servant or employee.”
Article 725b, Section 1(10), Vernon’s Ann.P.C., provides that:
“ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”
The trial court having defined this term by tracking the language in the statute, no error is shown.
Finally, appellant contends that the trial court erred in refusing to grant his motion to quash the indictment, arguing that the enhancement paragraphs of the indictment were improperly drawn.
These paragraphs meet the requirements set by this court in Dora v. State, Tex.Cr.App., 477 S.W.2d 20, and no error is shown.
We note that, although appellant was indicted under Article 63, V.A.P.C., the judgment herein reflects that punishment was assessed at life without a finding as to the two prior felony convictions. Therefore, the sentence is reformed to read that the appellant is sentenced to confinement in the Department of Corrections for a term of not less than five years nor more than life.
As reformed, the judgment is affirmed.
. It should be noted that all of the testimony of which complaint is made was not unresponsive. Counsel for appellant inquired as to how well Miller knew appellant and was told that Miller had bought drugs from him on several occasions. Counsel inquired into conversations between appellant and Miller and was given the details of the conversation, including the fact that appellant had told Miller about an extraneous offense. This entire portion of the record reflects an attempt on the part of the court to have counsel he more specific in his questions and to have Miller answer only the specific question asked. See, e. g., 62 Tex.Jur.2d, Witnesses, Sec. 169.
|
sw2d_481/html/0875-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Clarence Asel BEARD, Appellant, v. The STATE of Texas, Appellee.
No. 45108.
Court of Criminal Appeals of Texas.
June 28, 1972.
Franklin R. Navarro, Michael T. Brim-ble, Houston (on Appeal only), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Alfred Thomas, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for subsequent offense of driving while intoxicated (Article 802b, Vernon’s Ann.P. C.). After the jury had returned a verdict of guilty, the court assessed the punishment at two and one-half months in jail and a fine of One Hundred Dollars.
At the outset, appellant contends the court erred in overruling appellant’s motions to take depositions prior to trial.
Appellant filed applications to take depositions of three persons. In all applications, appellant sets forth as his basis for making such application “for the reason defendant seeks to preserve the testimony of . to insure that his testimony will be available for trial in the event that one of the contingencies set forth in Art. 39.12 of the Texas Code of Criminal Procedure should, in fact, arise. . . . ”
Article 39.02, Vernon’s Ann.C.C.P., provides :
“Depositions of witnesses may be taken by the defendant. When the defendant desires to take the deposition of a witness, he shall, by himself or counsel, file with the clerk of the court in which the case is pending an affidavit stating the facts necessary to constitute a good reason for taking the same, and an application to take the same. Provided that upon the filing of such application, and after notice to the attorney for the state, the courts shall hear the application and determine if good reason exists for taking the deposition. Such determination shall be based on the facts made known at the hearing and the court, in its judgment shall grant or deny the application on such facts.
“Amended by Acts 1967, 60th Leg., p. 1741, ch. 659, § 24, eff. Aug. 28, 1967.”
Appellant has failed to set forth in his application facts necessary to constitute good reason for taking the depositions. Further, the record does not reflect what facts, if any, were made known in support of such applications at the hearing on same. The trial court has wide discretion in either granting or denying applications for depositions. Aguilar v. State, Tex.Cr.App., 468 S.W.2d 75. See Tucker v. State, Tex.Cr.App., 461 S.W.2d 630; Langston v. State, Tex.Cr.App., 416 S.W.2d 821. No abuse of discretion is shown in overruling appellant’s applications for depositions.
Appellant next contends that the court erred in admitting into evidence an extraneous felony conviction. The indictment alleges that appellant was previously convicted on March 7, 1961, in County Court at Law No. 3 of Harris County, Texas, in Cause No. 150807, of driving and operating a motor vehicle upon a public highway while intoxicated. After the complaint, information and judgment, in 150807, were introduced into evidence and while Harris County Deputy District Clerk Roman was on the stand, the following occurred during direct examination by the State:
“Q Did you have occasion today to also bring the papers in Cause No. 111416?
“A Yes, sir.
“Q And in the papers of that case, is it indicated that a person by the name of Clarence Asel Beard admitted that he was the same person that was convicted in Cause No. 150807.
“A Yes.”
The fingerprints and signature on the appearance bond in Cause No. 111416 were admitted into evidence. The fingerprints and the signature on the appearance bond, in the instant case, were introduced into evidence. Identification Officer Scott testified that the fingerprints on the appearance bond in Cause No. 111416, the fingerprints on the bond in the instant case, and the fingerprints of appellant taken since the instant trial began are fingerprints of the same person. Through the appellant’s admission in Cause No. 111416, in which he acknowledged he was the person convicted in Cause No. 150807, and the comparison of fingerprints in Cause No. 111416 and in the instant case, the State was able to prove that appellant was the same Clarence Asel Beard who was convicted in Cause No. 150807 relied on in this cause for a previous offense.
Voluntary admissions of a party in one judicial proceeding are admissible against him in other judicial proceedings to which he may also be a party. Wingate v. State, Tex.Cr.App., 365 S.W.2d 169. See Saffel v. State, 115 Tex.Cr.R. 578, 28 S.W.2d 169; 24 Tex.Jur.2d Evidence, Sec. 630. Further, we fail to find evidence of an extraneous felony offense as contended by appellant. No error is shown.
Appellant complains of the court’s admission of the results of appellant’s urine test into evidence. In support of this contention, appellant alleges that he was not taken immediately before a magistrate after his arrest; that he was not given warning of his right to refuse to give the test; that there was no waiver of counsel at this stage of the proceedings; that the State failed to produce the consent of appellant and there was failure of proof that the urine sample taken by the officer was the same sample tested by the chemist.
The record regarding the admission of the urine sample reflets the following:
“Mr. Thomas (Counsel for State): Judge, it (urine sample) hasn’t been admitted into evidence.
“Mr. Navarro (Appellant’s Counsel): I am offering it.
“Mr. Thomas: He is offering State’s Exhibit No. 1 (urine sample) in evidence?
“Mr. Navarro: Right.”
Appellant’s objections are directed to the admission of the urine sample. Appellant, having introduced the urine sample into evidence, cannot complain about evidence which he introduced. Cook v. State, Tex.Cr.App., 409 S.W.2d 857; Garza v. State, Tex.Cr.App., 397 S.W.2d 847; Long v. State, Tex.Cr.App., 375 S.W.2d 913.
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court. |
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Donald Ray KENDRICK, Appellant, v. The STATE of Texas, Appellee.
No. 45161.
Court of Criminal Appeals of Texas.
June 28, 1972.
McKool, McKool, Jones, Shoemaker & Turley, by Jim Law, Dallas, for appellant.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction was for murder; the punishment, life imprisonment.
Ground of error number four challenges the sufficiency of the evidence to show “that April Tuft, and the woman described as having been shot in the 7-Elev-en Store were one and the same person.”
The appellant’s statement, admitted into evidence, in part is as follows:
“I know Charles Robinson and I have known him for almost three years. One night about a month or so ago Charles came to my house and said, ‘Let’s go riding around.’ We rode around for a long time and got to talking. . . . ‘let’s go rob something.’ We drove around and went by some service station and a 7-11 Store close to Sears. Finally we went out on Greenville and Forest Lane. . let’s rob that 7-11 Store where that lady is. Charles parked his car behind a Shamrock Service Station close to a house. I got a 12 gauge pump shotgun out of the car and we walked across a field to the 7-11 Store. There was someone in the phone booth and a lady on the side in a station wagon close to the washateria. We went inside the store and a lady was by herself there. I told her that it was a stick-up. She said, ‘You got to be kidding.’ Charles tried to open the cash register. The lady grabbed the phone and said, ‘I’m being robbed.’ About this time the gun went off. . . . The lady was shot and we ran out. When we got half way across the field, a car drove up in front of the store. I think that it was a white car. It stayed there. We went to Charles’ car and he drove us home. I left the shotgun in the car. We did not get any money or anything in the store.”
On January 27, 1970, at about 4:00 p. m., Pat Lowe stopped at the Seven-Eleven Store at the corner of Greenville Avenue and Forest Lane and saw her roommate, April Tuft, who was employed there. Later that evening she talked by telephone with April Tuft at about 8:30 p. m. and again at 10:45 p. m. When Pat Lowe called April Tuft at 10:45 p. m. Miss Tuft did not say “hello” but said “the store is being robbed. Call the police.” While still listening on the telephone, she heard a gunshot and her roommate groan a few times. Pat Lowe identified a picture of April Tuft which had been made by the pathologist who performed the autopsy.
Hugh Lawson testified he was using the telephone in a booth next to the Seven-Eleven Store on Greenville Avenue and Forest Lane at approximately 10:45 p. m. on January 27, 1970. He heard two loud noises close together. “A couple of fellows came running around the corner” saying “call the police.” They said someone had been shot in the store. Lawson hung up the phone and they called the police.
Francis Reed, manager of a dental laboratory, on his way from the airport at about 10:55 p. m., stopped to get some cigarettes at the Seven-Eleven Store. Reed saw the girl that he had seen working at the store before, slumped over on the floor. “She was coughing and kind of more or less trying to breathe and coughing — and was in a pool of blood there.” The phone was off the hook and covered with blood. Reed called for an ambulance and the police.
The Medical Examiner testified that he performed an autopsy on the body of April Tuft. Her “lungs, heart and ribs were completely destroyed from the shotgun blast — April Tuft died as a result of a shotgun wound to the chest.”
The evidence is amply sufficient to show that April Tuft, the alleged victim, was the same woman described as being shot at the Seven-Eleven Store. Compare Ware v. State, 480 S.W.2d 707 (No. 45,022, June 7, 1972). Ground of error number four is overruled.
Appellant’s first two grounds of error urge that his written statement was improperly admitted into evidence because it was not shown that he knowingly and intelligently waived his constitutional rights and the totality of the circumstances under which it was made rendered it involuntary and inadmissible.
At the time objection was made to the admission into evidence of appellant’s statement, a hearing was held out of the presence of the jury to determine its admissibility, in compliance with Article 38.-22, Vernon’s Ann.C.C.P. and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After the hearing the trial court entered of record findings of fact and law that the statement was voluntary and thereafter admitted the statement into evidence.
The court submitted to the jury appropriate instructions concerning the volun-tariness of the statement and the jury made a special finding that it was voluntarily made. The evidence supports the finding of the trial court and the special finding of the jury.
The evidence shows that the sixteen-year-old appellant, after he had been awakened at approximately 12:15 a. m. on February 13, 1970, at his family’s home, was arrested by three officers, armed with a search warrant. He was placed in a police car and taken approximately ten miles to the police station. One of the arresting officers, F. E. Babb, advised the appellant of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Babb only asked appellant general questions such as his birth date and where he attended school. Officer Wilkerson saw the appellant soon after 1:00 a. m. when the appellant was brought to the police station and advised him of his constitutional rights! Wilkerson then arranged for a magistrate to advise the appellant of his constitutional rights. At approximately 2:00 a. m. the appellant was taken with Robinson and Conley (alleged participants in the crime) before a magistrate who advised them of their constitutional rights as provided by Article 15.17, V.A.C.C.P. At the police station the appellant was placed and remained in a small room from the time of his arrival until the statement was made, except for the time he was taken before the magistrate. Several officers were in and out of the room; appellant answered general questions such as the name of his parents. He told the officers he had heard of the murder of the woman at the Seven-Eleven Store but he did not know anything about it.
At approximately 3:30 to 3:45 a. m. Officer Rose introduced himself to appellant and advised the appellant of his constitutional rights in accordance with Article 38.22, V.A.C.C.P. and Miranda v. Arizona, supra. Rose testified he did not tell the appellant that he had already taken a statement from his companion Robinson. The appellant, an eleventh grade student, testified that he told the officer he did not want an attorney. The statement was taken by the officer in “longhand” and was typed by another officer. After it had been typed it was read to appellant by Officer Rose in the presence of Lorin Wilhelm, a “newsman” with KBOX Radio Station. Wilhelm signed the statement acknowledging that he had witnessed the appellant sign the statement.
We conclude that the record supports the findings of the trial judge and the jury that appellant’s statement was made voluntarily and not in violation of the Constitution or laws of this State or the United States and was properly admitted into evidence. See and compare Grayson v. State, 438 S.W.2d 553 (Tex.Cr.App.1969); Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970); Nash v. State, 467 S.W.2d 414 (Tex.Cr.App.1971); Whitaker v. State, 467 S.W.2d 264 (Tex.Cr.App.1971); Garza v. State, 469 S.W.2d 169 (Tex.Cr.App.1971).
Further, the appellant apparently as a matter of trial strategy, introduced as defense exhibits twelve copies of the appellant’s statement and had them distributed to the jury so they might follow the reading of the statement as the appellant read the statement when he testified.
The appellant’s third ground of error is that “The trial court committed reversible error in refusing to allow the testimony of an expert witness called by the defense for the purpose of interpreting the accused’s National Achievement test scores.”
The witness was a guidance counselor at Lake Highlands High School and was the custodian of certain records purporting to be scores of various tests administered to the appellant. The tests had not been administered by nor under the supervision of the witness.
Assuming that the witness was a qualified expert and that the test scores required the interpretation of an expert, the appellant cannot be heard to complain because the records bearing the test scores were not properly authenticated and offered into evidence before the jury. Although the records were admitted for purposes of a bill of exception concerning the exclusion of the testimony of that witness, they were not authenticated and offered before the jury. The records were not in evidence and the exclusion of the witness’s testimony regarding the records and test scores was not error.
The appellant’s ground of error number five complaining of the court’s refusal to instruct the jury on the law of circumstantial evidence is without merit. The refusal to give an instruction on circumstantial evidence was proper in view of the appellant’s written confession admitting the shooting of the victim. Garza v. State, 468 S.W.2d 440 (Tex.Cr.App.1971); Dominguez v. State, 445 S.W.2d 729 (Tex.Cr.App.1969); Odumes v. State, 445 S.W.2d 218 (Tex.Cr.App.1969); Patterson v. State, 416 S.W.2d 816 (Tex.Cr.App.1967); and Hintz v. State, 396 S.W.2d 411 (Tex.Cr.App.1965).
The appellant’s last ground of error is that “The trial court committed reversible error in exhibiting bias and prejudice to the jury by his conduct and demeanor throughout the trial and further by commenting repeatedly upon the weight and sufficiency of the evidence.”
The record, by way of motion for new trial or by other means, does not reflect the exhibition of “bias and prejudice” or the “conduct and demeanor” of the trial court alleged in this ground of error.
In support of this ground of error the appellant designates in the record several comments of the trial judge made during the course of the trial. These several alleged grounds of error were not “set forth separately” as required by Article 40.09 § 9, V.A.C.C.P.; there is, therefore, not a proper ground of error for our consideration.
However, we have concluded that the comments complained of, if properly before us, would not constitute reversible error in this case.
The judgment is affirmed.
Opinion Approved by the Court.
. While the court in this case submitted a charge requiring a special finding by the jury on the voluntariness of the confession, such a submission and special finding by the jury is not required by law.
|
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Earnest Ray HUTCHINSON, Appellant, v. The STATE of Texas, Appellee.
No. 45047.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
John K. Coil, Dallas (Court appointed), for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction was for burglary with intent to commit theft; the punishment, enhanced under the provisions of Article 63, Vernon’s Ann.P.C. by proof of two prior non-capital felony convictions, life imprisonment.
The first contention made is that State’s Exhibits 1 through 4 were improperly admitted in evidence because they were not filed with the papers in the case three days prior to trial and the appellant was unfairly surprised.
Exhibits 1 through 4 were the indictments, judgments and sentences for prior convictions and the appellant’s photograph, fingerprints and identification card contained in a certified prison packet used to prove the prior convictions alleged for enhancement of punishment.
The appellant apparently bases his complaint on the provisions of Article 3731a, Section 3, Vernon’s Ann.Civ.St.
The appellant was placed on notice that such evidence would be offered by the allegations made in the indictment and his objection, based upon surprise, was properly overruled. Roberts v. State, 164 Tex. Cr.R. 537, 301 S.W.2d 154 (1957); McCown v. State, 170 Tex.Cr.R. 142, 338 S.W.2d 732 (1960) and Howard v. State, 453 S.W.2d 150 (Tex.Cr.App.1970).
The appellant’s only remaining contention is that the evidence is insufficient to support the conviction.
Mrs. Sam Herrera testified that at about 7:00 p. m. on the night of December 24, 1969, she was at home with her family watching television when she heard a noise. After being summoned to the window of her duplex apartment by her teenage son, she observed a man repeatedly kicking and breaking the window of the 2001 Club which was located immediately across the alley from the Herrera residence. Mrs. Herrera testified that after she telephoned the police she saw the man still kicking the window; she stated that while she could not see whether the man’s arm entered the premises of the club because her view was obstructed by his body, she did see his foot go inside the building. Mr. Herrera, who had also been watching television, went outside the duplex and from there observed the man kicking the window in and thereafter saw him reaching inside the window. Within minutes two officers from the Dallas Police Department arrived on the scene and Mr. and Mrs. Herrera saw the police arrest the man they had been watching.
When the officers arrived they arrested the appellant, who had been “drinking,” while he was still pulling on some bars over the window. The burglar alarm had been triggered. Testimony showed that immediately adjacent to the window, and visible through the frosted glass, was an old cash register. It could be reached through the window that had been broken. Richard McCartney, who was in charge of the club while the owner was out of town, testified that it was a usual practice for the cash register drawer to be left open with approximately 25 pennies in it when the club was not open for business; McCartney testified that when he examined the cash register some time subsequent to the burglary, there was no money in it. When arrested, the appellant had three dollars in currency and $.17 in coins in his pocket.
The evidence is sufficient to show “breaking” and “entry” into the building. See Hendrix v. State, 474 S.W.2d 230 (Tex.Cr.App.1971); Taylor v. State, 159 Tex.Cr.R. 441, 264 S.W.2d 115 (1953) and Turner v. State, 165 Tex.Cr.R. 106, 303 S.W.2d 386 (1957).
The evidence is also sufficient to show that the breaking and entry was with the intent to commit the offense of theft. The rule applicable here has been stated to be “The intent with which the defendant entered the house is a question of fact for the jury, to be gathered from all the circumstances of the case. When it is alleged that the burglarious entry was made with intent to commit theft, and the jury have found that such entry was made with such intent, and such finding has been approved by the trial court, the judgment of conviction will ordinarily be sustained if there is nothing in the testimony to indicate that such entry was made with any other intent.” 4 Branch’s P.C.2d § 2535 at 862 (2d ed. 1956). See Henderson v. State, 94 Tex.Cr.R. 97, 250 S.W. 688 (1923) and O’Neal v. State, 106 Tex.Cr.R. 158, 291 S.W. 892 (1927). Further, the act of breaking and entering a house at nighttime raises the presumption the act was done with intent to steal. Powell v. State, 475 S.W.2d 934 (Tex.Cr.App.1972); Byrd v. State, 435 S.W.2d 508 (Tex.Cr.App.1968); Briones v. State, 363 S.W.2d 466 (Tex.Cr. App.1963) and Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524 (1958).
The evidence is sufficient to prove the primary offense, but it is insufficient to sustain the conviction under the provisions of Article 63, V.A.P.C.
For the purposes of enhancement, the indictment alleges that the appellant was convicted of the offense of passing a forged instrument knowing it to be forged in Dallas County on the 8th day of January, 1963, in Cause No. D-9214-J and that prior to the commission of that offense he was convicted for the offense of theft of corporeal personal property of the value of over $50.00 in Dallas County on the 28th day of April, 1960, in Cause No. D-692-H.
There is no evidence in the record as to when the offense alleged in Cause No. D-9214 — J was committed. The indictment in that cause number alleges the offense was committed on or about the 28th day of October, 1962. That indictment was returned and filed on the 29th day of November, 1962. The statute of limitations for the offense of passing a forged instrument is ten years. Article 12.01(3), Vernon’s Ann.C.C.P. In securing the conviction in Cause No. D-9214-J, proof that the offense was committed on a date prior to the conviction in Cause No. D-692-H could have been made.
It has been consistently held that to invoke the provisions of Article 63, V.A. P.C., it is necessary that each succeeding conviction be subsequent both in point of time of the commission of the offense and the conviction therefor.
The indictment must so allege and the averments of the indictment must be supported by proof. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959); Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960); Lee v. State, 400 S.W.2d 909 (Tex.Cr.App.1966); Jones v. State, 422 S.W.2d 183 (Tex.Cr.App.1967) and Rounsavall v. State, 480 S.W.2d 696 (May 31, 1972), and cf. Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971).
The evidence proves the appellant was convicted of the offense of theft in Cause No. D-692-H prior to the date that he was proved to have committed the primary offense of burglary with intent to commit theft in this case. This proof will sustain a conviction for a subsequent offense of the same nature under the provisions of Article 62, V.A.P.C. The punishment provided by law is twelve years imprisonment.
The judgment [and sentence are] therefore reformed to provide for the appellant’s confinement in the Texas Department of Corrections for a period of twelve years. See Lee v. State, supra, and Hamilton v. State, 397 S.W.2d 225 (Tex.Cr.App.1965).
The judgment, as reformed, is affirmed.
Opinion approved by the Court.
. Article 1394, V.A.P.O. provides:
“By ‘breaking,’ as used in this chapter, is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute breaking; it may be by lifting the latch of a door that is shut, or by raising a window, the entry at a chimney, or other unusual place, the introduction of the hand or any instrument to draw out tlie property through an aperture made by the offender for that purpose.”
. Article 1393, V.A.P.C. provides in part:
“The entry is not confined to the entrance of the whole body; it may consist of the entry of any part for the purpose of committing a felony or theft,
|
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Nathaniel ADAMS, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 44820.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 19, 1972.
• Dickson & Associates by Jon E. Mercer, Houston, for appellant.
Carol C. Vance, Dist. Atty., James C. Brough and Henry Oncken, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for murder without malice. Trial was held before a jury, which assessed punishment at confinement for five years.
Appellant’s sole ground of error concerns the overruling by the trial court of his motion for new trial, in which he alleged jury misconduct. A hearing was held on the motion, and at such hearing a juror’s affidavit was admitted in evidence in support of the motion. The trial court overruled appellant’s motion.
In his affidavit, the juror stated: (1) that he concluded from “the comments and attitudes” of several of the other jurors that they had decided the guilt of appellant before the case was given to the jury; (2) that counsel for the defense was criticized by the other jurors for his cross-examination of the State’s witnesses; (3) three jurors announced, after retiring to deliberate their verdict, “that they would vote either way, that it was up to the majority”; (4) that “numerous comments were made by several members which demonstrated an overwhelming racial bias and prejudice against the defendant because he was a negro,” and that one juror commented that she had driven by government apartment projects and that all of “those people” had Cadillacs. The juror further stated that it was obvious that the decision of the majority of the members was based more upon racial prejudice than upon an evaluation of the evidence; (5) that during their deliberations, (a) one juror stated that his father had operated a service station for several years and had never shot anyone, (b) another juror stated that while the men under him in his work fought often, none had ever shot another; (6) that the other jurors discussed the fact that they believed appellant was under the influence of narcotics, the impression being based upon the appearance of appellant’s eyes; (7) that several of the jurors were able to see photographs of the deceased which were not introduced into evidence; (8) that the jurors discussed the fact that appellant had failed to comply with a child support order and; (9) that the juror resolved any question in his own mind as to appellant’s innocence after he heard of a prior inconsistent statement by a witness.
We are of the opinion that the trial court did not err in overruling appellant’s motion for new trial. That portion of the affidavit in which the juror explains the reason behind his vote is merely an attempt by the juror to impeach his verdict. It is well settled that a juror may not explain or impeach his verdict by showing the reason for the conclusion reached, e. g., Fontenot v. State, 426 S.W.2d 861 (Tex.Cr.App.1968); Gonzales v. State, 398 S.W.2d 132 (Tex.Cr.App.1966); Stokes v. State, 165 Tex.Cr.R. 269, 305 S.W.2d 779 (1957).
Likewise, the mental processes by which a juror reaches his verdict are not grounds for reversal. See Simmons v. State, 153 Tex.Cr.R. 228, 219 S.W.2d 458 (Tex.Cr.App.1949). There was no showing that any statement by any juror as to race influenced any other juror, therefore, no error is shown. See Scott v. State, 352 S.W.2d 726 (Tex.Cr.App.1962).
The record in this case does not contain a transcript of the proceedings of the trial, but merely contains a transcript of the proceedings at the hearing on the motion for new trial. That being the case, this Court is unable to review intelligently those portions of the affidavit which relate to discussions of evidence and/or matters allegedly not in evidence. Mendoza v. State, 442 S.W.2d 690 (Tex.Cr.App.1969) ; Dennehy v. State, 116 Tex.Cr.R. 574, 31 S.W.2d 639 (1930); Phillips v. State, 103 Tex.Cr.R. 358, 280 S.W. 1065 (1926); Pritchard v. State, 82 Tex.Cr.R. 219, 199 S.W. 292 (1917). Without the proceedings at trial, this Court cannot determine the harm, if any, which resulted from the discussions.
The statement that three jurors announced that they would vote with the majority was, again, a statement in regard to their mental processes. Absent a showing that they agreed to be bound thereby, there is no error. Phillips v. State, 152 Tex.Cr.R. 608, 216 S.W.2d 211 (1948); Papageorge v. State, 120 Tex.Cr.R. 574, 48 S.W.2d 991 (1932).
The trial court did not abuse its discretion in overruling appellant’s motion for new trial. The judgment is affirmed. |
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George Howard SMITH, Appellant, v. The STATE of Texas, Appellee.
No. 45035.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
C. C. Divine, Houston, for appellant.
Henry Wade, Dist. Atty., Robert T. Bas-kett, Asst. Dist. Atty., Dallas, Jim D. Voll-ers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
The appellant was convicted of possession of heroin and assessed a life sentence.
Initially, appellant challenges the sufficiency of the evidence to support his conviction.
The record reflects that Dallas City Police Officers executed a search warrant at 3701 Mallory Street in Dallas on June 5, 1970. While they were there, appellant drove up, took a black bag out of the trunk of the car he was driving and came into the house. Upon entering the house, he was taken into custody and searched for weapons. The black bag was shown to contain approximately 28 grams of heroin and various narcotic paraphernalia. The chain of custody of the contraband was established and the chemical analysis showed the substance to be heroin. The officers testified that appellant had fresh needle marks on his arm.
Appellant testified he came to Dallas from Louisiana on June 4, 1970 to look for used ambulances and hearses as his father was in the funeral home business and, also, he (the appellant) was planning to go into the ambulance business. He related that before playing golf with Leroy Moore of Fort Worth on June 5th, he followed Moore to a tire company where Moore left his car for some repairs and that subsequently they went to a liquor store operated by a friend of Moore’s. There he encountered a man known to him as “Little Will” whom he had met on a previous occasion in Dallas and in whose home he had visited. “Little Will” invited the appellant to spend the night in his home and then asked if the appellant would bring to his house a black bag containing a shaving kit so that his wife would not know he had spent the previous night with his girl friend. Appellant agreed and gave his car keys to “Little Will” who placed a black bag in the trunk of appellant’s Lincoln Mark III automobile. After his golf game, appellant related he decided not to spend the night at “Little Will’s” home, but, following directions given, drove to 3701 Mallory to return the shaving equipment bag where he was arrested.
At the time of the trial on March 10, 1971, he displayed his arms to the jury to show there were no needle marks or tracks, save a scar where his wife burned him with a cigarette while they were watching TV one night.
The jury was the judge of the credibility of the witnesses, and the evidence viewed in the light most favorable to the jury’s verdict, is sufficient to sustain the conviction.
Appellant also claims the “search warrant is insufficient and the fruits of the search inadmissible.” This contention is based on the fact that the affidavit, upon which the search warrant in question was issued, was not signed by two affiants, and the house involved was a private dwelling or residence. Appellant relies upon Article 666-20, Vernon’s Ann.P.C. That statute, by its own terms, applies only to liquor law violations and can have no application in the instant case. See Williams v. State, 166 Tex.Cr.R. 368, 314 S.W.2d 308 (1958), and Moore v. State, 456 S.W.2d 114 (Tex.Cr.App.1970).
An examination of the affidavit reflects a compliance with the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Appellant’s claim that a police officer cannot be a “credible person” is totally without merit.
Appellant’s remaining ground of error that he “was denied a fair and impartial trial and deprived of due process of law” does not “. . . set forth separately each ground of error of which the defendant desires to complain on appeal . . ; nor does his brief present the matters contained therein “. . . in such (a) way as that the point of objection can be clearly identified and understood by the court. . . ” See Article 40.09, § 9 Vernon’s Ann.C.C.P. This multifarious ground of error presents nothing for review. See Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Langham v. State, 473 S.W.2d 5l5 (Tex.Cr.App.1971), and Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971).
We do note that Officer Ball testified he had not prepared an “offense report” but had prepared what he termed a “prosecution report.” After Ball had testified, such report was requested for the purposes of cross examination and possible impeachment. The court refused the request on the basis that the same was the “work product” of the State. See Article 39.14, Vernon’s Ann.C.C.P. Here, after the witness testified, the “Gaskin Rule” (Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962)), came into play and the court’s reliance on the “work product” provision of Article 39.14, supra, was misplaced. However, the appellant, at no time, made a request to have such report incorporated in the appellant record for review by this court. See Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969).
Finding no reversible error, the judgment is affirmed. |
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Harold Lloyd FINKLEA, Appellant, v. The STATE of Texas, Appellee.
No. 45016.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
James P. Finstrom, Dallas, for appellant.
Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, and Jim D. Vol-lers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, COMMISSIONER.
The conviction was for the possession of marihuana; the punishment, assessed by a jury, life imprisonment.
The appellant’s first ground of error is that “the words ‘Against the peace and dignity of the State’ have been stricken and dismissed from the indictment” rendering the indictment “void because it fails to comply with Article Five, Section 12 of the Constitution of the State of Texas, and Article 21.02, V.A.P.C.”
The appellant was indicted under the provisions of Article 63, V.A.P.C. Two prior non-capital felony convictions were alleged in the second and third paragraphs of the indictment for the purpose of enhancing the penalty. Prior to trial the State filed a motion to “strike and dismiss the 2nd and 3rd paragraphs of the indictment and allow the State to proceed to trial on the remaining portion of the indictment.” The motion was granted as reflected by the trial court’s docket.
The appellant argues that the third paragraph was separated from the concluding words of the indictment “Against the peace and dignity of the State” by only a comma and that the quoted words were a part of the third paragraph which was stricken.
We do not construe the mandatory conclusion which was printed on the indictment form to be a part of the stricken paragraph alleging a prior conviction.
Striking the paragraphs alleging the pri- or convictions did not prejudice the rights of the appellant but were calculated to be beneficial to him. We do not see how the appellant was misled or harmed in any way. See Rodriguez v. State, 449 S.W.2d 469 (Tex.Cr.App.1970) and Robinson v. State, 415 S.W.2d 180 (Tex.Cr.App.1967).
The first ground of error is overruled.
Appellant’s second ground of error complains that error was committed in admitting “Marihuana into evidence against appellant during this prosecution (Sic) was the result of an illegal arrest and search and seizure incident thereto.”
There was no objection made when the marihuana, which had been thrown from the automobile and abandoned by the appellant, was offered into evidence. No error is presented. Slaughter v. State, 439 S.W.2d 836 (Tex.Cr.App.1969); LeBlanc v. State, 424 S.W.2d 434 (Tex.Cr.App.1968); Gutierrez v. State, 423 S.W.2d 593 (Tex.Cr.App.1968); Boykin v. State, 172 Tex.Cr.R. 652, 362 S.W.2d 328 (1962) and Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715 (1957).
Further, it appears that there was probable cause for appellant’s arrest, there was no search, the marihuana was abandoned and the seizure of the contraband was lawful.
The appellant was the passenger in an automobile which Gary Lynn Downs was driving on a street in Duncanville, Texas. Detective Hopgood stopped the automobile at approximately 12:30 or 1:00 p. m. for a traffic violation. Hopgood issued a citation to Downs for failure to give a signal when making a turn. When the automobile came to a stop Hopgood saw the appellant “very hastily” throw an object down beside the automobile into the gutter. Hopgood then notified his dispatcher by radio where he was and before he could get out of his vehicle the driver of the automobile came back to the patrol car. The driver inquired as to why he had been stopped. During this conversation with Downs and while they were walking toward the automobile, Hopgood observed that the appellant “kept looking back and he would turn back around and look back again like he was very nervous and, also, the driver was very nervous, too.” At Hopgood’s request Downs exhibited a “driver’s” license as they continued to walk toward the automobile where the appellant was seated. The appellant “looked like he was trying to push or stomp a box down in the floorboard—or trying to get it up under the seat and, also, in the front seat beside the passenger (appellant) and the driver was a small box and inside the small box it had a purple narcotics seal across one of the small boxes.”
Hopgood then ordered Downs and the appellant to stand outside and place their hands upon the automobile. He then radioed for assistance. Downs was handcuffed and placed in the patrol car. Lieutenant Hillard arrived at the scene and took charge of the appellant. Hopgood retrieved the object thrown from the automobile by the appellant. The object was a plastic bag wrapper for “Tastee Bread” and in it he found seven match boxes wrapped in foil. The match boxes contained what was proved to be marihuana.
Appellant’s second ground of error is overruled.
The appellant’s third ground of error complaining of the admitting into evidence “of capsules, pills and miscellaneous drugs and drug apparatus over appellant’s objections that the same were not relevant” is without merit as the complained of objects were obtained at the same time of the arrest and of the abandonment of the marihuana by the appellant. Holman v. State, 474 S.W.2d 247 (Tex.Cr.App.1971); Miller v. State, 469 S.W.2d 180 (Tex.Cr.App.1971); Beeler v. State, 374 S.W.2d 237 (Tex.Cr.App.1964), cert, denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 51.
The appellant’s fourth ground of error is that the court admitted the marihuana into evidence when a proper chain of custody had not been shown. There was no objection made when the marihuana was admitted in evidence.
Also, as we understand the record, Hop-good identified a match box containing marihuana as having come from the “Tas-tee Bread wrapper” and that it, along with other evidence, was delivered to Chief of Police McElroy. McElroy delivered the evidence to Anderson, a chemist and toxicologist, who analyzed and determined the nature of the evidence. He testified that State’s Exhibit Number 4 was a match box containing marihuana.
We fail to perceive error and this contention is overruled.
A review of the complete record fails to reflect that the appellant received ineffective assistance of counsel at his trial as he alleges in his fifth ground of error.
In the punishment phase of the trial the State proved two prior felony convictions and offered proof that the appellant’s reputation for being a law-abiding citizen was bad. This evidence was undoubtedly considered by the jury in assessing the appellant’s punishment.
The appellant’s pro se brief urges “The classification of marihuana in the Narcotic Drug Regulation Act, (Article 725b) V.A.P.C. with its attendant punishment and sentencing provisions is arbitrary and deprives the appellant convicted thereunder of equal protection of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and the Texas Constitution.” This issue has been decided contrary to the contention of the appellant. See Sanders v. State, 482 S.W.2d 648 (1972) and the cases therein cited, including Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968).
The additional issues raised in appellant’s supplemental pro se briefs have been considered and do not require further discussion.
The judgment is affirmed.
Opinion approved by the Court. |
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Larry Kent GRAY, Appellant, v. The STATE of Texas, Appellee.
Nos. 45462-45476.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 17, 1972.
Jon N. Hughes, Houston (court appointed), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and James A. Moseley, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
These fifteen appeals are from convictions for rape. The punishment was assessed at life in six cases. In the, other nine cases, the punishment was assessed at twenty years each. None of the sentences was cumulated.
After the death penalty was waived and after the appellant was properly admonished of the consequences of his plea in each case, he entered pleas of guilty. He agreed in writing and in open court to the stipulation of evidence and waived the appearance, confrontation and cross-examination of witnesses. He also waived his right against self-incrimination and under oath judicially confessed in each case to making an assault upon the woman named in the indictment and by force and threats without her consent ravish and have carnal knowledge of her.
Affidavits of some of the complaining witnesses were introduced. In some instances, the appellant, armed with a knife or gun, would accost two women, commit rape upon both, force them to commit sodomy upon him and upon each other. He would then rob them of their money and jewelry and tie them up with their clothing and leave. The women raped were from 14 to SI years of age. These offenses occurred over a period of several months in 1969 and 1970.
The evidence is sufficient to support the conviction in each case.
Counsel in the appellate brief suggests that there might be a constitutional question of appellant’s competency to stand trial under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. In that case there was a long history of bizarre behavior and the Supreme Court held that the trial court on its own motion should have conducted a hearing on the competency to stand trial.
In the present case, the question was not raised before or during the trial. There is no evidence or suggestion of insanity in the record. It is shown that the appellant finished the eleventh grade in school. The first counsel for the defense who was retained had an electroencephalogram performed on the appellant and the tests were negative. Appointed counsel informed the court that the appellant was competent. No hearing on competency to stand trial was required.
Nothing in the record reflects error.
The judgments are affirmed. |
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Larry WILLOUGHBY, Appellant, v. The STATE of Texas, Appellee.
Nos. 44989-44993.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
Emmett Colvin, Jr., Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., Edgar A. Mason, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
These are appeals from convictions in five cases, tried simultaneously by agreement before a jury. The cause number and the offense charged, with the punishment assessed by the jury in each case, are as follows:
No. 44,989 — Sale of marihuana 15 years
No. 44,990 — Sale of marihuana 15 years
No. 44,991 — Dispensing marihuana 15 years
No. 44,992 — Possession of marihuana 2 years
No. 44,993 — Dispensing marihuana 15 years
While the sufficiency of the evidence is not challenged, certain facts are deemed necessary for an understandable disposition of these appeals.
Sam C. Gonzales, a Dallas police officer, testified that on April 8, 1970, while working as an undercover agent, he was introduced to the appellant by an unnamed confidential “informant.” The informant took Officer Gonzales to the appellant’s home, brought the appellant to the car and introduced the two. The informant then went away from the car while Officer Gonzales and the appellant talked. The informant only returned to the car when the appellant left briefly and absented himself again when the appellant returned. Marihuana was not discussed when the informant introduced the two nor when the informant went to the car during appellant’s brief absence. Officer Gonzales further testified that the informant never again accompanied him to meet appellant and that he did not have any further contact with the informant until after appellant’s arrest.
On April 9, 1970, the appellant sold Officer Gonzales two "baggies” of marihuana for $30.00. On April 16, the appellant sold Officer Gonzales a “short lid” of marihuana for $10.00. On April 29, appellant gave Officer Gonzales a matchbox containing marihuana. On May 6, appellant gave the officer a glass vial containing marihuana. Officer Gonzales also testified that it was always the appellant who brought up the subject of marihuana.
Larry Collins of the Dallas Police Department testified that on May 6, 1970, he and other officers executed a search warrant at the appellant’s apartment. They knocked at the door and no one answered. They then kicked the door open and found no one present. Pursuant to a search they found four hundred and fifty grains of marihuana, two cigarette rollers and cigarette papers, and a disposable hypodermic syringe and needle. During the search of' the apartment the appellant returned, was placed under arrest and searched. This search revealed an LSD tablet on the appellant’s person.
Appellant complains that the trial court erred by refusing to force the State to name the confidential “informant” and thereby violated his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. Appellant relies primarily upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro, the Supreme Court addressed itself to a particular limitation on the “Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law” by stating:
“Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” 353 U.S. at 60-61, 77 S.Ct. at 628.
The Supreme Court further stated:
“Whether a proper balance [between public interest in nondisclosure and the individual’s right to prepare his defense] renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id., at 68, 77 S.Ct. at 629.
At the time during the trial when the appellant moved for disclosure the trial court had before it only the testimony of Officer Gonzales. Based upon this testimony, the trial court denied disclosure. No evidence existed to indicate to the trial court that the informant had done anything more than introduce Office Gonzales to the appellant. Only later in the trial when the appellant testified in his own behalf did the trial court become aware of appellant’s defense of entrapment or accommodation purchaser. The appellant testified that not only did the informant introduce him to the officer and was present during the first sale but that it was the informant who brought up the subject of purchasing marihuana. After his own testimony appellant did not renew his motion for disclosure. We perceive no error in the court’s denial of appellant’s motion. The trial court instructed the jury to acquit if the appellant had been entrapped or if he was found to be an accommodation purchaser.
While we have discussed appellant’s ground of error as if the person introducing him to the officer was an “informant,” it is clear from the facts that he was not such in the normal sense of that word. He was not an unnamed person giving information of violations of law to officers charged with enforcement of that law. In the present case the so-called “informant” had introduced the appellant and Officer Gonzales and was known to the appellant as Julian Gomez. Before the first sale, the appellant checked with his girlfriend about the background of Gomez. She had known the “informant” for six years. The only purpose in naming the “informant” would have been to get him to testify, and he appears to have been known and available to the appellant. For this further reason appellant’s ground of error is without merit.
In a supplemental brief, appellant raises an unassigned ground of error under Article 40.09, Section 13, V.A.C.C.P. He asserts that the classification of marihuana in the Narcotic Drug Regulation Act, Article 725b, V.A.P.C., is arbitrary and deprives him of equal protection under the United States and Texas Constitutions. We recently answered the complaint contrary to appellant’s contention in Sanders v. State, 482 S.W.2d 648 (1972).
No error is shown. The judgments are affirmed. |
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Russell Andrew BURROW, Appellant, v. The STATE of Texas, Appellee.
No. 44957.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 19, 1972.
Emmett Colvin, Jr., Dallas, Jack Gray, John L. Sullivan, Denton, for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for arson. The jury assessed the punishment at nine years.
The sufficiency of the evidence is challenged. The home of Doris Burrow (Smith at the time of trial) in Irving was burned. A few days before the fire she obtained the house as a result of a divorce decree entered against the appellant. She testified that some three or four weeks before the fire the appellant told her that she would never live in the house because he would blow it up or burn it down. Some two days before the fire, the appellant called her on the telephone and asked if she had enough insurance to bury her.
Rita Ann Hill, the daughter of the complaining witness and the appellant, testified that she and her seven-week-old son were living with her mother. On the evening of the fire she, her baby and mother had been to a friend’s residence to watch a color television program and returned home at approximately 11:00 p. m. They drove the car into the garage but not all the way because two bicycles were in the back part. There was nothing else in the garage except the bicycles. The complaining witness retired. Later, the daughter testified that she heard some noises as though someone were moving things around in the garage closet where gasoline was kept for the mower. She awakened her mother and told her that someone was in the garage. The complaining witness arose, went outside, then ran back into the house and shouted, “Rita Ann, get the baby, your daddy has set the house on fire.” Rita then observed that the garage was on fire and that it had spread to the house.
The complaining witness testified substantially the same as her daughter did including the testimony that the two bicycles were the only other things in the garage except the car and that the gasoline was kept in the garage closet. She also testified that she went outside, heard a big “swoosh”, observed an orange glow and saw the appellant crouched over, leaving the garage.
Don R. Magonahe, the assistant fire marshal for the City of Irving, testified that he arrived at the scene while the fire was in progress, remained there until the fire was put out, and then participated in the investigation as to its cause. He further testified that the sheetrock ceiling of the garage just in front of the automobile had fallen, indicating that there was a very hot fire in that area, because the sheetrock was of a type that should resist a normal fire for one hour, according to Underwriters Laboratory and NFPA tests and publications. The popping of chunks of concrete from the floor in front of the car was indicative of the fact that a flammable liquid had ignited on the floor. Cans were on the floor in front of the car, sitting upright. The manner of burning showed that the fire had started on the floor and burned upward. The glass in the headlights on the car had been “sucked out” rather than cracking, indicating a very hot fire in that area. The car battery was not discharged, as it would have been had there been a short in the car wiring. The front tires of the car were burned, the rear ones were not. The witness testified that, in his opinion, based on evidence at the scene and his experience, the fire was of incendiary origin as distinguished from accidental or spontaneous.
J. D. Mitchell, Fire Marshal for the City of Irving, testified that the fire alarm was turned in at 12:24 a. m. and that he found containers in the garage on the floor near the front car bumper. He could see where flammable liquids had been poured out or had been on the floor and had caused the terrific buildup of heat in the vicinity. He testified that where flammable liquids have been burned on such a floor, the concrete will flake up, peel back and will pop up. There was a definite area where the concrete had flaked off between the bumper and the closet door. He testified that one of the three containers had contained some three inches of flammable fuel when the fire started because of the different color after the fire. The other two were empty.
He testified that it was a cool misty night and that the fire was not caused by faulty wiring, lightning, gas heater or overheated car, and that he had eliminated every possible thing that could have caused the fire, other than one of incendiary origin.
He also testified that he saw the appellant at the police station at 7:00 o’clock Sunday night (some 17 hours after the fire) and that his hair and eyebrow were singed on the right side.
The appellant testified that when they were divorced his then wife, the complaining witness, was awarded the house that burned. He denied that he threatened to burn the house or had asked the complaining witness if she had enough insurance to bury her. He testified that he drove by her house that night while the fire was in progress but before the fire truck had arrived. He saw his former wife on the front porch and she was hysterical and started screaming that he had set the house on fire. He testified that he then left.
He explained his singed hair and eyebrow by stating that he was attempting to start another car by priming it with gasoline and the carburetor exploded causing the burn.
He and other witnesses testified that he was at a night club at the time the fire was started and could not have been at the house. The jury chose not to accept his defense.
We hold that the jury had sufficient evidence to conclude appellant’s guilt.
Next, complaint is made because the court permitted the fire marshal and his assistant to testify where the fire originated and that it was of incendiary origin. He relies upon Wimpling v. State, 171 Md. 362, 189 A. 248; People v. Saunders, 13 Cal.App. 743, 110 P. 825; Beneks v. State, 208 Ind. 317, 196 N.E. 73; Commonwealth v. Rodziewicz, 213 Mass. 68, 99 N.E, 574; People v. Grutz, 212 N.Y. 72, 105 N.E. 843.
The objections to the testimony of the fire marshal and the assistant were that the opinions sought were not in response to a hypothetical question; that it did not show what facts, if any, were to be considered by the witness in answering the question and that such an answer involved a rank conclusion based upon a limited investigation. There was no objection in the record upon which he now bases his complaint, hence, it is not properly before us for review. See Lawhon v. State, Tex.Cr.App., 429 S.W.2d 147, and 5 Tex.Jur.2d, Section 41, page 68.
Next, the appellant complains that the opinions of the experts who investigated the cause of the fire were based in part upon what others had told them and the court should not have permitted such testimony because it violated his right to confrontation. There is no showing what information they received from others which aided them in forming an opinion. The following statement is applicable:
“We do not think that the triers of the facts may properly be deprived of the opinion of an expert witness simply because in the course of an extensive investigation he may have received a bit of information from some unnamed person, the truth of which was not shown. We are unwilling to hold that the testimony of an expert witness, whose opinion is based largely on facts actually known to him or proved to be true, is automatically rendered valueless and inadmissible merely because in the course of his investigation he heard someone make a casual hearsay statement which perhaps had some slight part in the formation of his opinion.” Bryant v. Trinity Universal Insurance Company, 411 S.W.2d 945 (Tex.Civ.App.Dallas 1967, RNRE).
No error has been shown. The judgment is affirmed.
. The rule in Texas is apparently contrary to appellant’s contention. Experts may testify, after an investigation, that a fire was of incendiary origin. See Payne v. Hartford Fire Insurance Company, 409 S.W.2d 591 (Tex.Civ.App.1981, RNRE), and 88 A.L.R.2d 230.
|
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Tommy FLOURNOY, Appellant, v. The STATE of Texas, Appellee (two cases).
Nos. 45379, 45380.
Court of Criminal Appeals of Texas.
June 28, 1972.
E. W. Boedecker, Levelland, Sam E. Brown, Lubbock, for appellant.
Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
These are appeals from orders revoking probations.
On November 26, 1968, appellant pled guilty to the offense of forgery. Punishment was assessed at five years, but the imposition of sentence was suspended, and appellant was granted probation.
On January 29, 1970, appellant pled guilty to another offense of forgery. Again, punishment was assessed at five years and the imposition of sentence was suspended, and appellant was granted probation.
Among the conditions of probation, in both cases, was the requirement that appellant “commit no offense the punishment for which could be imprisonment in jail or the penitentiary.”
On June 11, 1971, the State filed motions to revoke appellant’s probations in both causes alleging in each case “that the terms and conditions of said probation have been violated as follows: That the Defendant has committed an offense for which he could be punished by imprisonment in the penitentiary, to-wit: Forgery.”
On July 22, 1971, the court entered judgments revoking probations in both causes, said judgments reciting the court “having heard evidence when the motion came on for consideration, has and does find that the Defendant has violated the terms and conditions of his probation.”
Appellant contends that the trial court abused its discretion in revoking the probations because of the State’s failure to allege in its motions to revoke that appellant, “at a time subsequent to his being placed on probation and during said probationary period,” violated a condition of his probation.
The record fails to reflect that there was ever any objection to the form of the motions to revoke nor do we find any suggestion to the court that the allegations failed to give appellant notice of what violation he was called upon to defend.
In Guinn v. State, 163 Tex.Cr.R. 181, 289 S.W.2d 583, this Court said, “Appellant, for the first time on appeal, contends that the state's motion to revoke the probation did not sufficiently allege how, when or where he had violated the law. The appellant, having failed to question the sufficiency of the motion in the trial court, is in no position to urge such contention on appeal.” See Blackshire v. State, Tex.Cr.App., 464 S.W.2d 108; Balli v. State, Tex.Cr.App., 460 S.W.2d 424.
We find no merit in appellant’s contention that the orders revoking proba-tions are fatally defective “in that it fails to make a finding to the effect that at a time subsequent to being granted probation and during the probationary period, the appellant committed the offense which forms the basis for revocation of appellant’s probation.” No findings were requested by appellant, hence no error. Blackshire v. State, supra; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165; Tate v. State, Tex.Cr.App., 365 S.W.2d 789. The order entered was sufficient. See Manning v. State, Tex.Cr.App., 412 S.W.2d 656.
Appellant urges that there is no evidence to the effect that after being granted probations he violated the terms and conditions of his probations.
There is no transcription of the court reporter’s notes in these cases, hence this Court does not have the benefit of what was shown to the trial judge as a basis for revocation of these probations. In Guinn v. State, supra, this Court said, “In the absence of a statement of facts, we are unable to pass upon appellant’s contention that the evidence was insufficient to authorize the court to revoke the probation, Lynch v. State, 159 Tex.Cr.R. 267, 263 S.W.2d 158.”
The appellant relies on Mason v. State, Tex.Cr.App., 438 S.W.2d 556 and Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422. A reading of these two cases reflects that transcriptions of the court reporter’s notes were before this Court.
Finding that the trial court did not abuse its discretion in revoking appellant’s proba-tions, the judgments are affirmed.
Opinion approved by the Court. |
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T. C. JONES, Appellant, v. The STATE of Texas, Appellee.
No. 44821.
Court of Criminal Appeals of Texas.
April 19, 1972.
Rehearing Denied July 19, 1972.
Walter E. Boyd, Jr., Houston (Court Appointed on Appeal), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Henry Ondeen, Asst. Dist. Atty., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of robbery by assault; punishment, enhanced under Article 62, Vernon’s Ann.P.C., life.
Appellant contends that reversible error was committed by the introduction into evidence of an extraneous offense.
The record reflects that after the appellant entered a plea of not guilty before the jury, and prior to any testimony being offered, a hearing was requested on appellant’s motion in limine. The jury was retired from the courtroom and the appellant moved the court not to allow the state to produce evidence of any extraneous offense. The court then inquired of the prosecutor if he intended to offer such testimony. The prosecutor replied that he intended to offer evidence of an offense committed “some seven days later.” The trial court, relying on Cox v. State, 170 Tex.Cr.R. 128, 338 S.W.2d 711, overruled the motion in limine and the appellant excepted to the ruling.
The evidence shows that on August 17, 1970, the appellant and two companions committed a robbery at Frank’s Superette, a grocery store in Houston. For the commission of this offense the appellant was tried and convicted in the instant case.
The evidence also shows that on August 24, 1970, the appellant and two companions committed a robbery at Brennan’s Food Center in Houston.
The appellant was positively identified as one of the persons committing the robbery at both places and the record reflects that he had not been arrested and was not on bond for the primary offense at the time of the commission of the extraneous offense. The robberies were similar in nature and appellant was arrested immediately following the second robbery.
No evidence was offered on behalf of the defense.
The court charged the jury that their consideration of such extraneous offense was limited to “determining the intent and the identity” of the appellant.
As heretofore pointed out, the trial court overruled appellant’s motion in limine, relying on Cox v. State, supra. Possibly Cox might be distinguished from the instant case in that therein the defendant testified in his own behalf and denied his presence at the place of the commission of the primary offense, whereas in the instant case the appellant offered no defense testimony. However, we feel constrained to re-evaluate the reasoning in Cox v. State, supra, since it seems to be more and more used as authority for showing independent crimes that tend to shed no light on any disputed issue.
True, flight is a circumstance from which an inference of guilt may be drawn, e. g. Ysa s aga v. State, 444 S.W.2d 305; Crenshaw v. State, Tex.Cr.App., 389 S.W.2d 676. Still, flight should show some act or instance of running away. The fact that appellant was in Houston within a seven day period of time does not indicate flight. There must be some circumstance to show that the accused is moving out or running, e. g. Woods v. State, 480 S.W.2d 664; Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82.
In Woods v. State, supra, a second robbery was committed approximately one hour and a half after the primary robbery. Therein, an automobile was taken at the second robbery which was used by the defendant and his two companions to go to Casa Grande, Arizona. This court held that the extraneous offense of taking the automobile and fleeing the state was admissible to show flight.
In Israel v. State, supra, the defendant was convicted for felony theft of an automobile. The next day after the commission of the offense he wrecked the automobile some twelve miles from the location of the theft and stole another automobile and drove to New Mexico where he abandoned the second automobile. This court held that the taking of the second automobile was admissible, especially to show flight.
This court has consistently held the general rule to be that an accused is entitled to be tried on the accusation made in the state’s pleading and not on some collateral crime, or for being a criminal generally, e. g. Powell v. State, 478 S.W.2d 95; Chandler v. State, 417 S.W.2d 68; Haiti v. State, 416 S.W.2d 824; Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836.
Exceptions to the general rule (other than flight as heretofore discussed) are set out in 23 Tex.Jur.2d, Evidence, Sec. 195, at p. 300, where it is written:
“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of the person or crime, intent, motive, scienter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him.”
See also, Bryant v. State, Tex.Cr.App., 471 S.W.2d 66; Owens v. State, Tex.Cr.App., 450 S.W.2d 324.
None of such exceptions is evident in the instant case. Even though the trial court limited the jury’s consideration to determining intent and identity, clearly the intent was established by the appellant’s brandishing a pistol and committing the robbery, and identity was positively established by four eye witnesses. Such testimony was undisputed. No defensive theory was urged.
We conclude that reversible error was committed by the admission of the extraneous offense. To the extent that Cox v. State, 170 Tex.Cr.R. 128, 338 S.W.2d 711, and other cases are inconsistent with our holding herein, they are overruled.
In view of our disposition of the case on the issue ruled on herein, other grounds of error will not be discussed.
For the reason stated, the judgment is reversed and the cause remanded. |
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Leonard DEAN, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45012.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 19, 1972.
Melvyn Carson Bruder, Dallas (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., Robert T. Bas-kett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for robbery with firearms. Punishment was assessed by the jury at fifty years.
The sufficiency of the evidence is not challenged.
Appellant contends that the court erred in overruling appellant’s motion to exclude evidence of his prior conviction for which he had received a probated sentence.
Art. 37.07, Sec. 3(a), Vernon’s Ann.C. C.P. (1967), providing that prior criminal record of the defendant may be offered at the hearing on punishment, defines prior criminal record to mean a “final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial. . . .” Taylor v. State, Tex.Cr.App., 470 S.W.2d 663; Macias v. State, Tex.Cr.App., 451 S.W.2d 489; Glenn v. State, Tex.Cr.App., 442 S.W.2d 360. No error is shown.
Appellant contends that the court deprived appellant of a fair trial by “prej-udicially limiting the scope of argument at the State’s insistence.”
The record reflects that the following occurred during argument of appellant’s counsel:
“The State is going to ask you to come back with some enormous number of years. The most heinous crime that ever occurred in Dallas County and they will want life or 99 years, 50 years, whatever it is. It is a lifetime for this boy—
“MR. ORMESHER (State’s counsel): I object to that, that’s a misquotation of the law—
“MR. DAY: I’m not quoting the law. I am just stating what I anticipate the State will ask.
“THE COURT: I sustain the objection.
“MR. DAY: Exception, Your Honor. In any event, they will ask you to put this man away because he is not worth anything any more, just, you know, throw him back in the prison. There is no hope for him. He has showed you that there was hope for him when he was down here on probation and he abided by it. He did everything the Court told him to and if anybody was hurt in this robbery and, in fact, you say he did it, so, I must speak in those terms because of your decision then, he was the one that was injured physically. He was the one that had gashes in his head. Nobody else was injured, and, of course, that’s what we have talked about, the reason for the wide range of punishment for robbery. If somebody had been shot, killed, injured badly, yes, on up into the upper range of years, but this was not true and it would be a miscarriage of justice to apply to this set of facts a long number of years for this boy. I don’t believe you believe it is justified. I don’t really believe that everyone is that convinced about the whole thing and you can temper that now with a decision of a lesser number of years.
“MR. TOKOLY: Your Honor, we object to that line of argument. The jury has found him guilty as he is charged. They don’t have to compromise anything.
“THE COURT: I sustain the objection.”
While appellant complains of the court limiting the scope of his argument, he fails to show what he would have told the jury but for the court’s rulings. See 5 Tex.Jur. 2d, § 265. The record fails to show that appellant was injured thereby.
The judgment is affirmed.
Opinion approved by the Court. |
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Domingo Gonzales VALDEZ, Appellant, v. The STATE of Texas, Appellee.
No. 45019.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 19, 1972.
W. John Allison, Jr., Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: heroin. Punishment was assessed by the jury at life imprisonment.
Appellant contends that the instant case should be reversed because: (1) the evidence is insufficient to support the conviction; (2) the conviction is the product of an illegal search and seizure; and (3) the trial court committed reversible error in admitting into evidence State’s Exhibit Number 13, a “tie-off rag” found on the arm of one of the persons arrested with appellant.
Acting upon the tip of an informant, officers of the Dallas Police Department established a surveillance on a dwelling located in that city. During the several days that this surveillance was maintained, officers observed appellant and known narcotics users enter and leave the dwelling.
On December 30, 1969, at 7:00 P.M., Officer D. L. Hamer, Officer B. T. Zapata, and other officers of the Narcotics Section of the Dallas Police Department, executed a search warrant at the dwelling. Officer Zapata went to the door and knocked. Looking through a small opening in the curtains on the window of the door, he observed appellant leave the kitchen and walk toward the front door. Officer Zapata identified himself as Rafael Valecio, who is a former brother-in-law of the appellant; and when appellant opened the door, the officers immediately entered.
The officers walked through the living room, where several children were watching television, and proceeded to the kitchen. There they observed appellant’s brother and sister-in-law “capping” heroin into gelatin capsules. They then went to the bedroom, found no one, and proceeded to the bathroom. They found that the bathroom door was locked. Kicking it open, they saw Kay Bailey, Frances Hernandez, and David Martinez. Bailey was standing by the bathtub; Hernandez was kneeling on the floor behind the door; and Martinez was kneeling at the commode with a “tie-off rag” on his arm and a syringe in his hand. In addition to the three persons, the officers found heroin capsules and narcotics paraphernalia in the bathroom.
No narcotics were found on appellant’s person, but needle marks were observed on his arm. The court charged the jury on the law of principals.
The test to be applied in determining the sufficiency of the evidence to support a conviction for th'e violation of Article 725b, Vernon’s Ann.P.C., was stated by this court in Rodriguez v. State, 164 Tex.Cr.R. 641, 301 S.W.2d 921:
“We must accept the findings of the jury on conflicting testimony and determine whether or not there is evidence from which they were warranted in finding beyond a reasonable doubt that the defendant committed the offense, as charged.”
Possession need not be exclusive, and evidence which shows that the accused jointly possessed the narcotic with another is sufficient. E. g. Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713; Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763. However, proof of mere presence at a place where narcotics are being used does not, in itself, justify a finding of joint possession. E. g. Kinkle v. State, Tex.Cr.App., 474 S.W.2d 704; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915; Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56. The state has the burden of proving: (1) that the accused exercised actual care, control, and management over the contraband, and (2) that he knew the object which he possessed was contraband. Ramos v. State, Tex.Cr.App., 478 S.W.2d 102; Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541. Therefore, the evidence must affirmatively link the accused to the contraband. Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.
In the instant case the state showed that: (1) the narcotics in the kitchen were in open view; (2) the appellant left the kitchen to answer the knock on the front door; (3) he was a frequent visitor to the residence; and (4) appellant had needle marks on his arm.
We find that this evidence sufficiently links appellant to the heroin discovered in the kitchen to present a case for jury determination. See Yantis v. State, Tex.Cr.App., 476 S.W.2d 24; Haynes v. State, supra; Martinez v. State, Tex.Cr.App., 473 S.W.2d 520; Valdez v. State, Tex.Cr.App., 472 S.W.2d 754; Daltwas v. State, Tex.Cr.App., 375 S.W.2d 732. The evidence is sufficient to support the conviction.
With regard to appellant’s challenge to the search, we note that the search warrant and affidavit are not included in the record. Hence, nothing is presented for our review. Satillan v. State, Tex.Cr.App., 470 S.W.2d 677.
Appellant’s contention with regard to the admissibility of State’s Exhibit No. 13, the “tie-off rag” found on Martinez, is based on his allegation “that the state failed to show a proper chain of custody or chain of evidence as it pertained to the care, custody, and control” of this exhibit. The record reflects that Officer Hamer identified such exhibit by the initials which he had placed on it at the time it was seized. No error is shown.
Appellant’s pro se briefs have been reviewed and found to be without merit.
There being no reversible error, the judgment is affirmed.
. The fact that a person accused of the possession of an injectable narcotic has needle marks on his arm is relevant to proving his guilt. See Gomez v. State, Tex.Cr.App., 470 S.W.2d 871; Feather v. State, 169 Tex.Cr.R. 834, 333 S.W.2d 851; State v. Williams, 260 La. 1167, 258 So.2d 539 (1972). However, such evidence may not be admissible in all types of criminal cases. Powell v. State, Tex.Cr.App., 478 S.W.2d 95. It should be further noted that needle marks on an accused’s arm are of negligible, if any, probative value in cases of marihuana possession. E. g. Kinkle v. State, Tex.Cr.App., 474 S.W.2d 764; Reid v. State, Tex.Cr.App., 474 S.W.26 702.
|
sw2d_481/html/0907-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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John Frank BUTLER et al., Appellants, v. The STATE of Texas, Appellee. James Howard BROWN et al., Appellants, v. The STATE of Texas, Appellee.
Nos. 44881-41884, 44877-44880.
Court of Criminal Appeals of Texas.
June 28, 1972.
Tom Moore, Jr., Dunnam, Dunnam & Dunnam by Vance Dunnam, Waco, for appellants.
Martin D. Eichberger, Dist. Atty., Frank M. Fitzpatrick, Jr., and Raymond C. Mat-kin, Waco, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
These are appeals from judgments forfeiting bail bonds.
Appellants and the State have joined together in motions to this Court praying that these causes be in all things reversed and remanded to the trial court for the purpose of entering compromise settlements and agreements in accordance with the settlements agreed upon by the parties hereto.
Article 44.44, Vernon’s Ann.C.C.P., provides that where an appeal is taken in bond forfeiture cases such “proceedings shall be regulated by the same rules that govern civil actions where an appeal is taken or a writ of error sued out.” See Reeves v. State, Tex.Cr.App., 465 S.W.2d 757; Aguirre v. State, Tex.Cr.App., 399 S.W.2d 805.
Where the parties to a cause (civil) on appeal, through a joint motion, ask that the cause be reversed for the purpose of entering an agreed judgment and settlement of the cause, such judgment of reversal will be entered. See Ruiz v. Travelers Insurance Co., Tex.Civ.App., 405 S.W.2d 425; Castro v. Highlands Insurance Co., Tex. Civ.App., 401 S.W.2d 689; Mickelson v. Mickelson, Tex.Civ.App., 384 S.W.2d 230; Eichelberger v. Orr, Tex.Civ.App., 392 S.W.2d 474 (reversed for settlement, prior opinion withdrawn) ; Southern Underwriters v. Evans, Tex.Civ.App., 112 S.W.2d 542; and St. Louis, B. & M. Railway Co. v. Texas Mexican Railway Co., Tex.Civ.App., 212 S.W.2d 502. See also Rule 442, Vernon’s Annotated Texas Rules of Civil Procedure, providing for issuance of mandate by agreement of parties.
The judgments are reversed and the causes remanded to the 54th Judicial District Court of McLennan County, and the clerk is directed to issue mandates immediately upon the announcement of this decision.
Opinion approved by the Court. |
sw2d_481/html/0908-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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WILSON’S PHARMACY, INC., et al., Appellants, v. The BEHRENS DRUG COMPANY, Appellee.
No. 5135.
Court of Civil Appeals of Texas, Waco.
May 31, 1972.
Rehearing Denied June 22, 1972.
George D. Neal, Houston, for appellants.
Ñaman, Howell, Smith & Chase, George Chase, Waco, for appellee.
HALL, Justice.
This is a venue case. The plaintiff-ap-pellee, The Behrens Drug Company, brought the suit in McLennan County on a sworn open account for an alleged balance due of $85,247.69, for merchandise sold. The defendants-appellants, Leslie King and James E, Wilson, Jr,, each individually and dba San Marcos Drug, and Wilson Pharmacy, Inc., filed pleas of privilege to be sued in Harris County. The plaintiff controverted the pleas of privilege, contending that Subd. 5 of Article 1995, Vernon’s Texas Civil Statutes, permitted venue in the county of suit. After a hearing without a jury, the trial court overruled the pleas of privilege. We affirm.
Subd. 5 of the venue statute provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.
The defendant King has not appealed, and the judgment as to him is final. However, the other two defendants contend that as to them the trial court’s ruling should be set aside for the following reasons: (1) that the plaintiff did not allege a written contract in its petition, and that this basis for venue cannot be pleaded for the first time in plaintiff’s controverting plea; (2) that the written instruments relied upon by plaintiff are not "contracts in writing” within the meaning of subd. 5 of article 1995; and (3) that there is no pleading by plaintiff in its petition or controverting plea, and no proof, that the person who executed the purported written contracts was authorized by the defendants to do so.
Plaintiff alleged in its petition that on various dates between May 31, 1971, and August 16, 1971, as shown on an exhibit attached to the pleading, plaintiff “at the special instance and request of the defendants, sold and delivered to the defendant buyers, in the regular course of business,” merchandise in the amounts reflected by the exhibit; that “the defendants then and there agreed to pay to the plaintiff on demand the amounts and charges” shown on the exhibit; and that the account balance of $85,247.69 is past due and unpaid after request by plaintiff for payment.
None of the defendants filed any exceptions to the petition.
The essential facts of plaintiff’s claim, including an agreement by the defendants to pay for the goods delivered, were alleged in its petition; and we hold that, at least in the absence of any exception to the petition, plaintiff was entitled to elaborate the claim in its controverting affidavit to establish the necessary venue facts. North Texas Tank Company v. Pittman, (Tex.Civ.App., 1956, no writ hist.) 290 S.W.2d 724; 1 McDonald, Texas Civil Practice, (1965 rev.), p. 595, Venue, Sec. 4.49.
There is evidence that on July 15, 1971, Ross J. Zennonte executed a purchase order directed to the plaintiff for delivery of merchandise to San Marcos Drug; that, on August 14, 1971, Zennonte executed another purchase order to plaintiffs for delivery of goods to Wilson’s Discount Pharmacy at Wharton, Texas, which is one of several stores owned by the defendant Wilson’s Pharmacy, Inc.; that at the time of the orders Zennonte was a pharmacist-employee, and sometimes store manager, for both San Marcos Drug and Wilson Pharmacy, Inc.; that both purchase orders contained the following printed statement immediately preceding Zen-nonte’s signatures: “Please ship the articles on this order on terms agreed on between us. This as well as all previous and all subsequent purchases is payable at your office in Waco, Texas, with interest after maturity”; that the execution of purchase orders such as these by defendants’ employees was an established course of dealing between plaintiff and defendants; that Wilson and King are partners in the ownership and operation of San Marcos Drug; and that the balance of defendants’ account is $85,247.69, and past due.
In our opinion, the purchase orders constitute “contracts in writing” within the meaning of Subd. 5 of the venue statute. Beall v. Hardwicke-Etter Company, (Tex.Civ.App., 1970, writ dism.) 460 S.W.2d 516, 519. They require the defendants to perform an obligation in Waco, Texas, which we, and the trial court, judicially know is in McLennan County. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521, 523 (1961).
In its controverting affidavit, the plaintiff referred to the cause of action alleged in its petition and then expressly pleaded that “said sale was made pursuant to the terms of a written contract entered into with the defendants, wherein the defendants agreed that ‘this as well as all previous and all subsequent purchases is payable at your office in Waco, Texas, with interest after maturity.’ ”
The defendants made no exceptions to the controverting plea.
We have carefully studied the entire record and, without further detailing of the evidence in this opinion, we hold that it is legally sufficient to support the implied finding of the trial court that Zennonte was authorized by defendants to execute the purchase orders. It is our further view that the controverting plea, absent any exception thereto, sufficiently pleads the finding.
All of defendants’ points and contentions have been duly considered and found to be without merit. They are overruled.
The judgment is affirmed. |
sw2d_481/html/0910-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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J. W. HELTON et ux., Appellants, v. Honorable Tom TODD, Appellee.
No. 17317.
Court of Civil Appeals of Texas, Fort Worth.
May 26, 1972.
Rehearing Denied June 23, 1972.
Llewellyn & Kerr, Dallas, L. A. Nelson, Denton, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, and Atwood McDonald, Fort Worth, for appellants.
John Lawhon, Coleman, Whitten & Philips, and Michael J. Whitten, Denton, for appellee.
OPINION
LANGDON, Justice.
This appeal is from a judgment denying issuance of a writ of- mandamus.
When more than 200 and less than 10,000 inhabitants live together in a collection of inhabited homes in a close proximity as a town or village and desire to incorporate such town or village they may do so by complying with the terms and provisions of Articles 1133 et seq., Vernon’s Ann.Civ.St. These statutes provide in detail the procedure to be followed.
The appellants, J. W. Helton and wife, Geneva Helton, and others (more than 20 persons) in full compliance with the above statutes filed their petition requesting Tom Todd, County Judge of Denton County, to order an election for the purpose of incorporating an area situated in Denton County, properly described, under the name of Corral City. The petition, accompanied by a list of the names of 207 purported residents of Corral City was presented to the County Judge on August 20, 1971. On the same date the County Judge, finding that all of the statutory requirements had been fully complied with, made and entered his order calling for said election and set September 4, 1971, as the date for holding such. Notice of said election was duly posted on August 23, 1971.
Thereafter on August 30, 1971, the County Judge entered an order purportedly revoking his order of August 20, 1971, and cancelling the election set for September 4, 1971.
The August 30, 1971, order recited that the respondent had found on the basis of satisfactory proof which had been brought to his attention that Corral City did not contain 207 inhabitants or more as was represented to him in the application of August 20, 1971.
The election was held on September 4, 1971, pursuant to the court’s original order of August 20, 1971, and in full compliance with the statutes. The returns from the election were tendered to the County Judge on September 10, 1971, for his acceptance, canvassing of the votes, and for a declaration of the results of the election. On the same date the (respondent) County Judge entered an order by which he declined to canvass the votes and to declare the results of the election.
At this point the appellants, alleging that the action of the County Judge in disregarding such election was arbitrary and without legal cause or reason, filed their writ of mandamus. Trial was to the court on stipulations without a jury.
The appeal is based upon eleven points of error which attack the findings of fact and conclusions of law which were made and filed by the District Court Judge.
The proceeding in the District Court was not appellate in nature to decide whether or not the evidence before the County Judge supported his August 30, 1971, order nor was the court’s judgment based upon any original findings concerning the number of inhabitants in the area in question. A motion in limine granted by the court precluded the offer of any testimony as to this matter. There was no evidence before the District Court on the number of inhabitants. The cause before the District Court was not a quo warranto proceeding. No question of fraud was alleged or shown.
The case presented to the District Court and now to this Court on appeal involves the single question of whether or not the County Judge of Denton County had any lawful authority to entertain a proceeding in the nature of a motion for a new trial or a motion for rehearing which would afford to him the right to rescind the order he signed and entered on August 20, 1971, calling for and setting the date for an election.
We find and hold that the County Judge had no authority under the statutes to revoke the election order of August 20, 1971. The order of August 20, 1971, which set in motion the election process was final and conclusive. Arberry v. Beavers, 6 Tex. 457 (1851); Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961), and Hills and Dales v. Reeves, 459 S.W.2d 672 (San Antonio, Tex.Civ.App., 1970, writ dism.).
The appellee relies primarily upon the case of Beyer v. Templeton, 208 S.W.2d 692 (Dallas, Tex.Civ.App., 1947, affirmed 147 Tex. 94, 212 S.W.2d 134, 1948). Other cases cited by the appellee involve quo warranto proceedings. In our opinion none of the cases cited by the appellee are applicable to the facts of this case.
The judgment of the District Court is reversed and judgment here rendered for the appellants awarding to them the relief they sought in the trial court. |
sw2d_481/html/0911-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Norma B. SANCHEZ et al., Appellants, v. Earl Glynn BILLINGS, Appellee.
No. 606.
Court of Civil Appeals of Texas, Houston (14th Dist.).
May 31, 1972.
Rehearing Denied June 21, 1972.
Warner F. Brock, John Marshall, Brock & Williams, Houston, for appellants.
Russell H. McMains, Royce R. Till, Fulbright, Crooker & Jaworski, Houston, for appellee.
BARRON, Justice.
This is a wrongful death action brought by the surviving wife, parents and three children of Florentino Rivera Sanchez. The decedent died as a result of burns and injuries suffered in a May 2, 1967 collision between his pickup truck and an oil company tank truck driven by the defendant. On the basis of a jury verdict judgment was rendered that plaintiffs take nothing and plaintiffs now appeal to this Court seeking to overturn the judgment below.
At approximately 9:00 o’clock on the evening of May 2, 1967, the decedent was driving in a southerly direction on East Houston Road, a two lane roadway with asphalt topping. Appellee Billings was proceeding in a northerly direction on the same road enroute to delivering a load of 141 barrels of oil. The two vehicles approached one another at the point where Linda Vista Street branches off from East Houston Road in an easterly direction. As decedent was engaged in turning onto Linda Vista across the path of appellee’s trailer-tractor rig, appellee’s truck struck decedent’s pickup truck in the area of the right door. Following impact the force of the larger truck carried the collided vehicles into a service station on the eastern side of East Houston Road. Decedent’s pickup truck, propelled by the larger tank truck, knocked over two gasoline pumps and came to rest pinned against a pole supporting the canopy of the service station. A fire immediately broke out on the driver’s side of decedent’s truck and, before bystanders could pull decedent from the truck, he was critically burned. Death followed two days later.
The legal posted speed limit on East Houston Road at the junction with Linda Vista and for half a mile south of that point is thirty-five miles per hour. In response to special issues the jury found that just prior to the time of collision appellee was traveling in excess of thirty-five miles per hour but failed to find this constituted negligence as contemplated by Tex.Rev. Civ.Stat.Ann. art. 6701d, sec. 171(b) (1963). The jury, by conditional instruction, failed to answer the proximate cause issue. No objection was made to the instruction. The jury did find that just prior to the collision appellee was traveling in excess of the speed at which a person of ordinary prudence would have been driving. But the jury failed to find that such negligence was the proximate cause of the collision. Instead, they found that decedent turned in front of appellee at a time when appellee’s truck was approaching so closely as to constitute an immediate hazard. This act by decedent they found to be the proximate cause of the accident.
Appellants now question (1) the exclusion of certain proffered evidence, (2) the responses to special issues regarding statutory and common law negligence, proximate cause, failure to maintain a proper lookout, timely application of brakes and failure to turn to the left, (3) the overruling of objections to the submission of special issues inquiring as to contributory negligence, (4) the jury’s alleged failure to use the microscope in evidence, and (5) the exclusion of testimony as to “normal” turning distances and speeds. Each point of error alleging that legally insufficient evidence exists to support what is in fact a failure to find, not a jury finding, will be considered an allegation that a contrary finding was required as a matter of law. Points claiming that what is in fact a failure to find is against the great weight and preponderance of the evidence will be treated as a contention that the jury’s response is in disregard of the great preponderance of the evidence. See, e. g., Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 1 (1960). Despite the form of some points of error, all request only a remand for new trial. None ask for rendition of judgment.
Appellants first complain that the trial court was in error when it excluded habit evidence of appellee’s nicknames “Speedy” and “Lightning” and prior speeding violations offered to prove that just prior to the May 2, 1967 accident appellee was speeding to such an excess that his speeding constituted the sole proximate cause of the collision. We think the court’s action represents no error. Where, as here, an accident is observed by an eyewitness, habit evidence is not admissible. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956). And see Buchanan v. Central Freight Lines, Inc., 462 S.W.2d 391 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.) in which evidence of a party’s past driving record was properly excluded. Moreover, such evidence could at best suggest only that appellee was speeding on the occasion, an element already established. It could in no way indicate by what amount appellee was exceeding the thirty-five mile per hour limit. The evidence in question thus is of minimal probative value in establishing foreseeability and causation, and its exclusion, if error, was harmless.
Appellants’ contention that driving in excess of the thirty-five miles per hour speed limit constituted negligence per se flies directly in the face of Tex.Rev. Civ.Stat.Ann. art. 6701d, sec. 171(b) (1963). That statute expressly requires a plaintiff to prove negligence and proximate cause in a case where defendant has exceeded the legal maximum speed. Nor do we think that the jury’s failure to find ap-pellee’s driving , in excess of the legal posted limit to be negligence is in disregard of the great preponderance of the evidence. Appellee himself placed his speed immediately prior to the accident at thirty-five to forty miles per hour, although he pointed out that this was an estimate and he could have been traveling at a lesser rate. He further testified that his tractor had five gears with three ranges in each gear — low, intermediate and high. Appellee unequivocally stated that he did not reach fifth high (the highest possible setting) before the collision. His best recollection at three separate points in the record was that he had reached only fourth intermediate gear before the accident occurred.
Appellants introduced two expert witnesses. Both testified regarding readings from a tachograph in appellee’s truck. This instrument records the revolutions per minute of the engine at all times. Richard L. Madison, an engineer, testified that from the tachograph chart markings appel-lee apparently eased off the accelerator as he approached the intersection. This decrease in r.p.m.’s is distinct from the sudden decrease evidencing the abrupt move of appellee’s foot from the accelerator to the brake pedal shortly before impact. Moreover, while Captain Charles H. Ruble, a member of the San Antonio Police Department, calculated appellee’s speed prior to collision as “in excess of 40 miles an hour”, Madison testified that a truck such as appellee’s driving in fourth intermediate gear at the r.p.m. registered on the tachograph just prior to the accident would have been traveling at thirty-one miles per hour. The only other material evidence pertaining to appellee’s speed is the affirmative reply in the deposition of the eye-witness John Ray Cutbirth to a question asking whether appellee was traveling “in excess of 35 miles an hour”. From the above it is clear that the record allowed the jury to decline to find appellee to be negligent in exceeding the statutory speed limit. Any evidence to the contrary is of little value under the circumstances.
In answer to special issues 4 and 5 the jury found appellee’s speeding constituted negligence under the common law theory, but they failed to find that such negligence was a proximate cause of the collision. Contrary to appellants’ assertion, a finding of negligence does not by itself necessarily compel a finding of proximate cause. And, in the instant case, if the jury was entitled to find the decedent contribu-torily negligent, then the failure to find proximate cause is immaterial, even should it be unreasonable.
Whether the trial court erred in overruling appellants’ objections to the submission of special issues 15, 16, 19 and 20 regarding contributory negligence is now immaterial inasmuch as the jury either answered them favorably to appellants or left them unanswered. In addition, we think that the jury’s findings of contributory negligence and proximate cause of the fatal collision find adequate factual support in the record. Appellants’ position is founded upon the testimony of Captain Ruble, much of it in response to hypothetical questions assuming disputable data. The jury was the proper judge of Captain Ruble’s credibility, and they were entitled to discount it if they so chose. From the exhibits it is apparent that the decedent cut his proposed turn onto Linda Vista sharply. Appellee testified that his truck was closer to the intersection than was the decedent’s as they approached one another. Further, the location of the point of impact in the intersection and the location of the point of contact on the decedent’s truck reveal that, contrary to appellants’ contention, the pickup truck was but midway through its turn when struck.
Appellee’s statement to the police and his testimony concur in placing the decedent’s truck no more than two car lengths (approximately forty feet) from appellee’s truck when appellee first saw the decedent’s pickup truck. Appellee repeatedly testified that the pickup then suddenly-turned in front of his tank truck approximately eighteen feet away. Evidence placing the speed of decedent’s truck between fifteen and twenty-five miles per hour just prior to impact is not necessarily contradictory to testimony that decedent suddenly cut across appellee’s lane. Appellee’s theory of the accident is that decedent turned across appellee’s path at very close range, not at high speed, but unexpectedly. The record is devoid of evidence to demonstrate that the facts were otherwise.
We have carefully examined appellants’ points of error challenging the jury’s responses to special issues regarding maintenance of a sufficient lookout, timely application of the brakes and failure to turn to the left. In each instance the jury’s failure to find favorably to appellants was not in disregard of the great preponderance of the evidence, and these points of error are overruled.
Appellants complain that the jury was “unable to use the microscope received into evidence”. That is sheer speculation. As appellants concede, the jury, after first having requested assistance in operating the miscroscope, informed the trial court that no assistance was needed. That could indicate that the microscope was in fact used. Jury responses unfavorable to appellants do not necessarily demonstrate that the microscope was not employed. Even so, the jury was under no obligation to use the microscope in examining the tachograph charts in evidence.
The last issue raised is the propriety of the trial court’s exclusion of assorted testimony by an expert witness. As for the evidentiary items now complained of, there appears no abuse of the trial court’s discretion in excluding any of them. For example, testimony regarding a normal turning speed was immaterial to the present suit. The speed and turning path of decedent’s truck was already established by direct testimony. For the same reason testimony as to traces left by abrupt high speed turns was immaterial. Moreover, counsel’s question regarding the significance of no finding of scuff marks was withdrawn following the trial court’s sustaining an objection to it and thus any error in the court’s action is now harmless. And the trial court’s exclusion of testimony regarding swerve marks was limited to the unsolicited testimony volunteered by the witness that accident investigators routinely inspect an accident scene for swerve or scuff marks. Further, counsel’s question inquiring as to whether decedent’s truck was in a “normal” turning position asks of an expert what is not subject to expert testimony. As for turning experiments conducted by the witness at the fatal intersection, the record is devoid of any evidence to indicate that the conditions under which the witness conducted the experiments were substantially the same as those attending the collision.
Affirmed. |
sw2d_481/html/0916-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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MOBILE COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. Ronald R. ROMACK, Appellee.
No. 639.
Court of Civil Appeals of Texas, Houston (14th Dist.).
June 7, 1972.
Rehearing Denied June 28, 1972.
James R. Roos, Painter & Painter, Houston, for appellant.
Ronald R. Romack, Houston, for appel-lee.
BARRON, Justice.
This is a venue suit. The plaintiff, Ronald R. Romack, filed suit against Mobile County Mutual Insurance Company, alleged to be an insurance corporation. While the pleadings are general in nature, with a copy of the alleged contract of insurance attached as an exhibit, they are sufficient to state a cause of action. Plaintiff alleged generally that he had purchased a policy of insurance from defendant, and had paid for same, he identified the policy by number, and alleged further that his car was stolen, that proper proofs and notices were given and demands made of the insurance company for payment under the policy, and that the defendant had refused to pay the claim. Defendant filed a plea of privilege to be sued in Dallas County, Texas, its alleged county of domicile. No special matters were there pleaded or denied. The plea was duly and timely controverted. The trial court on a hearing entered its order overruling defendant’s plea of privilege. The defendant insurance company has appealed.
The statement of facts, excluding formal portions and certificates, consists of three pages. The trial court stated that he was calling the case of Romack v. Mobile County Mutual Insurance Company. Counsel for both parties, plaintiff and defendant, announced ready in open court. Only the plaintiff, Romack, testified. He testified that his action was to recover money from “an insurance policy” for theft of his automobile; that he purchased the automobile in Harris County; that he purchased the policy of insurance in Harris County and paid the premiums in Houston; that the theft of his vehicle occurred in Harris County; that he dealt with various agents who represented the defendant and made his claims in Harris County; and that the insurance agency from whom he obtained the policy and to whom he paid the premiums was John Pirkle Insurance Agency of Houston, Harris County, Texas. The plaintiff testified that at all material times he was a resident of Harris County, Texas. The policy of insurance was not introduced into evidence, and the name of the defendant was never shown in the record with the exception of the court’s announcement of the style of the case to be heard as mentioned above. The defendant was referred to as “the defendant” throughout the hearing. The plea of privilege, however, identified “the defendant”.
Defendant-appellant has brought forward five points of error each dealing with various subdivisions of Tex.Rev.Civ.Stat. Ann. art. 1995 (1955) which might be applicable, such as Subdivisions 5, 23, 27, 28 and one point of error stating that no exception applied to any phase of Art. 1995.
The venue facts necessary under Subdivision 23, Art. 1995 are (1) that appellant is a corporation; (2) that appellee has a cause of action against appellant and has proved it; (3) that said cause of action, or a part thereof, arose in Harris County, Texas. See Appell Petroleum Corp. v. G. W. Townsend Lease Serv., 375 S.W.2d 547, 548 (Tex.Civ.App.—Corpus Christi 1964), no writ); Corporation R, Inc. v. Gary Greene Co., 476 S.W.2d 921, 923 (Tex.Civ.App.—Houston (14th Dist.) 1972, no writ).
Appellee, having alleged that appellant was a corporation, was not required to make specific proof of that venue fact by reason of appellant’s admission of such fact in its plea of privilege, and its failure to make proper denial of appellee’s allegation. See Rules 52 and 93(g), Tex.R.Civ. P.; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Corporation R., Inc., supra, 476 S.W.2d p. 923.
However, the policy of insurance was never introduced into evidence, and we have no way of knowing the terms of the policy referred to or its proper application. Stonewall Insurance Company v. Donald, 475 S.W.2d 876, 879 (Tex.Civ. App.—Fort Worth 1972, no writ indicated). We believe that appellant in its brief has intended to and has argued and urged the point that the policy of insurance was not in evidence, and therefore that proper proof of a cause of action is lacking under subdivision 23 and that there is no writing shown under subdivision 5. See Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404 (Tex.Sup.1965); Hardware Dealers’ Mutual Fire Ins. Co. v. King, 426 S.W.2d 215, 221 (Tex.Sup.1968), citing Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943).
The evidence indicates that the appellant is a Texas corporation and consequently subdivision 27 is inapplicable.
There is no evidence in the record that this appellant is a fire, marine or inland insurance company under subdivision 28. On the contrary, the only indication is that the vehicle was insured against theft. See Casares v. Pioneer Casualty Company, 366 S.W.2d 652, 654 (Tex.Civ.App.—Amarillo 1963, no writ).
We believe it is clear that the judgment below is erroneous and that ap-pellee’s case has not been fully developed. In view of indicated and available proof not introduced into evidence, this case is reversed and remanded to the trial court for a new trial. Such was not necessarily so in Renfroe v. Ramsey, 477 S.W.2d 648 (Tex.Civ.App.-Houston (14th Dist.) 1972, no writ). |
sw2d_481/html/0919-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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TEXAS WESTERN FINANCIAL CORPORATION, Appellant, v. IDEAL BUILDERS HARDWARE COMPANY, Appellee.
No. 623.
Court of Civil Appeals of Texas, Houston (14th Dist.).
June 14, 1972.
Robert C. Maley, Jr., Stephen P. Bender, Sheinfeld, Maley & Kay, Houston, for appellant.
Irving C. Stern, Gerald S. Gordon, Strickland & Gordon, Houston, Marvin S. Sloman, Robert H. Mow, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Edward G. Murr, Houston, for ap-pellee.
Original opinion and opinion on motion for rehearing ordered withdrawn, and substitute opinion delivered and filed on second motion for rehearing June 14, 1972.
On Second Motion for Rehearing
BARRON, Justice.
Our original opinion in this case and our opinion on motion for rehearing are withdrawn, and the following- is substituted in lieu thereof:
This is a suit for recovery of lease payments or rentals brought by plaintiff, Texas Western Financial Corporation, against defendant, Ideal Builders Hardware Company, in the District Court of Harris County, Texas, under an alleged lease agreement dated June 2, 1966. Under the terms of said agreement, defendant agreed to “lease” personal property or equipment, specifically one SCM # 7816 Typetronic System Computing Processor and deluxe typetronic desk, accessories and related property from plaintiff as owner for a term of sixty months, the total rental and consideration being $19,615.20, payable in monthly installments of $326.92. In addition, a maintenance agreement was entered into whereby the sum of $67.09 was paid monthly by defendant in addition to the above consideration for ordinary maintenance of the equipment during the term of said lease. Apparently the maintenance money was deposited into a special fund to be used in payment to SCM Corporation, apparently the manufacturer of the equipment, for the maintenance on this computer system. It was contemplated by the parties that some ordinary maintenance would be necessary for this type of business equipment. Control Data Corporation purchased certain assets of SCM Corporation, and on July 11, 1968, replaced SCM under its alleged maintenance contract with defendant. Both latter corporations above were brought in as defendants in this case by defendant, Ideal, who alleged, among other things, that neither corporation properly maintained the equipment.
The above described equipment was delivered by plaintiff to defendant, and defendant commenced payment of the rentals on July 13, 1966. Defendant continued to make such payments until the last one received by plaintiff from it on September 19, 1968. No payments have been made since that date. The alleged total of unpaid lease payments due and owing under the “lease agreement” was $10,788.36 at the time of trial. However, commencing about the month of August, 1968, no substantial maintenance was received, the equipment proved to be worthless or practically worthless to defendant, and defendant tendered such equipment back to plaintiff, who refused to receive it.
After a hearing before the court without a jury, the court entered judgment in favor of defendant, Ideal, and the court rendered take-nothing judgments against Ideal and in favor of SCM and Control Data. No appeal has been perfected from judgments in favor of SCM and Control Data. Texas Western, plaintiff below, has duly perfected this appeal against Ideal Builders Hardware Company.
The trial court found, on request, that maintenance duties of SCM were assumed by Control Data about July 11, 1968; that the equipment was not maintained for about one year prior to Control Data’s assumption of such obligations; that with aid from another source, a part of the leased equipment was used by Ideal through the year 1968, and that the remainder of the equipment was not usable; Texas Western took no action to mitigate its damages, repossess the equipment, lease the equipment to another, demand possession of same, or sell it. The trial court concluded that Texas Western is not entitled to recover anything from Ideal, and that Ideal is not entitled to recover from SCM, Control Data or Texas Western. A cross-action had been filed by Ideal against SCM, Control Data and Texas Western seeking cancellation of the contract, refund of all money paid to the parties, and alleged usurious interest paid.
Appellant, Texas Western, contends that the trial court erred because the lease agreement entitles agpéllant to its unpaid lease payments as ^alleged, plus interest and attorney’s fees in the amount of $1,168.25; because of the holding that appellant was required to plead and prove mitigation of damages; and in failing to hold that appel-lee breached the lease agreement.
We believe that all parties and the trial court have treated this matter as one involving a conventional lease contract and one which might apply to real property, and that decisions applying to a lease of realty partly have been permitted to control this case. However, as we view it, the transaction is nothing more or less than a bailment for hire or for mutual benefit of Texas Western and Ideal under a written contract. We believe that the law governing bailments should generally apply.
There may be evidence in the record, though presently insufficient, particularly from witnesses McCann and Kay, that while maintenance failed under the contract agreed upon which Texas Western either assigned or passed on to SCM Corporation, though the payments were mailed by Ideal to Texas Western by agreement, the equipment was basically and seriously defective from the beginning and as delivered. Inferences from the testimony could show that the machines were inherently and originally defective, at least in part, and that they could not properly be remedied or repaired under the ordinary maintenance contract. McCann testified that neither SCM nor Control Data could fix the machines, and that the witness did not know what they could have done with the equipment. The fact that defects appeared some time after use is not controlling as a matter of law.
The small-printed “lease” contract in evidence which is almost illegible provides that “Lessee agrees that the maintenance service, if any, to be performed, is the sole obligation of the supplier of the equipment” and that “Lessor itself makes no express or implied warranties as to any matter whatsoever.” Who the “supplier” was we cannot clearly determine from the record. Further, the written agreement provides that all future rentals shall become immediately due and payable on any default, regardless of use or passage of time, and appellant actually did attempt to accelerate future rentals and declare them immediately due and payable. However, the necessary time had elapsed before trial of this case occurred and rentals were earned and unpaid at time of trial under the contract. The contract is replete with indemnity agreements, waivers, and other provisions which attempt to insulate appellant from any liability whatsoever and practically to fix appellant’s sole obligation as delivery to appellee of personal property of the above description in good repair without further liability. Apparently appellant intended to receive monthly payments as specified without any further obligation whatsoever.
As a general rule, the bailee “is not liable if the subject-matter of the bailment has been injured by some internal decay, by accident, or by some other means wholly without his fault; and, in the absence of some special stipulation, an injury to or loss of the property falls on the bail- or.” See Williamson v. Phillipoff, 66 Fla. 549, 64 So. 269, 271 (1914). And see Tuloma Rigging, Inc. v. Barge & Crane Rentals, Etc., 460 S.W.2d 510, 513 (Tex.Civ. App.-Houston (14th Dist.) 1970, no writ). We believe the evidence could show or raise fact issues that the injury or damage to the property was inherent or of a basic or extraordinary nature, involving extraordinary expenses, and that the damage amounts to more than the requirement of mere maintenance. If such is so, if the property was defective or was so latently fragile at the time of delivery that the anticipated use thereof was likely to cause the equipment to become useless and defective later, and if findings are so made upon sufficient evidence, such findings might control the disposition of this case. Disclaimer of contractual warranty, we believe, does not change the rule. See and compare Clary Towing Company v. Thomas Jordan, Inc., 449 S.W.2d 306, 309-310 (Tex.Civ.App.-Beaumont 1969, writ ref’d n. r. e.). We believe this case is distinguishable from McKenzie Equipment Co. v. Hess Oil & Chemical Corporation, 451 S.W.2d 230 (Tex.Sup.1970) by reason of the possible presence of some evidence of original defectiveness of the equipment and this bailor’s agreement to deliver the property in good repair. See also 8 Am.Jur. 2d Bailments Secs. 144 and 160 (1963) ; 8 C.J. S. Bailments § 24, p. 380 (1962). Such evidence, however, has not been properly developed. The equipment was to be delivered to bailee in good repair, and that provision will be given preference over a related general disclaimer of warranty. A bailee’s liability will not be enlarged by words of doubtful meaning. Sanchez v. Blumberg, 176 S.W. 904 (Tex.Civ.App.-San Antonio 1915, no writ).
As we stated above, the lease creating the bailment for hire in this case was in writing, and its terms were severe against the bailee-appellee. In McKenzie Equipment Co. v. Hess Oil & Chemical Corporation, supra, it was held that the common law liability of a bailee to a bailor for loss or damage to the bailed property is limited to fault or negligence on the part of bailee, but liability may be enlarged to place a greater risk upon a bailee by agreement of the parties. Such is what the written contract definitely did here. McKenzie Equipment Co. went on to hold that an agreement between the parties placing full responsibility and liability for damages due to fire or for any causes other than ordinary wear and tear on the lessee or bailee, was effective to hold the bailee liable for fire damage regardless of fault. In the present case, the contract in more severe terms provides that “8. Lessee assumes the entire risk of loss from hazard and no such loss shall relieve Lessee of its obligations hereunder . . .”. Such provision is similar to that contained in the agreement in McKenzie, supra. The terms, while not as specific, have clearly the same meaning. We cannot ignore such provision of the agreement.
While the maintenance money was paid directly to Texas Western, who either passed it on to SCM and its successor, acted as maintenance agent for Ideal with full responsibility, or was merely aiding Ideal in payment of a separate contract between Ideal and SCM, the answer is not clear. The purported agreements are illegible in the record. In the present state of this record, we cannot say that Texas Western is liable for failure to maintain the equipment, or have it maintained.
Expert testimony may be required to prove certain elements of this case including the original condition of the leased property. Authorities cited in the respective briefs of the parties, we think, are not generally in point. Failure or partial failure of consideration was not found or properly preserved. We are convinced that the controlling issues of fact were not found by the trial court upon which we could base a judgment with fairness to either party. Where findings of fact are filed by the trial court, the judgment cannot be supported on appeal by presuming a finding, no element of which was found by the trial court. Rule 299, Tex.R.Civ.P.; McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.). Findings of fact have not been made upon controlling issues or defenses as required in this case. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, 634 (1957); Carruth v. Valley Ready-Mix Concrete Co., 221 S.W.2d 584, 594 (Tex. Civ.App.-Eastland 1949, writ ref’d).
Cases cited principally by appel-lee, while appearing to be close in some respects, are distinguishable in view of this particular written contract of lease or bailment. For instance, appellant’s attempted acceleration of all future rent when appel-lee stopped payment is not now enforced by us as a penalty under the rule of Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). This is because appellant refused to receive the property when tendered (which it had the right to do), the rental had been earned at the time of trial, and appellee after discontinuing payment failed to tender any type of payment thereafter. Moreover, the trial court having found facts, after proper request, failed to find any facts in this regard. The above phase of this case needs further development and may constitute controlling issues for a court or a jury on another trial. And we find that under the printed rental or bailment contract the appellant is not required to mitigate any damages. The case cited by appellee, Walker v. Salt Flat Water Co., 128 Tex. 140, 96 S.W.2d 231 (1936), and similar authority, are not here in point. Without other sufficiently proven defenses to the rigidly written contract, it was not incumbent upon appellant to repossess or take possession of the leased property and thereby terminate the obligations of the contract, under the very terms of the agreement executed by both parties. These were optional rights of appellant, and they were not required to be invoked except at appellant’s choice.
Except as stated above, in the absence of total or partial failure of consideration or proof that the equipment was originally defective as delivered by appellant, or that the probability was at such time that the equipment was fragile and would become defective or useless during the term of the contract, as stated above, no effective defense to the agreement has been shown or found by the court on sufficient evidence.
We think the case was tried upon the wrong theory, and that the evidence and findings are insufficient to support the judgment below. We so hold. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619, 620-621 (Tex.Comm’n App.1944, opinion adopted). And see Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 798-799 (Tex.Sup.1951); Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178 (Tex.Comm’n App.1937, opinion adopted); West Texas Equipment Company v. Walker, 417 S.W.2d 864, 870 (Tex.Civ.App.-Am-arillo 1967, writ ref’d n. r. e.); Rule 434, Tex.R.Civ.P. A miscarriage of justice, we believe, would occur under the law if this case were not remanded for a new trial.
Reversed and remanded.
. See Sharp v. Chrysler Corporation, 432 S.W.2d 131, 136 (Tex.Civ.App.-Houston (14th Dist.) 1968, writ ref’d n. r. e.) for a different application of the rule.
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sw2d_481/html/0924-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3, Appellant, v. TEXAS WATER RIGHTS COMMISSION et al., Appellees.
No. 11907.
Court of Civil Appeals of Texas, Austin.
May 17, 1972.
Rehearing Denied June 21, 1972.
See also Tex.Civ.App., 481 S.W.2d 930.
Roger C. Butler, Robstown; Vinson, El-kins, Searls & Smith, Victor W. Bouldin, Clifford W. Youngblood, Houston, for appellant.
James R. Riggs, City Atty., Corpus Christi, I. M. Singer, Wood, Burney, Nes-bitt & Ryan, Allen Wood, Corpus Christi, Baker & Botts, Edward S. Howell, Houston, Timothy L. Brown, Austin, for Texas Water Rights Commission.
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Roger Tyler and Vince Taylor, Asst. Attys. Gen., Austin, for other appellees.
SHANNON, Justice.
This appeal involves the construction of Art. 7519a(2) and Art. 7477, Section 8(b) and (c). The principal question concerns the power of The Texas Water Rights Commission, under these statutes, to do other than to cancel a certified filing for nonuse or non-beneficial use. The District Court of Travis County construed the statutes as authorizing the Commission “to exercise its sound discretion” to adjudicate (“to evaluate and clarify”) “. . . previously undefined certified filings and other rights in terms of their priority, use, quantities and limitation . . . ”
Appellant, Nueces County Water Control and Improvement District No. 3, appeals from the judgment of the District Court sustaining the order of the Commission. The order of the Commission to all appearances canceled in part the City’s Certified Filing No. 64. The appellees are the Commission and the City of Corpus Christi. We will reverse the judgment of the trial court, and render judgment that the order of the Commission, insofar as it relates to Certified Filing No. 64, be set aside.
The general subject of this controversy is the distribution of water in a dry and thirsty land. Appellant is a conservation and reclamation district which owns and operates a water supply and irrigation system which constitutes the water supply for the City of Robstown in Nueces County and also for the irrigation of surrounding land. Appellant has the right to take water from the Nueces River under Certified Filing No. 70 and Permit No. 529. Appellant’s diversion facilities are located in a natural pool in the Nueces River in Neuces County in which are located also the City’s diversion facilities by which the City obtains water pursuant to Certified Filing No. 64 and Permit No. 51. The City’s primary water supply at Lake Corpus Christi is not involved in this appeal.
In 1964 the City filed a petition for a declaratory judgment in the District Court of Nueces County seeking to determine its and appellant’s rights in the Nueces River. As a part of that suit the City also sought a recovery of $218,143.51 from appellant for allegedly illegal and improper appropriations of water in the past and also an amount in excess of $22,000.00 per year for those years after 1965. The Nueces County suit had not been tried by December 1, 1965, when the Commission commenced its proceedings against the City and appellant, ostensibly to cancel any unused portion of the City’s claimed rights under Certified Filing No. 64 and Permit No. 51 and appellant’s claimed rights under Certified Filing No. 70 and Permit No. 529. In this opinion we are concerned only with that part of the proceeding pertaining to Certified Filing No. 64, since no complaint was made respecting Permit No. 51, and that part of the controversy involving Certified Filing No. 70 and Permit No. 529 is disposed of in an opinion decided by this Court today, No. 11,906, Nueces County Water Control and Improvement District No. 3 v. Texas Water Rights Commission et al.
With respect to its proceedings the Commission notified the City and appellant and all other water rights claimants on the Nueces as required by Art. 7519a. Those notices dirécted the City and appellant to show cause why any unused part of their respective rights should not be forfeited and canceled. The proceedings were heard in November of 1966 and the Commission entered its orders in February of 1968.
The Commission’s reason, it claims, for filing the cancellation proceeding against the City was that it could not determine from the City’s reports whether or not the City was using all or any part of the water allowed under Certified Filing No. 64. Before the hearing, the City filed pleadings with the Commission to the effect that the water authorized to be appropriated' by Certified Filing No. 64 had been used for municipal purposes for the ten years past which under Sec. 2 of Art. 7519a prevented the cancellation of the Certified Filing. At the hearing all of the evidence was that for more than ten years before 1966 the City had used all of its water rights under Certified Filing No. 64 and had reported that fact to the Commission.
After ascertaining that the City used all of the water authorized by Certified Filing No. 64 for the preceding ten years and that it had been so notified all the while, the Commission did not dismiss its cancellation proceeding, but rather entered the following order:
“After considering the evidence and written briefs of the respective parties, the Commission finds that Certified Filing No. 64 and Permit No. 51 of the City of Corpus Christi, Texas, should be forfeited, revoked and cancelled, in part, and that the remaining water rights existing by virtue of Certified Filing No. 64 and Permit No. 51 which are not forfeited, revoked and cancelled should be specifically defined.
NOW, THEREFORE, BE IT ORDERED BY THE TEXAS WATER RIGHTS COMMISSION that Certified Filing No. 64 and Permit No. 51 be and the same are hereby in all things forfeited, revoked and cancelled; SAVE AND EXCEPT the following:
1. CERTIFIED FILING NO. 64
(a) Impoundment: The City of Corpus Christi, Texas, is authorized to maintain a dam and reservoir at Calallen, Texas, constructed and maintained in accordance with House Bill 740, Acts 24th Legislature, 1895, Ch. 4, p. 922 (10 Gam-mers Laws of Texas 922) and Certified Filing No. 64, with impounding capacity of 928 acre-feet of water.
(b) Use: The City of Corpus Christi, Texas, is authorized to divert and use not to exceed 3,186 acre-feet of water per annum from Calallen Reservoir and the Nueces River for municipal and industrial purposes.
(c) Rate of Diversion: 4.4 cfs (1971 gpm).
(d) Date of Priority: 1895.”
Appellant complains that the Commission’s order did not forfeit or cancel any part of Certified Filing 64, but rather it attempted to convert the purported forfeiture and cancellation proceeding into an adjudication proceeding as to Certified Filing No. 64 and attempted to enlarge and up-grade Certified Filing No. 64 by (a) back-dating the priority of Certified Filing No. 64 from 1913 to 1895 and ahead of appellant’s Certified Filing No. 70 which has a 1909 priority; (b) increasing the maximum rate of diversion from 0.93 cubic feet per second of time to 4.4 cubic feet per second of time and the annual volume of use from 678 acre-feet to 3,186 acre-feet; and (c) granting to the City the benefit of all natural storage below sea level in the natural enlargement and deepening of the river at the respective pumping plants of the City and appellant.
That the City considered its interests well served by the Commission’s order is evidenced by the fact that it did not appeal the order to the District Court.
In its judgment the trial court incorporated findings of fact and conclusions of law and therein concluded that Art. 7519a (2) should be construed “in light of” Article XVI, Section 59(a) of the Texas Constitution, Vernon’s Ann.St. and Article 7477, Sections 8(b) and (c), so as to authorize the Commission “to exercise its sound discretion to evaluate and clarify a previously undefined certified filings and other rights in terms of their priority, use, quantities and limitations in order to regulate the public water of the State, to promote the public welfare, and cancel other water rights, this being particularly necessary when considering the cancellation of other rights diverting from the same or proximate locations.” (Emphasis added.)
Appellant argues that the Commission lacked the power under the statutes to enter this order, since all the evidence established that all of the water had been used by the City during the test period, and that the only order which the Commission had the power to enter was one of dismissal since, as a matter of law, there was nothing to forfeit.
Art. 7519a(2) authorizes the Commission, upon certain conditions, to forfeit and cancel Certified Filings and Permits where some part of the water authorized to be appropriated thereunder has not been put to beneficial use during the preceding ten year period. The pertinent portion reads as follows:
“2. When the Board of Water Engineers or its successor has determined from its records that all of the public waters authorized to be appropriated under a certified filing, or under a permit issued ten (10) years or more prior to the effective date of this Act, or prior to the date of cancellation proceedings herein authorized, has not been put to a beneficial use at any time during a period of ten (10) consecutive years next preceding the effective date of this Act, or the date of the cancellation proceedings herein authorized, it may cause a public hearing to be held on the matter of cancelling that portion of such permit or certified filing which has not been beneficially used at any time during such ten (10) consecutive years, and if it should appear to the Board that the holder of the permit or certified filing has not been diligent in applying all or any part of such unused water to beneficial use under the terms of the permit or certified filing and has not been justified in such nonuse or does not have a bona fide intention of putting such unused waters to beneficial use under the terms of the permit or certified filing within a reasonable period of time after the date of such hearing, then such permit or certified filing shall be subject to forfeiture and cancellation by the Board as to such portion of such waters as to which such facts are so found. The absence from the records of the Board of proof of use of such water during said ten-year period shall be sufficient for initiating such cancellation proceedings.”
After providing for notice as mentioned above, this statute continues as follows:
“If the Board should find as a result of such hearing that any portion of the water authorized to be diverted and used under such permit or certified filing has not been put to an authorized bene-ficiál use during said ten-year period, and that reasonable diligence has not been used by the holder or holders in applying such unused portion of said water to beneficial use under the terms of the permit or certified filing, and that such holder has not been justified in such nonuse or does not have a then bona fide intention of putting such unused water to beneficial use under the terms of the permit or filing within a reasonable time after such hearing, the Board shall enter its order cancelling such permit or certified filing as to the portion of the water as to which such findings are made, and said portion of said water shall again be subject to appropriation.
Where the holder of a certified filing or permit has facilities for the storage of water in a reservoir, the Board shall allow such holder to retain a water appropriation to the extent of the conservation storage capacity of such reservoir owned by such holder of the certified filing or permit. Notwithstanding other provisions of this Article to the contrary, no portion of a certified filing held by a city, municipal water district, town or village authorizing the use of water for municipal purposes shall be cancelled when water has been put to use under such certified filing for municipal purposes at any time during the ten-year period prior to the cancellation proceedings herein authorized.”
The Commission argues that the Conservation Amendment, Article XVI, Section 59(a), Texas Constitution “taken together with” the interpretation of Article 7519a in Texas Water Rights Comm. v. L. A. Wright, 464 S.W.2d 642 (Tex.1971) compel a construction that it had the power to enter its order. Wright, supra, held that Art. 7519a was constitutional. The language in Wright, relied on by the Commission follows:
“By way of summary, the vested rights which the permittees held by force of the two water permits, were rights limited to the beneficial use of water . At all relevant times, the State had rights as the owner of the water. It also had a constitutional duty to preserve and conserve its water.
“. . . We conclude that the per-mittees could reasonably expect that their rights would be subjected to a remedy enforcing the conditions inherently attached to those rights and enabling the state to assert and protect its own rights and interests in the water . . . ” (Emphasis added by the Commission.)
We, of course, agree with the holding and the quoted language from Wright, supra, but fail to see that either bears on the resolution of the problem in this case.
As in the case of other administrative agencies, the Commission has only those powers granted by statute together with those necessarily implied from the authority conferred or duties imposed. See Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158 (1961). The application of this precept by this Court to the Commission’s predecessor, The State Board of Water Engineers, is found in Fairbanks v. Hidalgo County Water Improvement District No. 2, 261 S.W. 542 (Tex.Civ.App.1924, writ dism’d). In that case Justice Blair said, “The .board’s duties and powers are strictly confined and limited by statutes. If the statutes do not grant the board the power to do a thing, then it has no such power. The fact that it has general supervision over the subject does not give it jurisdiction over any and all controversies that may arise out of the operation of the law.”
An examination of this statute indicates that the power granted to the Commission is limited to the forfeiture and cancellation of unused water rights. It does not deal with the subject of adjudication of the portion of a water right which has been used and is not subject to forfeiture.
The other statute relied on by the Commission is Art. 7477, Section 8 which provides as follows:
“Sec. 8. (a) The Commission shall have the duty of receiving, administering, and acting upon all applications for permits, or amendments thereto made by any person, political subdivision or by the Board to appropriate public waters for beneficial use or storage or to construct works for the impoundment, storage, diversion or transportation of public waters. The Commission may issue permits for storage solely for the purpose of optimum development of projects, and such permits for storage may be converted into permits for beneficial use by further application therefor to the Commission.
(b) The Commission shall have the duty of administering proceedings for the cancellation and forfeiture, in whole or in part, of permits and certified filings for the appropriation of public waters as provided in Articles 7474, 7519, 7544 of the Revised Civil Statutes of Texas, and Acts 1957, 55th Legislature, Chapter 39 (compiled as Articles 7519a and 7519b, Revised Civil Statutes).
(c) It is the intent and desire of the Legislature that the Commission shall undertake an orderly, active and continuing evaluation of outstanding permits and certified filings and initiate and carry forward measures to cancel in whole or in part those certified filings and permits that are subject to cancellation in whole or in part.”
Appellees claim that the Commission is empowered to adjudicate water rights by Sec. 8(c) which admonishes the Commission to undertake “an orderly, active and continuing evaluation of outstanding permits and certified filings and initiate and carry forward measures to cancel in whole or in part those certified filings and permits that are subject to cancellation in whole or in part.” Appellees construe “orderly, active and continuing evaluation” as tantamount to adjudication. We do not agree.
In the beginning, the two terms are not synonymous. To evaluate is not to adjudicate. To evaluate is to ascertain the value or amount of or to appraise carefully, while to adjudicate means “To hear or try, and determine judicially; to settle by judicial decree; to adjudge; to act as ‘judge.’ ” Webster’s International Dictionary (2nd Ed.). By the terms of Sec. 8(c) the Commission is charged to continually assess outstanding permits and certified filings and, based upon the results of that appraisal, proceed to cancel in whole or part those certified filings and permits which are subject to cancellation. The legislative admonition to evaluate in no way adds more authority than that of cancellation.
The Water Rights Adjudication Act (Art. 7542a) was enacted in 1967 at the next session of the Legislature after Art. 7477 was rewritten. This Act is rather comprehensive and provides for the initiation by the Commission of proceedings to adjudicate all water rights on a stream or segment of a stream, with a preliminary determination of such rights by the Commission, after a series of notices and public hearings. The Commission must then file its findings in a District Court and upon trial all contested issues are tried de novo and the rights of the parties are finally determined by judicial decree. The passage of this Act is a convincing indication that the Legislature did not view that all of these adjudicatory powers had been already vested in the Commission by Art. 7477, Section 8(c) which speaks of “evaluation.”
We hold that neither Section 2 of Art. 7519a nor Section 8(b) and (c) of Art. 7477 empowers the Commission to adjudicate the terms, elements and measures of Certified Filing No. 64.
The judgment of the trial court is reversed and judgment is here rendered that the order of the Commission, insofar as it relates to Certified Filing No. 64, be set aside.
Reversed and rendered.
.Statutory references are to Vernon’s Texas Civil Statutes. The Texas Water Code, which recodifies the Texas water statutes, did not become effective until September 1, 1971, after this suit was filed and tried, and is not referred to in this opinion.
The Water Rights Adjudication Act, Art. 7542a, was not in effect when the hearings were held before The Texas Water Rights Commission, and is not involved in this appeal.
. Usually called the “Commission” in this opinion.
. Usually called the “City” in this opinion.
. Section 2 of Art. 7519a authorizes the Commission, after notice and hearing and upon making certain findings, to forfeit and cancel such part of a Certified Filing or Permit that has not been put to beneficial use during the ten-year period next preceding the forfeiture proceeding. An important exception to this grant of authority, however, is stated in the second paragraph of Section 2:
“Provided, however, that the Board shall send notice of such pending cancellation by registered mail, return re-
ceipt requested, to the holder of any such permit or certified filing, at the last address shown by the records of the Board of Water Engineers at least ninety (90) days prior to the effective date of such cancellation. The failure of the Board of Water Engineers to cancel a permit or certified filing hereunder shall not be construed as validating any such permit or certified filing not cancelled. Added Acts 1953, 53rd Leg., p. 867, ch. 352, § 1.”
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sw2d_481/html/0930-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3, Appellant, v. TEXAS WATER RIGHTS COMMISSION et al., Appellees.
No. 11906.
Court of Civil Appeals of Texas, Austin.
May 17, 1972.
Rehearing Denied June 21, 1972.
Roger C. Butler, Robstown, Vinson, Elk-ins, Searls & Smith, Victor W. Bouldin, Clifford W. Youngblood, Houston, for appellant.
James R. Riggs, City Atty., Corpus Christi, I. M. Singer, Wood, Burney, Nes-bitt & Ryan, Allen Wood, Corpus Christi, Baker & Botts, Edward S. Howell, Houston, Timothy L. Brown, Austin, for Texas Water Rights Commission.
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Roger Tyler and Vince Taylor, Asst. Attys. Gen., Austin, for other appellees.
SHANNON, Justice.
The main question to be decided is whether a conservation and reclamation district, under the circumstances of this case, could change the use of irrigation waters under its certified filing to municipal and domestic purposes as conditions change without filing an amendment to its certified filing and obtaining the approval of the Texas Water Rights Commission. We hold that it could.
This is a companion case to No. 11,907, Nueces County Water Control and Improvement District No. 3 v. Texas Water Rights Commission et al., 481 S.W.2d 924, which was decided by this Court today.
Appellant, Nueces County Water Control and Improvement District No. 3, appeals from the judgment of the District Court of Travis County sustaining the order of the Texas Water Rights Commission dated February 7, 1968. The Commission’s order, seemingly, was a partial cancellation of appellant’s claimed rights under Certified Filing No. 70 and Permit No. 529. The appellees are the Commission and the City of Corpus Christi. We will reverse the judgment of the trial court, and here render judgment that the order of the Commission dated February 7, 1968, be set aside and annulled.
In this summary the facts set out in the companion case will not be repeated unless necessary. Appellant, a conservation and reclamation district, was created in 1921 and since that time it has been the only source of water for Robstown. Appellant also supplies water to farms within its boundaries primarily for irrigation purposes. As Robstown’s population increased, its metropolitan population now being about 21,000, its urban area occupied farmlands formerly supplied irrigation water by appellant. Appellant has acquired by deed all water rights for 372 acres which have been changed from farming to urban development, and the owners of about 3,750 acres have authorized appellant to change the portion of the irrigation waters to which their land is entitled to the higher use of municipal and domestic purposes.
Appellant owns two water rights, Certified Filing No. 70 and Permit No. 529. Certified Filing No. 70 allows appellant to irrigate a total of 4,303.1 acres. Appellant is empowered by Permit No. 529 to appropriate 2,774 acre-feet of water per year for the irrigation of 1,109.5 acres and 166 acre-feet per year for a water supply for Robstown.
The 166 acre-feet of water for municipal purposes mentioned in Permit No. 529 soon became inadequate to supply Robstown. In 1926 appellant reported to the Commission’s predecessor that it had used 185 acre-feet of water for municipal purposes. And after 1926 each yearly water service report showed steady increases in the annual quantities of water used for municipal purposes in keeping with the growth of Robstown. By 1947 municipal uses of the water had increased to 1,204 acre-feet per annum and to 1,515.65 acre-feet per annum by 1963. Though the Commission was notified of the increase of municipal uses for thirty-eight years, it made no effort to stop the practice until the initiation of the cancellation proceedings on December 1, 1965.
By its order of February 7, 1968, the Commission attempted to forfeit and cancel appellant’s right to irrigate 1,146 acres of land under Certified Filing No. 70 by reducing the authorized acreage from 4,306 acres to 3,160 acres. Its order also presumed to limit the use of water under Certified Filing No. 70 to irrigation purposes only, and to limit appellant’s total water rights for municipal and domestic use to the 166 acre-feet authorized for these purposes under Permit No. 529.
In summary, the Commission attempted to forfeit that portion of Certified Filing No. 70 which had been converted from irrigation to municipal and domestic uses prior to the hearings and to foreclose appellant’s right to continue to convert water from irrigation to municipal and domestic uses as the need for irrigation declines and the need for municipal and domestic uses increases.
The judgment of the trial court sustained the Commission’s order and the trial court concluded as a matter of law that appellant could not change the purpose of use of any water under Certified Filing No. 70 until it had applied for and obtained from the Commission an amendment authorizing such change. The appellees’ position in the trial and here is that appellant could not, without amending Certified Filing No. 70 through Commission action, convert water formerly used for irrigation purposes under Certified Filing No. 70 to municipal and domestic purposes, and that as irrigation is reduced by urban spread, the water right is lost to that extent. Underlying the City’s interest in this proceeding is its claim in the Nueces County lawsuit that appellant should be required to pay the City for all water used by appellant for municipal and domestic purposes over the 166 acre-feet per annum authorized by Permit No. 529, a claim for $218,143.51 in addition to $22,000.00 per year for each year after 1965.
Appellant’s position is that it is authorized to change the use of irrigation waters under Certified Filing No. 70 to municipal and domestic purposes as conditions change and as the need of the people for the one use decreases and the need for the other use increases without being required to obtain an amendment to Certified Filing No. 70 from the Commission. We sustain appellant’s position for several reasons.
Art. 7880-4a empowers the directors of a district, such as appellant, to ■ withdraw water from an inferior use, e.g. irrigation, to a superior use, e.g. domestic and municipal use.
Art. 7880-4a provides as follows:
“Preference in use of water.
Districts organized under the provisions of this Act may in the discretion of their directors award use of waters of the district in the following order of preference and superiority, viz. :
1st. Domestic and municipal use;
2nd. Industrial use, other than the development of hydro-electric power;
3rd. Irrigation;
4th. Development of hydro-electric power;
5th. Pleasure and recreation.
Where the welfare of the district may require, the directors of such district may withdraw water from an inferior use and appropriate such water to a superior use, as hereinabove given discretionary preference. Whenever such diversion or withdrawal will affect a vested right, such withdrawal or diversion must be after condemnation proceedings as provided for in Section 126 of this Act. Acts 1925, 39th Leg., p. 86, ch. 25, § 4a, added Acts 1927, 40th Leg., 1st C. S., p. 496, ch. 107, § 3.”
There is nothing in Art. 788CM-a or any other statute, of which we are aware, which would require a district to obtain the approval of the Commission before it could exercise the discretionary power which is vested solely in its directors.
The only condition stated in the statute is that a district must condemn any vested right which would be adversely affected by such conversion. There has been no showing made in this record of any injury caused by appellant’s conversion. The owners of 70 percent of the irrigable land in appellant’s boundaries have consented to and encouraged such conversion and appellant has conveyances to all water rights to which 372 acres of land formerly under irrigation are entitled. Similarly, the City neither pleaded nor proved any adverse effect which the conversion would have on any of its vested rights.
Nor have we been shown a statute authorizing the Commission to amend a certified filing or requiring the Commission’s approval before the purpose of use of water appropriated under a certified filing may be changed. With respect to the rules and regulations of the Commission, until 1964, they contained nothing concerning certified filings. The first rules and regulations were adopted in 1914, and there were revisions in 1917, 1925, 1945, 1953, 1955 and 1964. In the 1964 revision, Rules 605.1 and 605.2 provide procedures for amending “an existing water right” without public hearing and Rules 610.1 and 610.2 provide procedures for amending “permits and certified filings.” Rules 610.-1 and 610.2 may not be applied retroactively to invalidate appellant’s conversion of water under Certified Filing No. 70.
Clark v. Briscoe, 200 S.W.2d 674 (Tex.Civ.App. 1947, no writ) is not controlling in this case. The question there was whether or not the owner of a permit issued by the Commission after 1913 could change the place and purpose of use of his water from that specifically authorized in the permit. A certified filing was not involved. The rationale of Clark, supra, is that the necessity for obtaining approval of the Commission to change the authorized place or purpose of use of water under a permit is implied from the statutory policy and requirements relating to the grant of a permit in its original form, including the Commission’s approval of the original place and purpose of use. Those reasons are absent in the instance of a certified filing since the State’s approval of the place and purpose of use was not required in initiating a certified filing.
We reverse the judgment of the trial court and here render judgment that the Commission’s order of February 7, 1968 be set aside, and held for naught.
Reversed and rendered.
. Usually referred to as the “Commission” in this opinion.
. Usually referred to as the “City” in this opinion.
. References are to Vernon’s Texas Civil Statutes.
. See: The Irrigation Act of 1889 (Chap. 88, p. 100, General Laws, 1889) ; The Irrigation Act of 1895 (Chap. 21, p. 21, (751), General Laws, 1895) ; The “Burges-Glasscock Act” (Chap. 171, p. 358, General Laws, 1913).
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sw2d_481/html/0934-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Dr. Ruth JACKSON et al., Appellants, v. FONTAINE’S CLINICS, INC., Appellee.
No. 5128.
Court of Civil Appeals of Texas, Waco.
May 4, 1972.
Rehearing Denied June 8, 1972.
Burford, Ryburn & Ford, Logan Ford, John F. Harrison, David Ford Hunt, Dallas, for appellants.
George E. Flannigan, Jerry W. Biesel, Dallas, for appellee.
OPINION
McDONALD, Chief Justice.
This is an appeal by Defendant Jackson from judgment against her in favor of Plaintiff Fontaine’s for $25,000 actual and $65,000 exemplary damages, in an unfair trade practices suit.
Plaintiff Fontaine’s Clinics, Inc. which operates three clinics for the removal of hair from the human body by electrolysis, sued Defendants Dr. Ruth Jackson, Catherine Ward, Gwynn Gambrell, Margaret Hanson, and A.S.E. Dermatetics Clinics, Inc., to enjoin alleged unfair trade practices of defendants and to recover damages caused thereby. Plaintiff alleged defendants entered into a conspiracy to commit, and did commit acts which damaged plaintiff’s business and reputation by proselyting plaintiff’s employees and its business secrets; and by interfering with its contractual relations with its employees and patients, through libelous statements and inducements, causing damages for which all defendants are jointly and severally liable. Plaintiff sought $181,024 actual damages and $1,000,000 punitive damages.
Trial was to a jury which found:
1) Ruth Jackson, Catherine Ward, Gwynn Gambrell and Margaret Hanson entered into a conspiracy to embark upon a plan, scheme or design for the commission of acts calculated to damage Fontaine’s Clinics in its business operations.
2) Such conspiracy was accompanied by overt acts designed to accomplish such purpose.
3) Such overt acts proximately caused Fontaine’s Clinics a loss of monetary reward from its business activities.
4) Fontaine’s active clientele as evidenced by cards containing name, address and telephone number was a trade secret.
5) Catherine Ward used a list of names compiled from such cards to solicit business for A.S.E.
6) Which proximately caused Fontaine’s a loss of monetary reward from its business activities.
7) In the amount of $25,000.
8) The overt acts inquired about in issues 1 and 5 were motivated by malice on the part of Dr. Ruth Jackson.
9) For which $65,000 exemplary damages should be awarded against Dr. Ruth Jackson.
10) Margaret Hanson was not motivated by malice.
12) Catherine Ward was motivated by malice.
13) For which $1000 exemplary damages should be awarded against Catherine Ward.
14) Gwynn Gambrell was motivated by malice.
15) For which $250 exemplary damages should be awarded againt Gwynn Gam-brell.
The trial court overruled Defendants’ Motions for directed verdict and judgment non obstante veredicto, and granted Plaintiff’s Motion for judgment and rendered judgment plaintiff recover: $90,000 ($25,000 actual and $65,000 exemplary damages) from Defendant Dr. Ruth Jackson, $1000 from Defendant Ward, and $250. from Defendant Gambrell. Defendants filed Motion and Amended Motion for new trial. The trial court directed plaintiff to file remittitur of $32,500 of the exemplary damages awarded against Dr. Ruth Jackson, which remittitur was filed by plaintiff, reserving the right to complain of same on appeal. The trial court then overruled Defendants’ Motion for new trial, but did not reform the judgment in conformity to such remittitur.
Defendants appeal on 52 points asserting:
1) There is no evidence that Fontaine’s sustained any damage caused by defendants’ alleged overt acts; (and no evidence and insufficient evidence to sustain the jury’s answer to issue 3, 6, 7.)
2) There is no evidence and insufficient evidence to sustain the jury’s answer to issues 8 and 9.
3) The award of $25,000 actual and $65,000 exemplary damages against Dr. Ruth Jackson is excessive.
4) Exemplary damages awarded against Defendants Ward and Gambrell are error as there is no judgment for actual damages against them.
5) The trial court erred in admitting into evidence plaintiff’s exhibits 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51.
6) The trial court erred in rendering $25,000 actual damages against Dr. Ruth Jackson alone, while rendering no judgment against the other coconspirators for actual damages, as this deprives Dr. Jackson of the right of indemnity or contribution of funds that may be paid by Dr. Jackson in discharge of liability of the other 3 defendants.
7) The trial court erred in failing to reduce the exemplary damages against Dr. Ruth Jackson from $65,000 to $32,500 pursuant to the court’s suggestion of re-mittitur, which plaintiff complied with.
Plaintiff by cross point asserts the trial court erred in requiring a remittitur of $32,500.
Plaintiff Fontaine’s operated three clinics : two in Dallas and one in Ft. Worth for the removal of unwanted hair from the human body by means of electrolysis. In June 1969, Catherine Ward went to work at Fontaine’s as a manager. She had control and management of the Preston Center Clinic in Dallas, was in charge of all records, technicians, patients, and the selling of patients. As manager she had direct contact with every client or prospective client who came to the clinic. Mrs. Ward became acquainted with a patient, Dr. Ruth Jackson, an orthopedic surgeon, and later Dr. Jackson treated Mrs. Ward for a neck injury. Dr. Jackson learned from Mrs. Ward that Mrs. Ward was disappointed in the size of her commission check, and asked her how much it would cost to put in a clinic, and to check on a possible location. Dr. Jackson arranged several meetings at her home with Mrs. Ward, a Mr. Charette and Margaret Hanson, at which time plans were made in regard to the new venture. Dr. Jackson secured a charter for a corporation called A.S.E. Dermatetics, and was owner of 100% of the stock. She opened A.S.E. at 3620 Fairmount Street as a clinic to remove unwanted human hair and induced Mrs. Ward to leave Fontaine’s and join A.S.E. She requested Mrs. Ward to find out how many patients she could bring with her. Dr. Jackson discussed with Mrs. Ward the possibility of patients following the technicians who were going to leave Fontaine’s for A.S.E. Mrs. Ward, at Dr. Jackson’s insistence contacted four of Fon-taine’s technicians for the purpose of inducing them to go with her to A.S.E., and Janis Story and Gwynn Gambrell did go. Dr. Jackson was informed all Fontaine’s employees had a written employment agreement with Fontaine’s not to compete within two years with Fontaine’s in Dallas, after leaving Fontaine’s. Dr. Jackson examined a copy of the agreement furnished her by Mrs. Ward and told Mrs. Ward her attorneys had examined it, and it “wouldn’t hold up in court.” Mrs. Ward talked with 80% of the patients of Fontaine’s informing them of her new location, and informed them per Dr. Jackson’s instructions, that A.S.E. would negotiate with them if they had credit remaining at Fon-taine’s. On the last night of Mrs. Ward’s employment at Fontaine’s, May 2, 1970, Dr. Jackson, Mr. Charette, Mrs. Ward and Linda Butcher, a technician at Fontaine’s, stayed after hours and in secret copied the names of customers from Fontaine’s active customers’ files. Mrs. Ward later used this list to solicit customers for A.S.E. A.S.E. treated 10 or 15 of Fontaine’s former patients before being enjoined by the court, and had only one patient who was not a previous patient of Fontaine’s. Derogatory statements were made about Fon-taine’s to each of these patients.
Defendants’ contention 1 asserts there is no evidence that Fontaine’s sustained damage by defendants’ acts, and there is no evidence Fontaine’s suffered monetary loss of $25,000.
Fontaine’s was a ten-year old business which had grown consistently since it was founded. Dr. Jackson founded a competing clinic to Fontaine’s, persuaded Fon-taine’s manager, Mrs. Ward, to come to the new clinic along with two of Fon-taine’s technicians; Mrs. Ward contacted 80% of Fontaine’s customers; Mrs. Ward and Dr. Jackson with two others copied Fontaine’s customer list at night at Fon-taine’s office, and Mrs. Ward used it to solicit Fontaine’s customers for A.S.E. There is evidence the customer list copied by defendants cost $50,000, that sales decreased some $26,000 at Fontaine’s during the period May 1-December 31, 1970 from the preceding year. Business declined only at the Dallas operation and not in Ft. Worth.
From the foregoing it is clear and certain that plaintiff suffered legal damages. The evidence presented a question of fact, and we think it ample and sufficient that Fontaine’s sustained damages by reason of defendants’ acts, and to sustain the jury’s answers to issues 3, 6, and 7. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097.
Contention 2 asserts there is no evidence and insufficient evidence to sustain the jury’s answers to issues 8 and 9, finding Dr. Ruth Jackson motivated by malice, and awarding $65,000 exemplary damage; and contention 3 asserts that the award of $25,000 actual and $65,000 exemplary damages is excessive.
Dr. Jackson employed plaintiff’s manager and technicians knowing they were under a contract not to compete with plaintiff; copied plaintiff’s patient list; and caused it to be used to secure plaintiff’s customers. Such constitutes such bad or evil motives or such gross indifference to the rights of others as amounts to a wilfull and wanton act, done without just cause or excuse. The evidence is ample to sustain the jury’s answer to issue 8. Issue 9 awarded plaintiff $65,000 exemplary damages. We think the evidence sufficient to sustain such award only to the extent of $32,500 and that the award of $65,000 is excessive in the amount of $32,500. The award of $25,000 actual damages to plaintiff is not excessive.
Contention 6 complains of the trial court rendering $25,000 actual damages against Dr. Ruth Jackson and no judgment against her co-conspirators; and contention 4 complains of the award of exemplary damages against Defendants Ward and Gambrell when no judgment for actual damages was rendered against them. We think the trial court should have rendered judgment for the $25,000 actual damages jointly and severally against Ruth Jackson, Catherine Ward, Gwynn Gambrell and Margaret Hanson, and that the judgment should be reformed to such extent. With the award of actual damages against Defendants Ward and Gambrell, the award of exemplary damages against them under the record is proper.
Contention 5 complains of the trial court’s admission into evidence plaintiff’s exhibits 42 through 51. Such exhibits were summaries of the gross expense, net expense, personnel, advertising expense, rent, salaries, and income, prepared from the books and records of Fontaine’s. All records of which the exhibits were summaries were kept under the president of Fon-taine's direct supervision and control, and were brought into the courtroom and tendered to defendants, or any qualified person for such examination as they deemed appropriate to make.
A tabulated schedule or summary of voluminous records, may in the discretion of the trial court, be admitted to expedite the trial and aid the trier of fact, assuming that the records themselves are admissible. Cooper Petroleum Co. v. La-Gloria Oil and Gas Co., Tex., 436 S.W.2d 889.
The trial court properly admitted the exhibits.
Contention 7 complains of the failure of the trial court to reduce the exemplary damages against Dr. Ruth Jackson pursuant to remittitur of $32,500 filed by the plaintiff.
The trial court determined, as has this court that the jury’s award of $65,000 exemplary damages was excessive in the amount of $32,500, required a remittitur by plaintiff of $32,500, but did not reduce the judgment against Dr. Jackson by such amount. The trial court should have done this.
The judgment of the trial court is reformed to render judgment against Dr. Ruth Jackson, Catherine Ward, Gwynn Gambrell, and Margaret Hanson, jointly and severally for $25,000; against Dr. Ruth Jackson for $32,500 additional; and against Catherine Ward for $1000 additional; and against Gwynn Gambrell for $250 additional; and as reformed is affirmed.
Except as above provided all points and contentions of appellants are overruled; and appellee’s cross point is overruled.
Costs of appeal are taxed against appel-lee.
Reformed and affirmed. |
sw2d_481/html/0939-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Morris DORBANDT, Appellant, v. Sam BAILEY and Theodore Saba, Appellees.
No. 639.
Court of Civil Appeals of Texas, Tyler.
May 18, 1972.
Rehearing Denied June 15, 1972.
Clapp & Beall, Alex Beall, Tyler, for ap pellant.
Kenneth R. King, Tyler, for appellees
MOORE, Justice.
Appellant, Morris Dorbandt, brought suit against appellees, Sam Bailey and Theodore Saba, to impress a constructive trust upon the title to various tracts of land described in his petition. Appellees answered with a general denial and a cross-action to quiet title to the lands in question and also a cross-action for damages allegedly resulting from a cloud cast on their title by reason of a lis pendens notice which appellant caused to be filed ancillary with his main suit.
Trial was before a jury. At the conclusion of the evidence, the trial court submitted special issues to the jury covering the various aspects of appellant’s cause of action to impose a constructive trust upon the lands in question. The jury found against appellant, Morris Dorbandt, on all of these issues. The court also submitted Special Issues Nos. 5, 6, and 7 inquiring as to whether or not the appellees had sustained damages by reason of appellant’s filing the lis pendens notice as alleged in their cross-action. In response to these issues, the jury found appellees had sustained damages and returned a verdict in favor of appellee, Sam Bailey, for the sum of $2,250.00 and in favor of appellee, Theodore Saba, for $1,584.00. Appellant, Dorbandt, then filed a motion requesting the court to disregard the jury’s findings on Special Issues Nos. 5, 6, and 7. In response to the motion, the trial court disregarded the jury’s findings on the damage issues and rendered judgment denying ap-pellees a recovery for damages. The trial court also rendered judgment on the verdict against appellant, Dorbandt, denying him a recovery for any interest in the land in question. Being dissatisfied with the judgment, both appellant and appellees gave notice of appeal.
This is the second appeal of this case. Upon the first appeal, we reversed and remanded a summary judgment in which the trial court granted Bailey and Saba title to the land in question, holding that the summary judgment evidence presented by appellant, Dorbandt, was sufficient to raise a disputed issue of fact on Dorbandt’s claim to an individed interest in the lands by reason of his claim of a constructive trust. Also, upon the first appeal, we affirmed that portion of the judgment denying Bailey and Saba a recovery upon their cross-action for damages based on Dorbandt’s filing of the lis pendens notice. Dorbandt v. Bailey, 453 S.W.2d 205 (Tex.Civ.App., 1970, writ ref., n. r. e.).
Upon the trial of the present case, which forms the basis of this appeal, the trial court submitted to the jury Special Issues Nos. 5, 6, and 7 again inquiring as to whether or not appellees suffered damages by reason of the filing of the lis pendens notice, and if so, the amount thereof.
By this appeal, appellant, Dorbandt, urges that the trial court erred in again submitting the damage issues to the jury in view of our former opinion affirming a take-nothing judgment rendered against Bailey and Saba upon the first appeal. As we understand appellant’s two points of error, he contends that the evidence offered by appellees showing damages, as well as the submission of the issues to the jury, were so inflammatory and prejudicial that it influenced the jury in returning an unfavorable verdict against him upon his special issues inquiring as to whether or not a constructive trust was established. In reply, appellees assert that appellant waived any complaint he might have had with regard to the evidence and submission of the damage issues because he failed to make any objection whatever in the trial court. We agree with the proposition asserted by the appellees and accordingly overrule appellant’s points of error.
Appellant readily admits that he filed no special exceptions to appellees’ cross-action for damages as set forth in their first amended original petition and their trial amendment thereto. He further admits that he made no objection to the testimony offered by appellees showing that damages resulted to them by reason of the loss and rental value of the lands; and that he made no objection to the submission of Special Issues Nos. 5, 6, and 7 inquiring of the damages sustained by appellees. There is nothing in the record indicating that the appellant ever objected to any of the evidence or the issues on the ground that same was so highly inflammatory that it was calculated to prejudice him in the eyes of the jury.
It is elementary that this court has no authority to pass on alleged errors not complained of in the trial court. Rule 418, Texas Rules of Civil Procedure; Hyde v. Hyde, 406 S.W.2d 225 (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.); Barrett v. Curtis, 407 S.W.2d 359 (Tex.Civ.App., Dallas, 1966, n. w. h.). By failing to object to any of the alleged harmful testimony and by failing to object to the submission of the damage issues, appellant waived any right he might have had to complain on appeal. Moreover, even if appellant had properly preserved the point by proper objection, we are unable to see how any harm could have resulted. Rule 434, Texas Rules of Civil Procedure. The facts presented here, in our opinion, certainly do not involve a situation where the introduction of the testimony was so highly inflammatory as to be prejudicial without an objection.
By way of two cross-points, appellees complain of the action of the trial court in disregarding Special Issues Nos. 5, 6, and 7 and denying them a recovery for damages.
As we view the record, this court is without jurisdiction over appellees’ appeal upon their cross-action because they failed to timely file the record in this court. The judgment is dated October 14, 1971. It recites that appellees gave notice of appeal on the same date. Appellees did not file a motion for new trial, nor did they file the record in this court. The record was filed by the appellant. It was not filed, however, until January 26, 1972. Thus, insofar as appellees’ appeal from the adverse judgment is concerned, they failed to perfect an appeal within the sixty-day period allowed by Rule 386, Texas Rules of Civil Procedure. Our courts have repeatedly held that this rule is mandatory and jurisdictional and that the time limits therein prescribed cannot be waived, dispensed with or enlarged except upon the conditions set forth in the rule. Horn v. Builders Supply Company of Longview, 401 S.W.2d 143 (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.). The fact that the appellant filed a motion for a new trial and thus extended his time for the filing of the record did not inure to the benefit of appel-lees or otherwise excuse their failure to file the record within sixty days. Each appellant must base his appeal upon his own actions. Angelina County v. McFarland, 374 S.W.2d 417 (Sup.Ct., 1964); Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (Sup.Ct., 1959); Horn v. Builders Supply Company of Longview, supra. Since the record was not filed in this court within sixty days after the date of the judgment denying appellees a recovery upon their cross-action and since this court has no legal authority or discretion in the matter, we are compelled to dismiss the appeal of appellees for want of jurisdiction.
Finding no reversible error, the judgment of the trial court is affirmed. |
sw2d_481/html/0941-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WALTER, Justice.",
"license": "Public Domain",
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Ed AIKEN, Jr., Appellant, v. Anna Lee Spires JUDD et al., Appellees.
No. 4538.
Court of Civil Appeals of Texas, Eastland.
May 5, 1972.
Rehearing Denied June 2, 1972.
Mays, Moore, Dickson & Roberts (R. Temple Dickson), Sweetwater, for appellant.
Nunn, Griggs, Beall & Wilks (Charles R. Griggs), Sweetwater, Evans, Pharr, Trout & Jones (Charles B. Jones), Lubbock, for appellees.
WALTER, Justice.
Ed Aiken, Jr. filed suit against Anna Lee Spires Judd for specific performance of a contract by the terms of which Aiken agreed to purchase and Mrs. Judd agreed to sell approximately 1,000 acres of land in Nolan County. Both parties made motions for a summary judgment and Mrs. Judd’s motion was granted. Aiken has appealed and contends the court erred in failing to grant his motion and in granting appellee’s motion. On November 14, 1966, the County Court of Nolan County rendered a judgment declaring Mrs. Judd to be an habitual drunkard and appointed her brother guardian of her person. The judgment also recites “ . . . and the Court further finds that at this time there is no necessity for the appointment of a guardian of the estate of Anna Lee Judd.”
We will try to follow the rules set forth in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965) and Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970) and cases cited therein in disposing of this summary judgment case.
The judgment declaring her an habitual drunkard presented a fact issue as to Mrs. Judd’s competency. The court did not err in refusing Aiken’s motion for a summary judgment. The Supreme Court in Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967) held:
“As above stated, the order appointing a temporary guardian for Holtzclaw was issued pursuant to Section 1.31, Texas Probate Code. That section authorizes a county judge to make an immediate appointment of a temporary guardian for a person of unsound mind in order to protect that person’s interests. The order was entered fifteen days prior to the execution of the deed. We think it, along with the orders committing him to a mental hospital, if introduced upon another trial, would be admissible as bearing on the fact question of his mental capacity at the time of the execution of the deed.”
Mrs. Judd contends that her adjudication constitutes a prima facie presumption of incompetence and at the time she executed the contract on September 28, 1970, she was “under a legal disability of such a nature as to render any contract of her making unenforceable.”
Aiken filed affidavits by attorney E. H. Lindsey in opposition to her motion for summary judgment. The Lindsey affidavits reveal the following facts: He personally handled the negotiations for Mrs. Judd that preceded the contract for the sale of her Nolan County ranch to Mr. Aiken; from his observation of her speech and her general demeanor, he was of the opinion that she was sober and entirely aware of her surroundings; during such negotiations she was able to converse with him on a rational and intelligent basis and was completely aware of the circumstances and possessed a good measure of business acumen; that he was personally aware of some of her business dealings and attached to his affidavit an agreement between her and her brother settling the estate of their father with the El Paso National Bank; he further stated that he was personally aware of her attempts to sell the property in question to her brother who was attempting to buy it from her; he further stated that he was personally aware of the fact that Mrs. Judd handled her own business affairs and that the only dominion her guardian of her person ever exercised over her was to sign papers in 1966 that resulted in her hospitalization for a short period of time. In Lindsey’s affidavit dated June 29, 1971, he stated that Mrs. Judd’s brother had offered her $55 an acre for her ranch and asked him to find a buyer who would be willing to give $65 an acre and that he was able to find such a buyer in Mr. Aiken. He further stated that during his many discussions, she never appeared to be intoxicated or in any way unaware of what was happening, and from her appearance and the other observations he made of her, he was of the opinion that she was in possession of her mental faculties and was sane.
We hold that Mrs. Judd has not discharged her burden of establishing as a matter of law that no genuine issue of fact exists relating to her competency.
The judgment is reversed and the cause remanded. |
sw2d_481/html/0943-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "PEDEN, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
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MID-CONTINENT LIFE INSURANCE COMPANY, Appellant, v. Mrs. Donna Mae HUSTON et al., Appellees.
No. 15918.
Court of Civil Appeals of Texas, Houston (1st Dist.).
June 1, 1972.
Rehearing Denied June 29, 1972.
Perry O. Barber, Jr., J. Donald Bowen, Houston, Baker & Botts, Houston, of counsel, for appellant.
Brown, Kronzer, Abraham, Watkins & Steely, Houston, W. James Kronzer, John B. Murphrey, Houston, of counsel, for ap-pellees.
PEDEN, Justice.
Venue matter. Appellees brought suit in Harris County, Texas, under the Oklahoma wrongful death statute to recover damages as a result of the death of Mr. Huston in an Oklahoma aircraft accident. Defendant Mid-Continent, an Oklahoma corporation, filed a plea of privilege to be sued in Potter County, Texas. After a hearing the trial court sustained the plaintiffs’ controverting plea, which asserted that under Subdivision 27 of Article 1995, Vernon’s Ann.Civil Statutes, venue was proper in Harris County.
The pertinent provision of Subd. 27 is that “Foreign corporations . . . may be sued ... in any county where such company may have an agency or representative . . .”
Mid-Continent’s point of error on appeal is that the trial court erred in overruling the plea of privilege in reliance on Subd. 27 because there was no proof that Mid-Continent had an agency or representative in Harris County, the county of suit. Under this no evidence point we discard all adverse evidence and give credit to all evidence that is favorable to the successful party, and indulge every reasonable conclusion favorable to appellees. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).
The facts are undisputed. Mid-Continent is an Oklahoma corporation authorized to do business in Texas. It has been doing business in Texas at all times material to this venue proceeding.
The parties agree that authorities interpreting the term “agency or representative” under Subd. 23 are applicable to Subd. 27 since there is no distinction between the term’s use in the two subdivisions.
In Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194 (1952), the Texas Supreme Court in ruling on a Subd. 23 case held:
“. . . in our opinion, the statute refers to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of ‘agency’ and the other of ‘representative.’ ”
Marion Tindall is the man whom the ap-pellees contend was and is an agent or representative of Mid-Continent in Harris County. They offered in evidence parts of his deposition and all of the deposition of Delos H. Yancey, Jr., of Oklahoma City, the vice president and college director of Mid-Continent. He testified that he supervises a group of salesmen who market the college plan, a program directed toward college students. He hires some agents, “but mostly I hire our managers, our general agents.” Marion Tindall is one of his general agents in Houston, Texas. Tindall has about six men in his Houston office; they are called career agents, and Tindall has an associate general agent in Austin and another in San Antonio. Yancey said Tindall’s title is general agent, but he used the term “manager” because he thought it would help the attorney to understand the relationship better. The company looks to him for supervision over the career agents in the Houston area and expects him to devote his entire time to developing Mid-Continent’s agency. He recommends career agents to the company and the company has power to veto any it doesn’t approve of. Tindall also has veto power over any career agents that Mid-Continent recommends to him. Mid-Continent expects the agent to use his own initiative in selecting a doctor to make the necessary physical examination if the client doesn’t select one. When the agent submits an application for insurance, he sends in his recommendation.
The insurance policies are to be delivered to the newly-insured clients provided they are in good health and from their observation of the client, both the general agent and the career agent can make the decision as to whether the policy is to be returned to the company or delivered. The general agent provides an office at his own expense. He is responsible for conserving Mid-Continent’s business. He represents the company in dealing with its policy-holders in the Houston area.
In his deposition Mr. Tindall testified that he is a general agent for Mid-Continent and writes a little bit of business through other companies. He was trained by Mid-Continent in Oklahoma City. He works purely on a commission basis, but has some fringe benefits such as group hospitalization and accident insurance.
He solicits purchasers of insurance. If they agree to buy it, he fills in a form and sends it to Mid-Continent. If the company approves it, a policy is issued and he receives a commission.
Mid-Continent pays his expenses to annual conventions. He lists himself in the Houston telephone directory as Mid-Continent Life, and he has done some advertising in which he used both his own name and Mid-Continent’s.
There is no regional organization that supervises his work. He works directly under Mr. Yancey.
Appellant’s position is that Tindall must have the power to contractually bind appellant before “agent or representative” is established, citing Texas Power & Light Co. v. Adamson, 203 S.W.2d 275 (Tex.Civ.App.—Texarkana 1947, no writ). That case held at page 276:
“It is sometimes difficult to distinguish between an agent or representative and a servant or employee. Anyone who does the slightest act for another might be the representative of such person for the performance of that limited service if we give the term its broadest meaning. In legal contemplation, however, ‘representative’ implies something more than that. It connotes the use of at least some discretionary authority; the taking the place of the principal and acting in the furtherance of his business; the power to bind the principal in a contractual sense. As used in the statute under consideration, we think the terms ‘agency’ and ‘representative’ are interchangeable. One of the distinguishing characteristics between an agent and a servant is discussed in the case of Talley v. Shasta Oil Company, Tex.Civ.App., 146 S.W.2d 802, 804, in an opinion by this court, from which we quote the following statement: ‘Agency, properly speaking, relates to commercial or business transactions, while service deals with matters of manual or mechanical execution; and the essential distinction is that the agent is employed to establish contractual relations between his principal and third persons, while the servant is not.’ ”
However, that holding was discussed and modified in Milligan, supra, 250 S.W.2d at page 198:
“But, whether the Texarkana court be correct or not in its thesis that an agency cannot exist without the power to contract for the principal, such power and its regular use in the very name of the principal as the contracting party are certainly the strongest indication that the principal is doing business through an agency . . .”
In summary, the depositions and exhibits reflect that Tindall’s responsibilities were to:
(1) Supervise the five or six men under him by guiding and helping them.
(2) Solicit and process applications for policies.
(3) Render to policy-holders of appellant all service incidental to the maintenance and care of appellant’s business.
(4) Attend conventions at the home office in Oklahoma and other designated places.
(5) Recommend career agents for employment.
(6) Send weekly progress reports.
(7) Use his discretion in determining whether the health of a newly-insured client is such that the new policy should be delivered to him.
We conclude that these duties and reponsibilities establish Tindall’s capacity as an agent or representative as contemplated in Subd. 27, and that appellee was not required to establish that Tindall had important powers to bind Mid-Continent contractually in order to maintain venue in Harris County, Texas. Pan American Petroleum Corp. v. Vines, 422 S.W.2d 764 (Tex.Civ.App.1967, writ dism.); Cotton Concentration Co. v. A. Lassberg, & Co., 433 S.W.2d 736 (Tex.Civ.App.1968, no writ); J. Weingarten, Inc. v. Heatherly, 450 S.W.2d 693 (Tex.Civ.App.1970, no writ).
Affirmed. |
sw2d_481/html/0946-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "COLLINGS, Justice.",
"license": "Public Domain",
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Jack BEYER, Appellant, v. Douglas W. COLLINSWORTH, Appellee.
No. 4534.
Court of Civil Appeals of Texas, Eastland.
May 12, 1972.
Richard D. Coan, Stephenville, for appellant.
Ben D. Sudderth, Comanche, for appel-lee.
COLLINGS, Justice.
This suit was brought by Douglas Collins-worth in Comanche County on November 10, 1971, seeking an injunction against the defendant, Jack Beyer. Beyer filed a plea of privilege to be sued in Erath County, the alleged place of his residence. On November 24, 1971, the plea of privilege was heard before the court. The pleadings on file at that time were: the plaintiff’s first amended petition, the defendant’s plea in abatement and plea of privilege, and the plaintiff’s controverting plea and first amended original petition.
In defendant’s plea of privilege he inadvertently omitted paragraph two, which is the usual clause to the effect “that no exception to the exclusive venue in the county of one’s residence provided by law exists in said cause.” The plea of privilege did assert that the defendant was not at the institution of the suit, nor at the time of the filing of the plea a resident of Comanche County and that at the time of the institution of the suit and the time of service of process therein, the residence of the defendant was, and at the time of the filing of the plea was and is in Erath County, and that his post office address was and is Route 4, Stephenville, Texas.
The plaintiff’s controverting plea contains a special exception to the plea of privilege asserting that the plea was insufficient as a matter of law. Plaintiff also relies upon Vernon’s Ann.Civ.St. Article 1995, Subdivision 10. Plaintiff did not seek to have the court rule on this exception but answered ready and rested on his pleadings, apparently relying on the alleged omission in the defendant’s plea of privilege. The defendant’s attorney then moved the court to hold as a matter of law that the plaintiff had not met the required burden of proof that the personal property was located in Comanche County as alleged by plaintiff. Thereafter, the defendant put on evidence supporting his plea of privilege. There was no cross examination or evidence to the contrary introduced by plaintiff’s attorney.
The statement of facts indicates that no mention was ever made in open court of the defect in the defendant’s plea of privilege except in plaintiff’s controverting plea. Notwithstanding the evidence in support of the plea of privilege presented by the defendant, the court, after discussion in chambers, which discussion is not in the record, overruled the plea. Jack Beyer has appealed.
The plea of privilege and the evidence introduced by the appellant Beyer show that he was not at the institution of this suit nor at the time of the filing of the plea of privilege a resident of Comanche County, and that at the time of the service of process herein, the residence of the appellant was, and at the time of the filing of the plea was, in Erath County, and at such time his post office address was and still is at Route 4, Stephenville in Erath County.
In 60 Tex.Jur.2d at pages 41-53, it is stated that “. . . the plea of privilege must be sustained if no evidence is introduced to show the truth of the allegations in the controverting plea.” See also Allied Finance Co. v. Butaud, 350 S.W.2d 958 (Tex.Civ.App.—Beaumont 1961, no writ hist.); Key v. Mineral Wells Investment Co., 96 S.W.2d 804 (Tex.Civ.App.—East-land 1936, no writ hist.); Applewhite v. Darr Equipment Co., 380 S.W.2d 717 (Tex.Civ.App.—Waco 1964, writ dism’d.); Pierce v. Ford Motor Co., 401 S.W.2d 355 (Tex.Civ.App.—Eastland 1966, writ dism’d.).
In the case of Ideal Baking Company v. Boyd, 417 S.W.2d 613 (Tex.Civ.App.—Tyler 1967, no writ hist.) it is stated as follows :
“The burden imposed on the appellee in the instant case is one the courts have predicated upon the belief that the defendant’s right to be sued in the county of his domicile is an invaluable right and this right should be vitiated only when the evidence clearly supports the maintenance of venue in some other county. The right to be sued in one’s own domicile is a right jealously guarded by the courts, and exceptions to the venue statutes must clearly appear. . . . Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to have the cause transferred to the county of his domicile.”
No evidence was submitted by appellee Collinsworth in the instant case. Appellant Beyer did introduce evidence and proof which clearly show that no property of appellant was located in Comanche County and that appellant did not reside in that county. In Jones v. Klein, 451 S.W.2d 788 (Tex.Civ.App.—Houston 1970, no writ hist.) it is stated that a plea of privilege can be amended to cure defects of form or substance and that a fatally defective plea cannot be treated as a nullity. In the instant case there was a defect in appellant’s plea of privilege but there was evidence in the record conclusively establishing that there was no exception to the defendant’s right to be sued in the county of his residence. The court therefore erred in overruling the plea of privilege.
The judgment of the trial court is reversed and judgment is rendered finding venue to be in Erath County and transferring this cause to that county for trial. |
sw2d_481/html/0948-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SHANNON, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
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TRANSPORT INSURANCE COMPANY, Appellant, v. William C. McCULLY, Appellee.
No. 11944.
Court of Civil Appeals of Texas, Austin.
June 14, 1972.
Rehearing Denied June 28, 1972.
Flahive & Ogden, T. P. Flahive, Austin, for appellant.
Byrd, Davis, Eisenberg & Clark, Terry. L. Weldon, Jack C. Eisenberg, Austin, for appellee.
SHANNON, Justice.
The primary question in this workmen’s compensation case is whether appellee, who had a heart attack on the job, suffered a compensable accidental injury.
Upon trial to a jury, judgment was entered in effect that appellee, William C. McCully, was totally and permanently disabled as the result of a heart attack which he sustained on the job in the course and scope of his employment with Braniff International. We will affirm that judgment.
Appellee suffered the heart attack on July 10, 1970 while working at the airport in Austin. His job with Braniff was not one performing manual labor as that term is traditionally understood. His job title was “Customer Service Agent” and involved three different duties which he performed on a rotating basis. Those duties were being in control of: (1) the forms desk, (2) air freight, and (3) communications and the ramp. A brief description of those duties follows.
A Customer Service Agent working at the forms desk keeps abreast of all weather news which he conveys to the flight crews. Also, he figures the weight load of each plane before take off.
One in charge of air freight handles customer requests for service and information which may come in person or by telephone. He is also in charge of all freight for a particular flight and computes the tariff for each shipment.
The duties of one in charge of communications and the ramp consists of sending and receiving all information pertaining to flights, and of keeping a log of this information. Also upon the arrival or departure of a plane he must be at the ramp to supervise and assist the unloading or loading.
Though each Customer Service Agent serves in each of these capacities on a revolving basis, each helps his fellow agents during rush periods. As a consequence, no matter what his duty on a particular day, an agent would most probably perform some tasks in each of the several capacities.
A resume of appellee’s activities preceding the heart attack follows. On July 10, appellee came to work at 2:45. Although he was at the forms desk he did a number of the other jobs since it was, according to him, “an unusually heavy day.” Among those extra chores was the loading of thirty or forty bags of luggage occasioned by the jamming of the conveyor belt. After loading this baggage, appellee returned to his desk and began writing out two domestic air freight shipments by hand as no typewriter was available. At the same time, appellee was talking to a man on the telephone about shipping a dog to Germany. During the same period there were seven or eight persons trying to make freight shipments, and there were two men from the incoming flight who were at ap-pellee’s desk demanding that appellee locate their lost baggage. At the ticket counter lines of customers had formed to the opposite wall.
All of these events happened in about two hours. About four fifteen or four forty-five appellee experienced a pain in his left shoulder and arm of such severity that he stopped what he was doing. After the initial pain, appellee felt “a little better” but in finishing up his work felt some chest pain. However, he did load another cart of bags, pulled it outside, and pushed an empty cart in. In response to a question which inquired if he experienced pain in loading the second cart of bags appellee replied that from the initial pain he continued to have pain.
After his half-hour dinner break, appel-lee returned to work hoping that he could make it and not wanting to leave his fellow agents with the heavy load. He left the job about fifteen minutes early, went home to bed, and was hospitalized for his heart condition the next morning.
The defense called Braniff’s local manager, Kenneth L. Rippenkroeger, who testified that although he had no specific recollection of the events of July 10, the statistics kept by Braniff showed that July 10 was an “average” day. Rippenkroeger did testify on cross-examination that appellee and his fellow agents did handle one hundred and one passengers with their baggage and personal problems, forty-one pieces of cargo and twenty-four mailbags, together with any lost baggage complaints, and any telephone calls during that time, and that all of this activity commenced and ended within a thirty-six minute period.
Appellant would characterize the question for decision as one of whether mental stress alone, extending for a two hour period with no specific incident, is a sufficient showing to sustain the judgment. Appellant answers the question in the negative, and says Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972) is controlling. We do not agree.
The facts in this case differ substantially from those in Olson. In Olson the plaintiff had three or four irritating or frustrating experiences on the job over a nineteen day period, and there was no showing of physical strain or overexertion. In the case at bar the events described above happened within a two hour period. Appellee also testified that he loaded and unloaded a considerable amount of baggage. Appellee had the severe pains immediately after the harassed two hour period.
The “undesigned, untoward event” in .this appeal was the appellee’s heart attack which he experienced about two hours after he went to work. The “definite time, place and cause” referred to in Olson is that two hour period of physical strain and mental stress which occurred immediately prior to the heart attack. Contrary to appellant’s argument, Olson does not require that the compensation claimant shoulder the near impossible burden of proving which specific task during the two hour period precipitated his attack. It is proof enough to show all of these happenings in addition to physical strain over the two hour period followed by physical pains to establish a compensable injury.
Appellant also complains that there was no evidence or insufficient evidence in reasonable medical probability to establish causation between appellee’s employment and his heart attack. Dr. Glen Journeay, appellee’s family physician, and Dr. Robert F. Anderson, appellee’s cardiologist, testified by deposition and in person relative to appellee’s heart condition. With respect to causation of appellee’s heart condition, Dr. Journeay testified, “Knowing Mr. Mc-Culley, I think it would be reasonable to say that his mental stress might very well precipitate relative insufficiency on the blood supply.”
Dr. Journeay further testified, “So, coming back to McCully, I think it is certainly possible that emotional stress could have precipitated this thing, I think it is even probable that it did.”
On cross-examination, Dr. Journeay was asked, “All right, let me ask you this question. Is it just as probable that Mr. Mc-Cully’s pipes just got filled up at this particular time, and without any excess emotional stress he had an infarct? Is that just as probable as the probable of the emotional stress?”
His answer was,
“I don’t think so, and I don’t think so for this reason. That I feel like he would have probably been experiencing anginal pain for some period of time prior to the infarction, with effort or what-not, if this had been a very gradual build-up. In other words, if the thing is gradually occluding, then we reach some stage at which he is going to have periods of relative insufficiency, he should start showing some anginal pain, he may go to an infarction. We don’t have any history of any angina so this suggests that the acute infarction was a discrete specific event that occurred. And this is the way I would interpret it rather than just a very gradual build-up.”
Appellant relies on Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966) and Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex.1969) both of which are workmen’s compensation cases involving the problem of proving causation between a job connected incident and a cancerous condition. In Myers it was stated that “Casual connection . . . must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture.”
Appellee argues plausibly that he made out a case under Myers. He contends that a fair construction of Dr. Journeay’s testimony is that in his opinion, based upon reasonable medical probability, appellee’s emotional stress caused his heart damage on July 10, and that being so, this medical testimony was sufficient to raise the issue of causation.
We prefer, however, to ground our decision on this point on the authority of Insurance Co. of North America v. Kneten, 440 S.W.2d 52 (Tex.1969). In that case the workman claimed total and permanent disability as the result of an injured heart allegedly caused by an electric shock. The medical testimony was that the electric shock “could have” been a contributing factor to the heart attack, and that it was a “strong possibility” that it was the cause of the attack. The defense argued that there was no evidence of causation. The majority opinion of the Supreme Court held, it seems, that the “possibility” testimony from the physician taken with the factual circumstances of the case were sufficient to raise the issue of causation. See Southern Methodist University, Mussle-white, Medical Causation Testimony in Texas: Possibility Versus Probability, 23 Sw.L.J. 622 (1969).
Appellant also assails the court’s charge by several points of error, one being that the court erred in submitting a definition of circumstantial evidence for the reason, appellant says, that in heart attack cases, casual connection is “one of science, determined by testimony of expert medical professionals.” An examination of appellant’s objections and exceptions to the court’s charge does not show that appellant objected to the inclusion of the definition of circumstantial evidence, and any complaint was consequently waived. Rule 272, Texas Rules of Civil Procedure.
Appellant also complains that special issue number one and the court’s definition of “heart attack” did not restrict the jury to finding a “heart attack” caused by mental stress only.
Special issue number one and the definition submitted by the court read as follows :
“Issue No. 1
Do you find from a preponderance of the evidence that William C. McCully had such heart attack on July 10, 1970 in the course of his employment with Bran-iff International?
A heart attack is in the course of employment if it is produced or precipitated by an employee’s work or the conditions of his employment. Otherwise a heart attack is not in the course of employment, even if it occurs on the job.
Answer ‘He did have a heart attack in the course of employment,’ or ‘He did not have a heart attack in the course of employment.’ ”
As appellee’s evidence demonstrated physical exertion, as well as mental strain, the wording of special issue number one and the accompanying definition were not erroneous.
Appellant charges, finally, that special issue number one does not track the pleadings. Appellee went to trial on his original petition which alleged generally that appellee “became incapacitated from performing the usual tasks of a workman.” Appellant filed no special exception to require appellee to plead his injury more specifically. Under the state of the trial pleadings, appellee is in no position to complain on appeal that special issue number one did not “track” the petition.
The judgment is affirmed. |
sw2d_481/html/0952-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "O’QUINN, Justice.",
"license": "Public Domain",
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George J. AUBIN, Appellant, v. Louis S. HUNSUCKER, Jr., Appellee.
No. 11915.
Court of Civil Appeals of Texas, Austin.
June 7, 1972.
Rehearing Denied July 5, 1972.
Palmer & Steed, James M. Steed, Austin, for appellant.
Stayton, Maloney, Black, Hearne & Babb, Douglass D. Hearne, Austin, for ap-pellee.
O’QUINN, Justice.
Louis S. Hunsucker brought this lawsuit against George J. Aubin in September of 1969 to recover on two promissory notes, one of which Aubin executed in 1967 for $16,300 and the other in 1969 for $13,965.
After trial without a jury, the trial court entered judgment denying Hunsucker recovery on the $16,300 note for failure of consideration because given in payment of a gambling debt and allowing recovery of $5,465 on the $13,965 note, plus attorney’s fees for $637.74.
Aubin as appellant complains that the trial court refused him leave to file a trial amendment pleading payment of $3,543.29 on the second note for $13,965.
Hunsucker as appellee complains under a counterpoint that the court erred in not allowing Hunsucker an additional recovery of $3,500 and attorney’s fees on a transaction the court found “so closely related in time to the gambling activities as to be tainted, and . . . therefore, void and unenforceable.”
Evidence was adduced early in the trial that Aubin, on June 6, 1969, gave Hun-sucker a check for $3,543.29, bearing the notation “loan repayment and interest,” and that Hunsucker had credited the payment on the $16,300 note, which expressly provided “no interest and no due date.” Hunsucker testified that he had agreed orally with Aubin not to press collection of the $16,300 note for two years, or until after August 30, 1969, in consideration that Aubin would then pay Hunsucker an additional $5,000.
It was shown also that Hunsucker had first noted credit for payment of the $3,543.29 on the $13,965 note, but had drawn a line through that notation and made the credit entry on the note for $16,300, which at that time was not due under their oral agreement by more than two months. Hunsucker testified earlier that neither he nor Aubin regarded the $16,300 note as collectible in court since it was given in payment of a gambling debt.
During cross-examination of Hunsucker, counsel for Aubin sought to draw from Hunsucker an admission that the payment of $3,543.29 did not “go on that note [$16,300] at all but, in fact, went on the April 24th note [$13,965, dated April 24, 1969] ...”
Counsel for Hunsucker objected, pointing out that Hunsucker had pleaded payment of the $3,543.29 on the note for $16,300, and that Aubin had pleaded only failure of consideration as to each of the two notes and had not pleaded payment of $3,543.29 on either note. Aubin then sought to file a trial amendment setting up payment of the $3,543.29 on the $13,965 note. The trial court refused to grant leave to file the trial amendment.
The court stated, “No, sir, you have had ample time to plead. You had notice apparently that the payment was on the $16,000.00 note. If you disagree with that, why did you not plead earlier that the payment was on the $13,000.00 note? * * * * I am not going to let you now plead that the payments which he pleaded was on the $16,000.00 note was in fact on the $13,000.00 note. You may examine him to test his credibility.”
In the course of further cross-examination Hunsucker testified that the note for $13,965, dated April 24, 1969, was due in twenty-three days from its making, and that interest on the following June 6, when payment of $3,543.29 was made, would amount to $32.99. Aubin testified later in the trial that when he handed Hunsucker the check for $3,543.29, Hunsucker calculated the interest and gave Aubin “about twelve dollars" in money in correction of Aubin’s calculation.
Aubin testified that when he paid the $3,543.29 to Hunsucker, he told Hunsucker “. . . that was repayment of the cash he advanced some forty-odd days prior to this,” an advancement both parties admitted was part of the consideration for the $13,965, note, .Objection was made to Au-bin’s testimony. The court stated, “I will admit the evidence, but not on the basis . that this payment can be credited on the thirteen thousand dollar note.”
After the trial, Aubin sought, by motion to offer additional evidence pursuant to Rule 270, Texas Rules of Civil Procedure, to present evidence found in the oral deposition of Aubin, taken June 11, 1971, about two weeks before trial. By deposition Au-bin had testified that the payment of $3,543.29 was on the $13,965 note, with interest from April 24, the date of the note, and that with this payment he discharged all valid obligations for money advanced by Hunsucker, as opposed to gambling losses.
The trial court denied Aubin’s motion to offer additional evidence and stated, “This case has been on file since September of 1969. I believe that is plenty of time for the Pleadings to be in shape. I am not going to reopen the case for the purpose, in effect, of bolstering your request for a Trial Amendment. I am going to deny the Motion.”
Under Rule 66, Texas Rules of Civil Procedure, the trial court may allow pleadings to be amended in course of trial if evidence objected to is not within issues made by the pleadings or when defect, fault, or omission of form or substance in a pleading is called to the court’s attention. The limits of the Rule are best stated by setting out Rule 66 in full:
“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.”
Each case involving action of the trial court on motion for leave to file a trial amendment will be decided under the facts peculiar to the case, but it is settled that the matter of granting leave to file a trial amendment “is addressed to the sound discretion of the trial court,” and the court’s order will not be set aside in the absence of clear showing that the court abused its discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948).
In determining whether the trial court’s refusal of the proffered trial amendment was harmless error under Rule 434, Texas Rules of Civil Procedure, we are bound to consider the entire record. Couder v. Gomez, 373 S.W.2d 345, 349 (Tex.Civ.App. El Paso 1963, affd. in part, rev. and rem. in part on other grounds, 378 S.W.2d 14).
Under the rule of Vermillion, as well as the holdings in other Texas cases, it is established that the discretion of the trial court is to be exercised liberally in favor of amendments in the interest of justice. Vermillion v. Haynes, supra; Butcher v. Tinkle, 183 S.W.2d 227, 229 (Tex.Civ.App. Beaumont 1944, writ ref. w.o.m.); Walker v. Hubert, 337 S.W.2d 390, 391 (Tex.Civ.App. Austin 1960, no writ); Galaviz v. Langdeau, 352 S.W.2d 352, 355 (Tex.Civ.App. Austin 1961, no writ).
We have concluded that under the facts of this case, as in Vermillion, “both the spirit and intent of Rule 66 required that the amendment be permitted.”
The trial court properly excluded testimony in behalf of Aubin for the purpose of showing partial payment, since payment was not pleaded as required under Texas Rules of Civil Procedure, Rules 94 and 95. (44 Tex.Jur.2d Payments, sec. 53, and cases cited). The evidence the court permitted Aubin to introduce, in attacking the credibility of Hunsucker as a witness, was substantially the same that Aubin might have offered as proof of payment on the note for $13,965. The identical testimony had been discovered by Hunsucker when Aubin’s deposition was taken prior to trial. Aubin’s position on the matter of payment was made entirely clear to Hunsucker before trial, except by a pleading affirmatively setting up the defense of payment.
Aubin’s amendment sought only to assert a defense in law to facts already established, and, unlike the effort in Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954), did not seek to change the factual basis of the lawsuit.
Hunsucker argues that “. . . the real issue before this Court is whether Au-bin . . . is to be permitted to take advantage of the policy expressed in Rule 66 over the policy expressed in Rules 94 and 95.” Hunsucker relies on the holding by the court of civil appeals in Trimble v. Farmer, 296 S.W.2d 580, 587 (Tex.Civ.App. Fort Worth 1956, rev. in part, affd. in part, 157 Tex. 533, 305 S.W.2d 157), in which the intermediate court found no abuse of discretion “in connection with [Rules] 63 and 67, and additionally it is to be noted under the provisions of T.R.C.P. 95 that intervenor had the obligation to file a plea of payment as a predicate to the right of introduction of any proof of payment.”
The Supreme Court, in affirming in part and in part reversing the judgment, did not consider the matter of the trial amendment or the relative weight to be given to Rule 66 and the Rules requiring affirmative pleas. In a later case the Supreme Court did examine Rule 66 and Rule 94 in determining whether the trial court’s refusal of leave to file a trial amendment was properly held by the court of civil appeals to be abuse of discretion.
The Supreme Court affirmed the judgment of the court of civil appeals in Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.Sup.1967), but because evidence of failure to mitigate damages by care and treatment of personal injuries was admissible under a general denial, and an affirmative plea under Rule 94 was not a prerequisite to proof of failure to mitigate, the holding of the court of civil appeals, that the trial court erred in refusing leave to file a trial amendment, was disapproved and found to be error. We find nothing in this case, or in the Rules, which suggests that methods for amending pleadings under Rule 66 and requirements for affirmative pleading under Rules 94 and 95 are in conflict, or that because Rules 94 and 95 require specified defensive matters to be specially pleaded, these Rules render Rule 66 inoperative when a party fails to file such pleading.
Rule 66 does not condition the granting or refusal of leave to amend on the diligence with which a party’s attorney has prepared the case. The Rule plainly directs that “. . . the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action . . . upon the merits.” (Emphasis added)
Hunsucker pleaded payment on the $16,300 note and knew from Aubin’s deposition that Aubin was claiming that payment had been on the $13,965 note. The evidence adduced in attacking Hunsucker’s credibility as a witness on the subject of payment was of the same nature as proof of payment would have been under Aubin’s pleadings if the trial amendment had been allowed. No delay could have resulted from granting leave to amend, since all witnesses essential to proof or rebuttal of the issue were present at the trial. Hun-sucker made no attempt to show that he would have been prejudiced in maintaining his action upon the merits, and, of course, Aubin’s position on payment assuredly came as no surprise to Hunsucker.
From examination of the entire record, we conclude that in refusing Aubin leave to file a trial amendment pleading that payment of the $3,543.29 was on the note for $13,965, the trial court abused the discretion allowed under Rule 66 and that this constituted reversible error.
We now consider Hunsucker’s counterpoint that the trial court erred in failing to allow Hunsucker judgment for $3,500, with interest and attorney’s fees, out of the note for $13,965 dated “. . . April 24, 1969, because this $3,500 was in renewal and extension of a valid and legal promissory note dated August 30, 1969 [sic], that had been given for a cash loan and that was capable of constituting a separate cause of action which showed no proof of illegality.”
We do not find in the record a note for $3,500 dated August 30, 1969, which date, of course, was subsequent to the making of the $13,965 note on April 24 of that year. In examining the record and Hunsucker’s argument, we assume that the $3,500 note mentioned in the assignment of error actually was dated August 30, 1967, which was also the date of the $16,300 note. We will examine and dispose of the point on that premise.
Both Hunsucker and Aubin testified that prior to the making of the $16,300 note on August 30, 1967, Aubin had paid Hunsucker in cash $20,000 to $25,000. Aubin testified that the $16,300 note and the note for $3,500, both dated August 30, 1967, were . . executed simultaneously, I mean at the same time, one after the other on that date.” Aubin told Hunsucker that he was getting married and had to have some cash and that Hunsucker had won all Au-bin’s cash. “Anyway, the transaction as it worked out,” Aubin testified, “was that he would take $3,500.00 of the winnings that I had just paid him and refund it to me.”
Hunsucker gave Aubin a check for $3,500 and Aubin signed a note for that amount and at the same time signed the note for $16,300. The men went to the Capital National Bank and exchanged the check for a cashier’s check payable to Au-bin. Aubin testified that the $3,500 was definitely money Aubin had given Hun-sucker.
The trial court, after hearing the testimony of both parties, concluded, and stated in the conclusions of law, that the $3,500 note executed on August 30, 1967, . . was so closely related in time to the gambling activities between [the parties] as to be tainted, and . . . therefore, void and unenforceable.”
Hunsucker relies in the main on Seibert v. Sally, 238 S.W.2d 266 (Tex.Civ. App. Galveston 1951, no writ), in contending that “the temporal relationship between the gambling activities which may have been occurring between Hunsucker and Aubin do not void this note.” In Seibert the court held that the note which the court found to be a valid obligation was not based on a gambling debt. The note was given in repayment of money borrowed from a third party which the borrower subsequently lost in a card game. In the case before us the trial court was justified in finding, as was found, that Au-bin paid Hunsucker “a gambling debt in excess of $3,500” and that Hunsucker gave Aubin a check for $3,500 “after . . . [Aubin] had just paid the gambling debt.” The making of the note for $3,500 “was so closely related in time to the gambling activities” as to make the note tainted and unenforceable.
We are of the view that the facts of this case are distinguishable from Seibert. We find no error in the trial court’s action in not awarding Hunsucker recovery on the note of August 30, 1967, in the amount of $3,500. Hunsucker’s counterpoint is overruled.
The record discloses that all issues of this lawsuit as pleaded were fully developed at the trial on the merits. It appears that the error of the trial court, in refusing Aubin leave to file a trial amendment pleading payment on the note for $13,965, affects a part of the matter in controversy and that the issues are severable. We will reverse and remand for new trial only as to that part of the judgment affected by that error. Rule 434, Texas Rules of Civil Procedure; Harder v. Sanders, 155 Tex. 149, 284 S.W.2d 144 (1955).
We reverse the judgment of the trial court and remand the cause for further proceedings on the issue of whether payment of $3,543.29 was made on the $16,300 note or on the $13,965 note and for determination of appropriate attorney’s fees and interest as provided in the applicable promissory note.
Judgment reversed and cause remanded for retrial on issue of payment.
Reversed and remanded with instructions. |
sw2d_481/html/0958-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Herbert J. MEYER, Appellant, v. Betty Jo Meyer BILLINGS, Appellee.
No. 11875.
Court of Civil Appeals of Texas, Austin.
June 14, 1972.
Herbert J. Meyer, pro se.
Harold L. Coit, Austin, for appellee.
PER CURIAM.
The district court enjoined Herbert J. Meyer, appellant, from calling, visiting, or otherwise communicating with appellee pending final disposition of appellee’s suit to annul her marriage, which she alleged she would not have entered into but for duress practiced by the bridegroom in concert with appellant, who is appellee’s father.
Meyer has appealed and brings five points of error. We will overrule all points of error and affirm the judgment of the district court.
Appellant and appellee’s mother were divorced under judgment entered May 5, 1967, which ordered appellant to contribute $100 per month to support of appellee, a daughter of that marriage, then about 15 years of age. Custody of appellee was placed by the court in appellee’s mother. The divorce judgment did not provide a time for terminating support payments.
Appellee attained age eighteen in June of 1970, and appellant ceased making support payments. Appellee’s mother on September 3, 1970, filed a motion to revise judgment in the divorce case and petitioned for support payments of $200 per month. In her motion, petitioner alleged that the daughter is a child requiring custodial care as contemplated under Article 4639a, Vernon’s Ann.Civ.Sts. The record shows that appellee is mentally handicapped and attends public schools as a special education pupil.
Before appellant had been served with notice of the pending motion but after he had learned of the motion, appellant picked up his daughter at school in Austin and took her to Oklahoma on September 14, 1970, where she was married next day to Eddie Billings. The record shows that Billings is about 34 years old and a graduate of a school for mentally retarded boys. Billings has learned to drive an automobile and has a job.
While Meyer was away on a trip to Mexico, appellee left Billings and returned to her mother in Austin. The suit for annulment was filed March 30, 1971. Thereafter Meyer filed a petition in interven- • tion, which appellee opposed and petitioned the court to enjoin Meyer from seeking . . through argument and personality domination ... to induce her to return to Eddie Billings.”
The district court issued a restraining order against Meyer, and hearing on temporary injunction was held May 5, 1971. Final judgment granting a temporary injunction was entered June 18, 1971.
In ordering the restraint of Meyer continued, the trial judge stated:
“Because I have just heard here the most incredible testimony that I have ever heard in all my lifetime, because I have been incensed by the conduct of the so-called restrained party here in the courtroom, his attitude with reference to the very grave and tragic problem this family confronts, and the restrained party has indicated that he has no responsibility nor humanity about him, and I don’t want this little child exposed to him in any possible manner; and for that reason, the restraining order is continued in effect.”
Appellant Meyer’s complaint under point one that the verification by affidavit of appellee’s petition for injunction is defective has been fully waived. Meyer did not except at a time when the omission of the clause “and such allegations are true and correct” could be supplied by amendment, and did not complain prior to rendition of judgment. McKee v. City of Mount Pleasant, 328 S.W.2d 224 (Tex.Civ.App. Texarkana 1959, no writ). Meyer twice agreed to continuation of the restraining order. The judgment was granted after full hearing in which Meyer participated without objecting to the state of the affidavit, and the final decree will not be affected by the defect in the verification. Wilson Finance Company v. State, 342 S.W.2d 117 (Tex.Civ.App. Austin 1960, writ ref. n. r. e., motion dismissed 348 S. W.2d 639).
We have examined with care the transcript of the testimony and the entire record in this case. Meyer’s complaints under the last four points of error are without merit. The record demonstrates that the trial court properly granted in-junctive relief. The court’s action was supported by competent evidence and was based on pleadings clearly giving notice of appellee’s fears that she would be, for the second time, forced into an improvident union with a person she did not want, unless by order of the court a determined and unfeeling father, no longer willing to contribute to his daughter’s support, could be enjoined from forcing his will upon her less resolute and child-like mind.
All points of error are overruled. Judgment of the district court enjoining appellant is in all things affirmed.
Affirmed. |
sw2d_482/html/0001-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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BIG MACK TRUCKING COMPANY, Inc., Appellant, v. Lucy DICKERSON, a Feme Sole, et al., Appellees.
No. 15915.
Court of Civil Appeals of Texas, Houston (1st Dist.).
June 8, 1972.
Rehearing Denied June 29, 1972.
Fulbright, Crooker & Jaworski, James B. Sales, Arno W. Krebs, Jr., Houston, for appellant.
Miller, Gann & Perdue, Jim M. Perdue, Robert A. Berry, Houston, for appellee.
COLEMAN, Justice.
This is a death action in which actual and exemplary damages are sought. After a jury trial judgment in the sum of $220,000.-00 was entered for the plaintiffs. The jury found gross negligence, but awarded nothing as exemplary damages. The most interesting question involved in the case is the construction to be given Section 12g of Article 8306, Vernon’s Ann.Civ.St. This section provides that where an employer seeking to comply with the Workmen’s Compensation Act collects any part of the premium for the policy of compensation insurance from his employees, any employee or his legal beneficiary “shall be entitled to all the benefits of this law and in addition thereto shall have a separate right of action to recover damages against such employer without regard to the compensation paid or to be paid to such em-ployé or beneficiary under this law . . .”
Willie Dickerson was fatally injured while in the course and scope of his employment for appellant as a truck driver. He had parked his truck and was standing behind it. A fellow employee parked another truck behind him and left it unattended. The unattended truck rolled into Dickerson and his truck. Appellees were paid Workmen’s Compensation death benefits by the appellant’s compensation carrier. Subsequently this suit was filed against Ormand Leday, the driver of the truck which struck Dickerson, and appellant, his employer.
In answer to the issues submitted the jury found that Leday was an employee of appellant on the occasion in question; that he knew that the brakes on his truck were defective; that he was negligent in parking his truck behind Dickerson’s truck; and that such negligence was a proximate cause of the accident; that Leday failed to warn Dickerson of the defective brakes; that such failure was negligence and a proximate cause of the accident; that appellant had withheld from Dickerson’s wages premiums to be paid on Workmen’s Compensation insurance. Appellees dismissed their suit as to Leday and only the employer has appealed.
Appellant attacks the issues on negligence by “no evidence,” “insufficient evidence,” and “contrary to the great weight and preponderance of the evidence” points. The contention is that the only evidence bearing on these issues is hearsay and, therefore, incompetent either to raise the issues or to support the answers thereto.
The testimony relating to these issues was given by David Donald Stiles, Jr., appellant’s vice president, and Henry Har-well, the police officer who investigated the accident. Both witnesses testified as to statements made to them by Leday after the accident.
The accident happened in Waco, Texas. Mr. Stiles testified that after Leday returned to Houston he talked to him about the accident. Leday told him that he parked his truck behind Dickerson’s and went off and left it; that his truck rolled forward and crushed Dickerson against the back of Dickerson’s truck.
This testimony was admitted without objection:
“Q. . . . insofar as what he told you after the accident, he did tell you, did he not, that he had not been maintaining proper air pressure P
“A. He said he was having air pressure troubles, yes, sir.
“Q. And did you take it by what he said that he was not maintaining 120 pounds of air pressure as he needed to maintain this braking system?
“A. Well, right.”
Hearsay testimony, whether objected to or not, does not constitute evidence of probative force unless it is admissible under an exception to the hearsay rule. This testimony was offered as proof of the facts stated and constitutes hearsay testimony. One of the well recognized exceptions to the hearsay rule is that admissions of a party may be received as substantive evidence. An admission is defined as a statement made by a party to an action, or by one on his behalf, which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1953).
An agent’s statement of fact made within the scope of his authority, express or implied, is usually received in evidence against his principal. In the instance of implied authority “the rule is usually stated thus: The declarations or statements of an agent are admissible against his principal when they accompany an authorized act or are closely enough connected with it to be considered a part of the res gestae. . . A more accurate statement of the rule would be: The assertions of an agent are admissible against his principal when made within the scope of the agent’s express or implied authority to make assertions.” McCormick and Ray, Texas Law of Evidence (2d Ed.), V. 2, § 1164, pp. 56-57.
In his testimony Stiles reported his conversation with Leday. The facts reported would not constitute an admission by Stiles since he did not adopt the statement, but merely reported the conversation. Leday was authorized to report the facts concerning an accident in which he was involved to the vice president of the company by whom he was employed. His statement constituted an admission and was properly admitted into evidence against his principal. West Texas Produce Co. v. Wilson, 120 Tex. 35, 34 S.W.2d 827 (1931); J. Weingarten, Inc. v. Reagan, 366 S.W.2d 879 (Tex.Civ.App.—Waco 1963); Argonaut Southwest Insurance Company v. Morris, 420 S.W.2d 760 (Tex.Civ.App.—Austin 1967, writ ref., n. r. e.).
This testimony is sufficient to support the findings that Leday was negligent in parking his truck behind the one driven by Dickerson, and that such negligence was a proximate cause of the accident. It is not necessary to determine whether the statement made to Officer Harwell was also admissible as res gestae.
Appellant’s First and Second Points of Error submit that the trial court erred in overruling its objection to Special Issue No. 10 and in submitting it to the jury because there was no evidence, or insufficient evidence of probative force, to establish that Workmen’s Compensation premiums were withheld from the wages of Willie Lee Dickerson. These are “no evidence” points. Appellant’s Third Point is that the Jury’s answer to that issue is so against the great weight and preponderance of the evidence as to be manifestly unjust.
The only testimony concerning the payment of these premiums was given by Mr. Stiles. When he was called to the witness stand he was told by counsel for appellees that he would be asked substantially the same questions as he had been asked when his deposition was taken. He was given a copy of the deposition and was told that he was free to use it to refresh his recollection.
That portion of Mr. Stiles’ testimony touching on the payment of premiums for compensation insurance reads:
“Q. Now, then, insofar as his pay is concerned, he is getting $200.
When Big Mac goes to pay him, would they hold anything out of that?
“A. Yes, sir.
What would they hold out of it? a
Withholdings, FICA. <
What else? a
That’s about it. <
They held out workmen’s compensation too, didn’t they? a
Sir? >
They held out workmen’s compensation premiums, too, didn’t they ? ©
I can’t say for sure. I don’t know. >
Well, look at page 7 of your deposition. ©
MR. WEATHERLY: They paid them. They didn’t hold them out.
We paid the workmen’s compensation on him, yes, sir. It wasn’t held out of his salary. >
(By Mr. Perdue) It says here, ‘Nothing other than workmen’s compensation — ’ a
‘Question: Would Big Mac hold out anything from the money that was to be paid Dickerson?’
Am I correct? correctly ? Did I read that
What would be held from his check would be withholdings, FICA. Big Mac Trucking Company would pay the withholding tax, and so forth. A.
“Q. Didn’t you testify here at page 7 of your deposition that the things they would hold out were withholding, social security and workmen’s compensation premiums ?
“A. I did not understand the ‘workmen’s compensation premiums.’ No, sir, I did not understand it at that time.
“Q. Are you changing that testimony?
“A. I am saying that I misunderstood at the time, sir.
Then I asked, the next question: ‘The only thing that you would hold out would be social security, of course, the income tax which you are required to withhold and then something in connection with some workmen’s compensation premiums?’ and what did you answer? At the top of page 8. iO
‘Right.’ <
‘Right.’ And isn’t it true that later on in your deposition you testified again that you withheld workmen’s compensation premiums? a
We will get to that in a bit, but isn’t it true you testified at another place in the deposition that you did ?
I don’t know, sir. >
Well, this deposition was taken back in December of 1968, was it not? lO
Yes, sir. >
And it was taken at a time when these facts were fresh on your mind? ©
Yes, sir. >
“Q. Is there anything that has happened since then to make you — something unusual that has been brought to mind so that you want to change your testimony in that regard?
“A. No, sir, not at all.
“Q. Do you stand by the testimony you gave under oath to an official court reporter just as this is an official court reporter here?
“A. Yes, sir.
“Q. And that testimony is true and correct ?
“A. Yes, sir.”
Appellant contends that the deposition testimony, as an impeaching statement, is not substantive evidence and cannot raise an issue for the jury. The testimony of Mr. Stiles, an officer of the defendant corporation, must be viewed as that of a party to the action. A statement made by a party to an action amounting to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims is an admission. Such an admission is admissible as an exception to the hearsay rule and constitutes affirmative substantive evidence. Edwards v. Osman, 84 Tex. 656, 19 S.W. 868 (1892); In re Marsh, 344 S.W.2d 251 (Tex.Civ.App.—Amarillo 1961, writ ref’d, n. r. e.); Taylor v. Owen, 290 S.W.2d 771 (Tex.Civ.App.—San Antonio 1956, writ ref’d, n. r. e.).
The conflicting testimony of the witness Stiles presented a question of fact for the jury. The probative force of the statement that something was held out of Dickerson’s check for workmen’s compensation premiums is strengthened by the circumstance that the records and can-celled checks were in appellant’s possession and were not introduced into evidence. A review of all the evidence presented for the consideration of the jury fails to convince us that the answer made by the jury is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The evidence that part of the Workmen’s Compensation premium was deducted from Dickerson’s check was given in a deposition prior to trial. At the trial the witness first testified that he did not know whether such a deduction was made, then after prompting by one of the lawyers in the case he said that no such deduction was made. Thereafter when confronted by the deposition testimony he said that he did not understand the question, and finally that his deposition testimony was true. In his testimony at the trial the witness was uncertain and confused. This testimony cannot be held to have destroyed the effect of his previous admission.
The provision of Section 12g, Art. 8306, V.A.C.S., with which we are concerned, provides, under circumstances here present, that the employee shall be entitled to “all the benefits of this law and in addition thereto shall have a separate right of action to recover damages against such employer without regard to the compensation paid . under this law . . . ”
Appellant, noting that this is as to the employer a penal provision, would have us apply a rule of strict construction and hold that the “separate right of action to recover damages” is restricted to the damage resulting to the employee from the act of withholding the insurance premium, which, it says, would be the amount of the premium withheld. We cannot agree with this position. The obvious purpose of granting the action for damages was to discourage the employers from passing on to the employees the cost of the insurance. Section 12g, supra, makes it unlawful for an employer to collect any part of the premium for such insurance from his employees. The right to sue for the return of money unlawfully withheld from an employee would exist apart from the provision of the act under scrutiny. Were this the only penalty there would be no disadvantage to the employer. The use of the words “without regard to the compensation paid” together with the fact that the act is designed to compensate an employee for injury or death resulting from accidental injury, leads to the conclusion that the right of action granted by this Section is the right to recover the actual damages sustained by the employee or his “legal beneficiary” as the result of an injury sustained by the employee or his death resulting therefrom. See McRae v. Lindale Ind. School Dist., 450 S.W.2d 118 (Tex.Civ.App.—Tyler 1970, writ ref’d, n. r. e.).
The “right of action to recover damages” must be held to mean the right of the employee, or his beneficiary, to resort to the courts of this state to show that he has sustained damage by reason of the fault of the employer, or of one for whose actions he is legally responsible, otherwise the act would be unconstitutional. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916).
Appellant takes the position that if ap-pellees have a right of action to recover damages by reason of the death of the employee under the statute, the right preserved is the common law action of an employee against his employer. At common law the employer was not liable for damage to an employee caused by the negligence of a fellow employee. Middleton v. Texas Power & Light Co., supra. The verdict of the jury established that the accident resulting in the death of Dickerson was proximately caused by the negligence of Leday, a fellow employee.
Art. 8306, V.A.C.S., provides:
“Section 1. In an action to recover damages for personal injuries sustained by an employé in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:
“2. That the injury was caused by the negligence of a fellow employé.”
Section 3 of the Act provides that neither an employee of a subscriber nor the legal representatives of a deceased employee shall have a right of action against the employer or his agent, servant or employee for damages for personal injuries or injuries resulting in death.
Section 3a provides that an employee of a subscriber shall be held to have waived his right of action at common law or under any statute of this state to recover damages for injuries sustained in the course of employment unless he reserved such right by giving the employer a notice in writing at the time of his contract of hire of his election to do so. This section then provides: “ . . . Any employé of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives have his or their cause of action for such injuries as now exist by the common law and statutes of this State, which action shall be subject to all defenses under the common law and statutes of this State.”
Section 4 provides that employees of non-subscribing employers “shall be entitled to bring suit and may recover judgment against such employers, or any of them, for all damages, sustained by reason of any personal injury received in the course of employment or by reason of death resulting from such injury, and the provisions of section 1 of this law shall be applied in all such actions.”
The various provisions of Article 8306 must be construed in the light of the general purposes of the Act as gathered from all of its provisions. Every part of the Act shall be given effect if reasonably possible. Statutes should be given a reasonable and not a strained construction Consumers’ Gas & Fuel Co. v. Erwin, 243 S.W. 500 (Tex.Civ.App.—Ft. Worth 1922, writ ref’d.); Calvert v. Phillips Chemical Co., 268 S.W.2d 478 (Tex.Civ.App.—Austin 1954, writ ref’d.); Batson-Milholme Co. v. Faulk, 209 S.W. 837 (Tex.Civ.App.—Galveston 1918, writ ref’d.).
Big Mack Trucking Company, Inc., was a subscriber as defined in the Act, The appellees were paid Workmen’s Compensation death benefits by appellant’s compensation insurance carrier. Whether or how the premiums were paid to the insurance company is immaterial in determining appellant’s status as a subscriber. Lejeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App.—Beaumont 1966, err. ref., n. r. e.).
The fact of payment and acceptance of death benefits under the Act establishes the fact that Dickerson did not give notice of an election to retain his common law rights as provided in Section 3a of the Act, ibid. This is a cause of action created by Section 12g of the Act. Except for the provisions of that section the cause of action here asserted would be unavailable by reason of Section 3 of the Act. Section 3a is not applicable to this action because Dickerson was an employee of a subscribing employer, and had waived his right of action at common law. For the same reason Section 4 does not apply. It is not contended that this case falls within the exceptions found in Section 2.
Section 1, however, by its terms applies to all actions to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained. Since this is an action for death resulting from personal injury sustained by an employee in the course of his employment, it is not a defense that the injury was caused by the negligence of a fellow employee.
Appellant contends that Art. 8306, Section 12g, V.A.C.S., as applied by the trial court is unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States.
The constitutionality of this statute was held by the Supreme Court of Texas in Middleton v. Texas Power & Light Co., supra. While Section 12g was not discussed, the court specifically dealt with Section 1, saying, “. . . But no one has a vested interest in the rules, themselves, of the common law; and it is within the power of the Legislature to change them or entirely repeal them . . . ” The court also said: “A legislature may in proper instances prescribe duties and penalize their breach through an authorization for the recovery of consequent damages. But it is wholly without any power to deny the citizen the right of making any defense when sued in the courts ...”
It was a purpose of the legislature in enacting Section 12g to penalize employers who pass on the cost of Workmen’s Compensation insurance to their employees. They elected to do this by giving to such employees the right to secure full compensation for the injuries which they might sustain by reason of the negligence of their employer. The employer’s immunity from suit, created by legislative act, is thus withdrawn by legislative act. His common law defenses are abolished. The Act applies to all employers. Appellant could not have been held liable for the compensatory damages except for its voluntary act of withholding premiums for compensation insurance in violation of a valid law, and then only after negligence on its part is established. That the amount of damages assessed will depend on the loss suffered cannot be held unjust or unreasonable. The Act as here construed does not deprive appellant of its property without due process of law, nor deny to it the equal protection of the law. The Act is not capricious or arbitrary, nor does it unreasonably discriminate against a class of which appellant is a member. Allied Stores of Ohio v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Bjorgo v. Bjorgo, 402 S.W.2d 143 (Tex.1966).
Other points of error have been presented and fully considered by the court. They are overruled for reasons implicit in the preceding discussion of the specific points mentioned.
The judgment is affirmed. |
sw2d_482/html/0009-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Billy Wayne McMILLAN, Appellant, v. Daniel I. FELSENTHAL, Appellee.
No. 616.
Court of Civil Appeals of Texas, Tyler.
May 18, 1972.
Rehearing Denied June 15, 1972.
Badders & Keeling, C. A. Keeling, Na-cogdoches, for appellant.
Smead, Roberts, Harbour, Smith, Harris & French, Jerry S. Harris, Longview, for appellee.
MOORE, Justice.
This is an appeal from a summary judgment. The action is in tort. As grounds for a cause of action, plaintiff alleged that for many months prior to February 26, 1971, defendant begin to visit a lounge owned by him and his wife, where his wife worked as a bartender; that the defendant intentionally set out to seduce and have sexual intercourse with his wife; and that he finally accomplished his purpose during the early morning hours of February 26, 1971, when he took plaintiff’s wife to a lakehouse and kept her there until approximately 6:30 a. m. in the morning. Plaintiff further alleged that as a result of the defendant’s intentional and wrongful acts, he was deprived of the services, affections, and consortium of his wife, Mary Ann McMillan; that a trespass was committed by the defendant upon the plaintiff’s rights to the affection, love, consortium, and exclusive sexual relationship with his wife; that the defendant alienated the affections of the said Mary Ann McMillan; and that defendant’s conduct was the controlling cause of the separation between him and his wife and his loss of consortium. His prayer was for actual as well as punitive damages. Defendant denied generally the allegations of the petition. Defendant also filed a motion for summary judgment pursuant to Rule 166-A, Texas Rules of Civil Procedure, alleging that the pleadings, depositions, and affidavits on file before the court showed that no material issue of disputed fact existed upon plaintiff’s cause of action for “alienation of affections” and therefore defendant was entitled to a summary judgment as a matter of law. Defendant specifically alleged in his motion that no disputed issue of fact existed upon plaintiff’s cause of action for “alienation of affections” because both plaintiff and his wife gave deposition testimony to the effect that the wife’s affections had not been alienated. After a hearing the trial court granted a summary judgment in favor of the defendant denying plaintiff any of the relief under any of the allegations in his petition. Plaintiff duly perfected this appeal.
By six points of error plaintiff urges that the judgment must be reversed and remanded. In essence, he contends that the trial court erred in granting defendant a summary judgment because in so doing the trial court refused to recognize that a cause of action for criminal conversation exists under the laws of this State. He further urges that the trial court erred in failing to construe his pleadings as stating a cause of action for criminal conversation and in failing to hold that the evidence raised a disputed issue of material fact upon his alleged cause of action for criminal conversation. We sustain plaintiff’s contention and accordingly reverse and remand the cause for trial on the merits.
The legal basis of all causes of action arising from situations of this sort springs from the interference with family relations. The interference with the family relationship may he of various types, including, but not restricted to, the interference known as alienation of affections. With respect to interference with a man’s relationship with his wife, the three most common types of interference are (1) enticement or harboring the wife, (2) adultery with the wife, which in its tort aspect usually is called “criminal conversation,” and (3) “alienation of affections” which amounts to an interference only with the wife’s mental attitude toward the husband because of malice or some other improper motive on the part of the defendant. Prosser on Torts, 3rd Ed., p. 894.
The author in the foregoing work on torts makes the following observations with regard to causes of action of this sort:
“Criminal conversation, enticement and alienation of affections still are often treated as separate torts, but there is no good reason for distinguishing them. They represent three forms of interference with aspects of the same relational interest, and of course all three may be present in the same case. When the action is for criminal conversation, proof of enticement or alienation will go to increase the damages, and the converse is likewise true. There is now a decided tendency to confuse the three, or to lump them together, usually under the general name of ‘alienation of affections,’ without any attempt to distinguish the possible elements of the tort.”
Since defendant’s motion for summary judgment is leveled only at a cause of action for alienation of affections, it seems that defendant followed the usual tendency of lumping all possible types of interference under the general name of “alienation of affections.”
The common law has long furnished an aggrieved husband with a right of action against his wife’s adulterer for criminal conversation. Blackstone’s Commentaries (Lewis’s Ed.) Book 3, p. 139; Antonelli v. Xenakis, 363 Pa. 375, 69 A.2d 102. The right of an aggrieved husband to a cause of action for criminal conversation is recognized in this State. Swearingen v. Bray, 157 S.W. 953 (Tex.Civ.App., 1913, n. w. h.); Lisle v. Lynch, 318 S.W.2d 763 (Tex.Civ.App., Fort Worth, 1958, n. r. e.); also see Speer’s, Marital Rights in Texas, sec. 109. Our law also recognizes the right of an aggrieved husband to maintain a cause of action for alienation of affections. 30 Tex.Jur.2d, sec. 153, p. 240; Lisle v. Lynch, supra; Smith v. Smith, 225 S.W.2d 1001 (Tex.Civ.App., Amarillo, 1949, n. w. h.).
There is a distinction between an action for criminal conversation and an action for alienation of affections. It is possible for a cause of action for either to exist without the other. While an action for alienation of affections and one for criminal conversation are both founded on the injury to the right of consortium, they are generally recognized as essentially different. The gravamen or gist of the action where it is for criminal conversation is the adulterous intercourse, and the alien-atión of affections thereby resulting is regarded as merely a matter of aggravation, whereas the gravamen in the other case is the alienation of affections with malice or improper motives. Smith v. Smith, supra; Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808, 810 (1938).
In the present case two primary rights were available to the plaintiff as a basis for a cause of action: one is the right of the plaintiff to the body of his wife, and the other to her mind unpolluted. Sullivan v. Valiquette, 66 Colo. 170, 180 P. 91 (1919). The interference with the former constitutes a cause of action for criminal conversation while interference with the latter would give rise to a cause of action for alienation of affections. Interference with both, even though by one act, could give rise to two causes of action. It is permissible, however, to allege interference with either as an aggravation of the other. Sullivan v. Valiquette, supra.
The plaintiff’s petition in this case was not divided into counts. While the petition contains separate paragraphs, there seems to be no paragraph specifically on alienation of affections with malice or improper motives. Nowhere in plaintiff’s petition did he allege that the defendant had knowledge of the marriage relationship, which, as we understand it, is a necessary allegation in order to state a separate and distinct cause of action for alienation of affections. Since plaintiff did not specifically allege alienation of affections and did not allege defendant’s knowledge of the marriage relationship, we do not construe his petition as alleging a separate alternative count for a cause of action for alienation of affection in addition to his cause of action for criminal conversation. For this reason, it occurs to us that plaintiff based his suit only upon his right of action for criminal conversation and that the further charge of alienation of affections was incidental and was to be considered only in aggravation of the damages.
In Vol. 42 C.J.S. Husband and Wife § 698, subsec. b, p. 353, it is stated:
“To sustain an action for criminal conversation two things must be established: (1) An actual marriage between the spouses. (2) Sexual intercourse between defendant and the guilty spouse during the coverture.”
Plaintiff’s petition clearly alleged each of the foregoing elements. The evidence offered by the plaintiff shows both' the marriage and the illicit relationship. Defendant flatly denied that any illicit relationship occurred. Thus, the record shows a disputed issue of fact upon plaintiff’s cause of action for criminal conversation.
Rule 166-A, supra, provides for a summary judgment in the following language: “(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, * * * and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The duty of the court hearing the motion for summary judgment is to determine if there is any issue of fact to be tried and not to weigh the evidence or determine its credibility. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The record before us clearly shows that there is a fact issue to be tried which issue will ultimately turn on credibility of the witnesses and the weight to be given their testimony. It therefore follows that the defendant was not entitled to a summary judgment upon the cause of action relied on by the plaintiff.
For the reasons stated, the judgment is reversed and the cause is remanded. |
sw2d_482/html/0012-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "BARROW, Chief Justice. CADENA, Justice.",
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Ex parte Eduardo H. LAZARO, Relator.
No. 15087.
Court of Civil Appeals of Texas, San Antonio.
May 17, 1972.
Rehearing Denied June 21, 1972.
Herrera, Rocha & Segura, Luis M. Se-gura, San Antonio, for appellant.
Garcia, Hernandez & Campos, San Antonio, for appellee.
BARROW, Chief Justice.
This is an original habeas corpus proceeding brought pursuant to Article 1824a, Vernon’s Annotated Civil Statutes (Supp. 1972), in which relator, Eduardo H. Lazaro, seeks release from the custody of the Sheriff of Bexar County, Texas. He has been released on bond pending determination of this proceeding.
The record before us consists of a transcript of certain pleadings and orders filed in Cause No. F-214,215, styled Rachel L. Lazaro v. Eduardo H. Lazaro, in the 37th District Court of Bexar County, Texas, as well as an agreed statement of facts setting forth a narrative summary of the evidence heard on March 3, 1972, at which time relator was found in contempt. By order signed on March 3, 1972, relator was found in contempt and it was ordered that relator “ . . .be taken and incarcerated in the Bexar County Jail for a period of time of thirty (30) days and he is to be further incarcerated until he purges himself of this contempt by payment to Plaintiff, RACHEL L. LAZARO, the sum of FIVE HUNDRED ($500.00) DOLLARS for which he has been found to be in arrears in child support payments and in contempt and in violation of the child support orders of this Court.”
This order in contempt consists of two parts. Relator is ordered to be incarcerated in the Bexar County Jail for a period of thirty days for failure to comply with the child support provision of the divorce decree entered in Case No. F-214,215 and is further ordered to be incarcerated until he purges himself of this contempt by payment of the arrears to his former wife. Relator urges that the contempt order is void for three reasons: First, the child support provision contained in the divorce decree of February 25, 1970, is unenforceable due to its uncertainty and ambiguity. Second, the child support provision requires action by a third party, to-wit, the Social Security Administration, which party is beyond control of relator. Third, he urges that he is illegally confined without an order of commitment. Relator urges, in any event, that the coercive imposition is void because it requires him to do an act beyond his ability to perform.
Relator and Rachel L. Lazaro were divorced on February 25, 1970. The decree provides that one child, a boy four years of age, was born of this marriage and that his custody, care and control be awarded to Rachel L. Lazaro. Relator was ordered “ . . . to contribute as child support through the Child Support Office, 302 W. Nueva Street, San Antonio, Texas, the sum of SIXTY ($60.00) DOLLARS per month, however, said contribution on the part of said Defendant shall be reduced proportionately to that Social Security award and benefit which may be payable to the said child if the said award is less than SIXTY ($60.00) DOLLARS per month, however, if the said Social Security award and benefit payable to the said child is in excess of SIXTY ($60.00) DOLLARS per month, then that sum in excess of SIXTY ($60.00) DOLLARS per month shall be considered as the Child Support payment ordered to be made by this Court and said payments are to commence on the 13th day of March, 1970, and a like payment on the 13th day of each succeeding month thereafter.”
Rachel L. Lazaro testified that relator has never voluntarily made said payments, and the record substantiates her testimony in that in the two years since the above decree was entered, relator has been twice found in contempt of said order. The un-contradicted testimony is that he is now $500.00 in arrears. In support of his conduct relator testified that he is an unemployed paraplegic and that his only means of income are Social Security benefits of approximately $155.00 per month. The record further shows that Rachel L. Lazaro has received from the Social Security Administration payments for said child of $10.20 per month until December, 1970, and thereafter the sum of $18.20 per month.
The first question presented is whether said child support provision is erroneous and unenforceable due to its uncertainty and ambiguity. In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), it was recognized that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed on him.
The trial court specifically ordered relator to pay $60.00 per month for child support. The court recognized, however, that so long as relator was disabled, the minor child would be eligible to receive Social Security benefits and sought to give relator credit for such payments. Obviously, this provision is not artfully drawn, and the use of the word “proportionately” is meaningless. Nevertheless, the provision is clear that so long as the Social Security benefits payable to said child remain under $60.00 per month, relator’s monthly obligation of $60.00 is reduced by the amount payable to the child under Social Security. Under the record before us, the benefits payable to said child have remained under said $60.00 obligation, and, therefore, relator was obligated to pay said difference as child support. Relator’s obligation under the child support provision is not void for uncertainty.
Relator urges that, in any event, he cannot control the actions of the Social Security Administration and therefore compliance with the decree is beyond his control. This fact is recognized by the child support provision. Relator is ordered to pay $60.00 per month child support. This is his child support obligation. However, he is to be given credit on said obligation for the benefits, if any, payable to said child by the Social Security Administration. His obligation is not dependent on action by such agency, but rather is eased by any action taken by that body.
Relator also complains that he is being illegally restrained and confined without an Order of Confinement. The record before us contains an “Order in Contempt” whereby relator was found in contempt and ordered taken and incarcerated in the Bexar County Jail. The order further provides: “An order of commitment is therefore to issue to the Sheriff of Bexar County to take the person of Defendant, EDUARDO H. LAZARO, to be incarcerated as per orders of this Court above recited.” No order of commitment is in the record, and there is a certificate from the District Clerk that there is none on file in his office.
It is settled law that a written order of commitment, which is a warrant, order or process by which a court or magistrate directs a ministerial officer to take a person to jail or to prison and to detain him there is an essential prerequisite to the imprisonment of a person for contempt. Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152 (1961); Ex parte Martinez, 160 Tex. 328, 331 S.W.2d 209 (1960). However, there is no particular form prescribed by law for a commitment. Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160 (1951). This was fully considered in Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884, 886 (1957), wherein it was said: “It may consist of an authenticated copy of the court’s judgment which itself directs that a person be placed in jail and be there detained, Ex parte Coward, 110 Tex. 587, 222 S.W. 531, or it may take the form of a separate written order, signed by the judge or magistrate, or of a written order issued and signed by the clerk of the court by direction of the court.”
Relator has filed with us a certificate from the Bexar County Sheriff which provides that relator is confined in the Bexar County Jail “ . . . on Order of Contempt No. F-214,215, as per attached copy of Order.” Attached is a photostat copy of an Order in Contempt, including the signature of the trial judge. Such order, signed by the judge, which directs that relator be placed in jail and there detained, was sufficient authority for the Bexar County Sheriff to confine relator. Ex parte Arapis, supra.
A more difficult question is presented by the coercive imposition of the contempt order. A trial court has the recognized power to confine a party for contempt until he obeys the order for which he has been held in contempt for disobeying. Ex parte Proctor, 398 S.W.2d 917 (Tex.1966). Nevertheless, the confined party must be able to perform the order of the court, for if his inability is conclusively shown, the trial court has no power to order the coercive imprisonment. Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967); Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967); Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948).
Here, the uncontradicted evidence is that relator is a paraplegic, that he is unemployed, and is unable to obtain employment. He is living on Social Security payments of $155.00 per month. Obviously, he is unable to pay the arrears of $500.-00. This presents a difficult problem for the custodian of the minor child in that she is forced to proceed quickly against relator in the event of relator’s refusal to timely make said child support payments before the arrears get beyond relator’s ability to pay. Nevertheless, the record before us shows conclusively that relator is unable to comply with the court’s order to pay the arrears. We therefore order this part of the court’s Order in Contempt stricken.
Relator is remanded to the custody of the Sheriff of Bexar County, Texas, and it is ordered that he be incarcerated in the Bexar County Jail for the remainder of the thirty (30) days pursuant to the Order in Contempt of March 3, 1972. Upon completion of said period, relator is ordered discharged.
CADENA, Justice.
I believe that relator should be released from custody.
I cannot join in the conclusion that the child support provision of the divorce decree is “ . . . clear that so long as the Social Security benefits payable to said child remain under $60.00 per month, relator’s monthly obligation of $60.00 is reduced by the amount payable to the child under Social Security.” If that conclusion correctly expresses the intention of the trial court, it is an understatement to say that the provision is not artfully drawn. It is difficult to imagine a less artful manner of expressing such intention.
In order to reach such a conclusion, it is necessary to do more than observe that “ . . . the use of the word ‘proportionately’ is meaningless.” Even if we delete the word “proportionately” it is impossible to determine the meaning of the decree, since the excision of that term would leave us with the following provision: “ . however, said contribution on the part of said Defendant shall be reduced . . . to that Social Security award and benefit which may be payable to the said child if the said award is less than SIXTY ($60.-00) DOLLARS per month, . . . . ” This certainly cannot be interpreted as providing that relator’s obligation shall be reduced by the amount of the Social Security award. The plain meaning of the language is that relator’s contribution shall be reduced “to” the Social Security award. A direction to reduce amount X to amount Y is not an instruction to subtract amount Y from amount X. We have now altered this clear expression of intent by eliminating “proportionately” and substituting “by” for “to.” But our work of rewriting is not yet done. It is still necessary that we substitute the verb “paid” for the adjective “payable.” An “award and benefit which may be payable” is not the same as “an award and benefit which is paid.” An amount paid may be more or less than the amount payable, and once an amount is paid it is no longer payable. If we do not substitute “paid” for “payable,” the provision refers to the award to which may be due the child under the provisions of the Social Security Law, rather than to the award which is actually paid. Thus, the provision to the effect that relator’s obligation “ . . . shall be reduced proportionately to the . . . award . . . payable .” becomes clear only if the operative words are changed to “. . . shall be reduced by the . . . award . . . paid . ” We now have a provision which can be described as clear, but this clear provision is not the provision which the trial court wrote.
It is not necessary, in this case, to attempt to make sense out of the language seeking to describe relator’s duty if the award should exceed $60.00 per month. But it is clear that such provision is even more confusing than that portion of the decree which this Court has rewritten.
I would also hold that relator is being illegally restrained without a proper order of confinement. If it is settled law that an order directing a ministerial officer to incarcerate a contemnor is an essential prerequisite to imprisonment for contempt, then that essential prerequisite is lacking here. The order adjudging relator in contempt does not direct any ministerial officer to incarcerate relator. We do not have before us an order such as that issued in Ex parte Coward, 110 Tex. 587, 222 S.W. 531 (1920), which expressly provided that a certified copy of such order should be delivered to the sheriff “ . . . commanding him to arrest the said R. A. Coward and place him in said county jail . . . and for so doing this shall be sufficient warrant and authority to said sheriff.” See Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160, 161 (1951), for an explanation by the Supreme Court of the Coward decision.
In any event there is here no showing that, as in Coward, a certified copy of the order adjudging relator in contempt was ever delivered to the sheriff. In fact there is no showing that anything was ever delivered to the sheriff. The certificate of the sheriff merely recites that relator is confined in jail “ . . . on Order in Contempt No. F-214,215, as per attached copy of Order.” This certainly falls far short of constituting evidence that a copy, authenticated or not, of the order was ever placed in the hands of the sheriff. Nor can it be construed as a certification to the effect that any order was delivered to the sheriff. There is, therefore, no showing that an essential prerequisite for imprisonment for contempt has been met. |
sw2d_482/html/0017-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McKAY, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
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ZUMMO CATTLE COMPANY, Appellant, v. George H. MILLARD, Jr., dba Millard Feed Lots, Appellee.
No. 609.
Court of Civil Appeals of Texas, Tyler.
May 11, 1972.
Rehearing Denied June 22, 1972.
Price, Fisher, Hill, Patton & McLemore, Jack N. Price, Longview, for appellant.
Gordon Wellborn & Rex Houston, Guinn D. Tate, Henderson, for appellee.
McKAY, Justice.
Appellant Zummo Cattle Company, hereinafter called “Zummo”, brought suit against George H. Millard, Jr. and George H. Millard, Sr., dba Millard Feed Lots, hereinafter called “Millard”, on a written feed lot contract whereby Millard fed cattle for Zummo. Trial was before a jury, and judgment was rendered on the verdict that Zummo take nothing, and that Millard recover on his counter-claim. After Zum-mo’s Amended Motion for New Trial was overruled, he brings this appeal on twenty-four points. The judgment did not involve George H. Millard, Sr.
Zummo’s pleading alleged that under the cattle feeding contract the interim payments which he had made exceeded the amount he would owe under the contract, and he sued for loss of profits, failure of Millard to use medication, for loss of unaccounted for cattle, and claimed such losses were caused by mixed lots of cattle, refusal to allow Zummo to remove cattle in an orderly manner, and failure to properly care for cattle. Zummo further claimed that such acts by Millard disrupted Zummo’s business operation and caused Zummo to have to buy cattle on the open market and put many of the cattle in other feed lots.
Millard denied that the contract was the true contract of the parties, and pled alternatively that the contract was amended after its execution. Millard also claimed there was no consideration for Paragraph 8 of the contract, and that the account was not due or just and that he was not indebted to Zummo. Millard, by way of counter-claim, alleged that Paragraph 8 of the contract was not the agreement of the parties, but that it should be the normal 3% loss which was claimed to be standard in the cattle feeding industry, and that subsequent to the execution of the contract the parties agreed to change Paragraph 8 to the effect that Millard would be responsible for death and mysterious disappearance of cattle not to exceed 3%.
By his first three points appellant Zum-mo contends that the trial court erred (1) by not charging Millard with all losses from death or mysterious disappearance of cattle under the terms of the contract; (2) because there is no evidence, or insufficient evidence, to support jury finding in Special Issue 18 that the parties agreed to change Paragraph 8 of the contract so as to provide that Millard’s liability for death and mysterious disappearance losses would not exceed 3%; and (3) by permitting George Millard, Jr. to testify, in violation of the parol evidence rule, that he and John Zummo prior to the execution of the contract made an agreement relating to the death and mysterious disappearance losses of cattle which was contrary to the written provisions in Paragraph 8 of the contract, there being no allegation of fraud, accident or mistake alleged in the execution of the contract.
These points relate to Special Issues Nos. 16, 17 and 18, and the testimony of George Millard, Jr. The jury answered Issue 16 that Paragraph 8 was not placed in the contract solely as an accommodation to Zummo, and by Issue 17 that the parties did not mutually agree at the time of agreeing to the contract that Millard’s liability for death and mysterious disappearance loss would not exceed 3% of the total cattle placed with him for feeding. Issue No. 18 seems to be the critical one wherein the jury found that after the execution of the contract Millard and Zummo agreed to change Paragraph 8 so that Millard’s liability for losses by death or mysterious disappearances would not exceed 3%. The record discloses that there were 407 cattle lost by death and mysterious disappearances. Zummo contends there is no evidence, or insufficient evidence, in the record upon which the jury’s answer to Issue 18 could be based.
While we must consider on the no evidence point all the testimony in the record from the standpoint most favorable to appellee Millard, indulging in his favor every reasonable intendment deducible from the evidence, to sustain such point it must be determined that there is no evidence having probative force upon which the jury could have made the findings in question. North Texas Lumber Company v. Kaspar, 415 S.W.2d 470 (Tex.Civ.App., Dallas, 1967, writ ref., n. r. e.); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Gage v. Wimberley, 476 S.W.2d 724 (Tex.Civ.App., Tyler, 1972, n. w. h.).
In passing on appellant Zummo’s point that the jury’s answer to Issue No. 18 is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong, we must consider all of the evidence, both that which supports the answer and that which might be contra. In deciding the insufficient evidence question we must consider and weigh all the evidence in the case to determine whether the answer to Issue 18 is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. United Furniture and Appliance Company v. Johnson, 456 S.W.2d 455 (Tex.Civ.App., Tyler, 1970, n. w. h.); Bowen v. Merritt, Incorporated, 417 S.W.2d 313 (Tex.Civ.App., Fort Worth, 1967, n. w. h.).
We have carefully reviewed the 193 pages of testimony of George Millard, Jr. He testified that he received the contract in the mail from Zummo, and that before he (Millard) signed it he called John Zum-mo by telephone and told him that he, Millard, could not take all the death and mysterious disappearance losses because he was unable to take that kind of risk involving about 3,000 head of cattle and a possible loss of a quarter of a million dollars. Millard further testified that John Zummo told him he could take the normal death losses and mysterious disappearances up to 3% and that he, Millard, agreed to that arrangement, and that he, Millard, thereafter signed the contract, and that Paragraph 8 was left in the contract because John Zum-mo said it would help him with his banker. Millard also testified he never intended to be bound nor did he agree to Paragraph 8 of the contract. Zummo denied there was any alteration, modification or side agreement of any kind pertaining to Paragraph 8.
Zummo objected that the testimony of Millard was a violation of the parol evidence rule, and such objection was overruled by the trial court. It is noted that all of Millard’s testimony set out above relates to a telephone conversation before he signed the contract, and we have found no evidence in the record of any discussion or agreement relating to Paragraph 8 of the contract after the execution of the contract.
The parol evidence rule is the rule which, “upon the establishment of the existence of a writing intended as a completed memorial of a legal transaction, denies efficacy to any prior or contemporary expressions of the parties relating to the same subject-matter as that to which the written memorial relates.” 2 Texas Practice — Evidence, McCormick & Ray, Second Edition, Sec. 1601, p. 444. It is our opinion that it was a violation of such parol evidence rule to permit the witness Millard to testify about expressions or agreements between the parties occurring before or at the time of execution of the contract. There was no allegation or contention of fraud, accident or mistake. However, the jury found in Issue 17 that the parties did not mutually agree to change Paragraph 8 at the time of execution of the contract. The record also discloses that a 1966 feed lot contract between the same parties provided Millard took all the mysterious disappearance losses, while a 1967 contract between the same parties provided that Millard took all losses from death and mysterious disappearances.
We have concluded that there is no evidence in the record to sustain the jury’s answer to Issue 18. Millard did not testify to any agreement on Paragraph 8 made after the execution of the contract, and there is no evidence from any source to that effect.
Zummo’s Point 4 complains that there is no evidence to support the weights found by the jury in Issues 29, 30, 31, and 32, and that the evidence is insufficient to support such findings. Zummo also complains that no adjustments of the delivered weights were made for shrinkage, yield and condemnation losses. There is no requested issue in the record asking the Court for an issue or a definition on this point. We overrule Point 4 because it appears that the weights found by the jury are within the limits shown by the evidence in the record, and we are not able to determine that the jury did not take into consideration all of the evidence introduced before them, including the contract, in arriving at their answers.
By Point 5 Zummo contends that the trial court erred in failing to set aside the answers to Issues 22, 23, 24, 25, 26, 27, 28, and 35 because Paragraph 8 of the contract must be applied as written, and there is no evidence, or insufficient evidence, upon which arbitrary percentages can be attributed to the alleged causes of death or loss of weight. We sustain this point. There is no provision in the contract for any adjustment for the failure of Zummo’s buyer to use any standard or particular practice in buying and delivering cattle to Millard, and under Paragraph 4 of the contract Millard had the right to cull out up to 10% of the cattle which in his judgment were doing poorly. In addition, with reference to Issue 35, the only evidence as to the per head average purchase price was given by John Zummo’s testimony as $92.-39.
We overrule Points 6 and 7, and Points 8 through 22 are admissibility of evidence points, some of which may show error, but we hold there was no reversible error. Rule 434, Texas Rules of Civil Procedure.
Point 23 complains of the trial court’s action in rendering judgment for interest prior to judgment. We sustain this point. Millard was not entitled to interest prior to judgment since the amount sued for was not a liquidated, undisputed debt. The sum of money, if Millard was entitled to any, could not be determined until the facts could be fully developed at the trial, and the contract did not provide for interest. Hull v. Freedman, 383 S.W.2d 236 (Tex.Civ.App., Ft. Worth, 1964, writ, ref., n. r. e.).
By Point 24 Zummo contends there is no statutory authority for recovery of attorney’s fee in this type of case. We agree. Article 2226, Vernon’s Ann. Civil Statutes, sets out the circumstances under which attorney’s fees may be recovered. This suit and the counter-claim were both based upon the contract, and the basis of payment under the contract was per pound of gain by the cattle while in Millard’s feed lot. Attorney’s fees are not recoverable either in a tort action or on a contract unless provided for by statute or contract between the parties, and the statute has no application to a suit based upon a special contract between the parties. Eisenbeck v. Buttgen, 450 S.W.2d 696 (Tex.Civ.App., Dallas, 1970, n. w. h.).
The jury found there was 327,441 pounds of gain in the total of 2931 head of cattle. At 24‡ per pound of gain the contract price would be $78,585.84. Zummo had advanced $32,607.04, which amount subtracted from $78,585.84 leaves $45,978.-80. There were 407 cattle lost by death or mysterious disappearance, and at the average purchase price of $92.39 the value of the cattle lost would be $37,602.73, which amount subtracted from $45,978.80 leaves $8,376.07.
The case was fully tried, and the record consists of 1232 pages in the Statement of Facts, 138 pages in the Transcript and briefs of 89 pages and 80 pages. We are of the opinion that judgment should be rendered for appellee Millard in the sum of $8,376.07 in accordance with the jury verdict and this opinion. Rules 434, 435, Texas Rules of Civil Procedure; Appellate Procedure in Texas, Sec. 18.18.
Judgment of the trial court is reformed and rendered for appellee Millard as set out in this opinion.
. Feeding Contract
Feedlot: George H. Millard, Jr. dba Millard Feedlots
Company: Zummo Cattle Company
1. George H. Millard, Jr., hereafter referred to as Millard Feedlots, are to care for and feed up to 3,000 head of cattle to grade good within a 120 days under a good feeding program. Feeder calves are to weigh from 300-500 pounds.
2. All cattle purchased and delivered for our account is the property of Zummo Cattle Company. The weight on which the cattle are entered into the feedlot will be the Invoice Purchase weights. A copy of the invoice or weight tickets will be furnished the feedlot. The feedlot is to acknowledge by a report sent to Zummo Cattle Company, showing the condition, date, and weight upon receipt at the feedlot.
3. The cattle will be vaccinated for Blackleg, Malignant Edema, Shipping Fever, and all other diseases the feedlot deems necessary. The cattle will be treated with Ruelene, or other approved medication, for an effective grub control. All medication, veterinary services and supplies, feed, water, hay and miscellaneous expenses are at the expense of the feedlot.
4. The cattle are to be jaw-branded or ear tagged for identification, but they are not to be branded on sides, hips, or ribs. The feedlot shall have the right to cull out any poor doing animals, not to exceed 10% of the total lot, and asked for disposition from Zummo Cattle Company.
5. Cattle will be fed for a minimum of 75 days and a maximum of 120 days. Outweighing of the cattle will be at daybreak in the morning with a 4% shrink, if dry; or 5% if cattle are wet, or muddy, or 6% if cattle are weighed in the afternoon, from gross weight in order to obtain the net feedlot’s weight.
6. The feedlot will keep accurate records of cattle by pens and lots of approximately 100-125 cattle per pen.
7. Cattle under this contract will begin arriving after Juy 1, 1968 and terminate July 1, 1969.
8. All death losses and mysterious disappearance of cattle will be at the expense of the feedlot. If the cattle are not being cared for in a satisfactory animal hubandry program, Zum-mo Cattle Company has the option of removing the cattle from feedlot before expiration of 75 days.
9. The transportation of the cattle to and from the feedlot will be at the expense of Zummo Cattle Company.
10. Zummo Cattle Company will be billed for each pen of cattle on the first and fifteenth of each month at the rate of 34⅜ per head per day for all cattle in the feedlot on indicated date, for the number of days since the previous billing and such bill to be paid within 10 days after receipt thereof by Zummo Cattle Company.
11. After each pen of cattle is finished and removed, the final bill will be determined as follows :
The net total pounds gained will be determined by subtracting the starting total invoice weight of cattle from the net feedlot delivered weight. The feedlot will be paid at the rate of 240 per pound on total pounds gained less all previous interim payments, the difference to be paid within 10 days after-being billed.
12. Millard Feedlots guarantees that all cattle fed longer than 100 days will yield 58-72 per cent on a hot weight basis.
13. All cattle condemned by a qualified inspector of the Health Department of the City of Beaumont, State of Texas, or Federal Government, shall be equally pro-rata between the parties concerned on a fifty-fifty basis as converted to live weight.
ZUMMO CATTLE COMPANY
By : John F. Zummo
George H. Millard, Jr.
By: Geo. H. Millard, Jr.
. SPECIAL ISSUE NO. 16
Do you find from a preponderance of the evidence that Millard and Zummo placed the death and mysterious disappearance clause in the feeding agreement of July 1, 1968, solely as an accommodation to Zummo and did not intend for the death and mysterious disappearance clause to be binding on Millard?
Answer “Yes” or “No”
ANSWER: No.
SPECIAL ISSUE NO. 17
Do you find from a preponderance of the evidence that Millard and Zummo mutually agreed at the time of agreeing to the 1968 feeding contract that Millard’s liability for death losses and mysterious disappearances would not exceed 3% of the total cattle placed will him for feeding?
Answer “Yes” or “No”
ANSWER: No.
SPECIAL ISSUE NO. 18
Do you find from a preponderance of the evidence that after execution of the feeding agreement of July 1, 1968, Millard and Zummo agreed to change Paragraph 8 so as to provide that Millard’s liability for death losses and mysterious disappearances would not exceed 3% of the total cattle placed with him for feeding?
Answer “Yes” or “No”
ANSWER: Yes.
. The jury found :
1. Millard did not fail to care for the cattle in a satisfactory animal husbandry program.
3. Millard was not negligent in the care and maintenance of the cattle.
5, 6. Zummo suffered a direct monetary loss by reason of being unable to market and sell cattle lost through death or mysterious disappearances of $90.00 per head.
7. Millard did not fail to properly treat cattle with ruelene or other approved medication for an effective grub control.
10. Millard failed and refused prior to the filing of the suit to allow Zummo to remove cattle in an orderly manner.
11. Zummo did not incur additional freight expense and weight loss in the cattle as a result.
13. Zummo did not pay Millard more in interim payments than Millard was entitled to under the contract.
15. Zummo and Millard did not agree after the execution of the contract that Millard would be paid at the rate of 230 per pound on total pounds gained by cattle fed during contract term.
16, 17, 18. In Footnote 2.
19. There was consideration for Millard’s agreement to be responsible for all deaths and mysterious disappearances as stated in Paragraph 8.
20. None of the mysterious disappearances of cattle was caused by the conduct of Zummo personnel.
22. Zummo buyer failed to exercise reasonable animal husbandry judgment in buying cattle for placement with Millard.
23, 24. Such failure was a proximate cause of the death of 35% of the dead cattle.
25, 26. The delay of Zummo in getting calves to Millard feed lot after purchase at auction sales caused 35% of the cattle deaths.
27, 28. 1% of the cattle’s weight loss was caused by the practice of Zum-mo in using portions of the feeder cattle at Millard’s lot to make up partial lots purchased from auction sales.
29. Net delivered weight of 1122 head of cattle delivered by Millard to Zummo under the contract before the final shipment in February, 1969, was 610,046 pounds.
30. The starting weight of such cattle was 429,726 pounds.
31. Net delivered weight of 1357 head of cattle delivered by Millard to Zummo on February 5, 6 and 7, 1969, was 640,750 pounds.
32. The starting weight of such cattle, before any adjustment for culling, was 493,629 pounds.
33. Millard was not reasonably entitled to exercise a culling privilege as to the starting weight of the 1357 cattle.
35. Original average purchase price per head to Zummo of the 2931 head placed with Millard was $90.00.
38. Millard presented his claim to Zummo before the filing of this suit.
39. The jury did not find such claim was not paid or satisfied at the expiration of 30 days after presentment.
40. Reasonable attorney’s fee for services of Millard’s attorney found to be $10,000.00.
|
sw2d_482/html/0024-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "JOY, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
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Edward L. DALTON, Appellant, v. TEXAS SULPHUR PRODUCTS, INC., Appellee.
No. 8241.
Court of Civil Appeals of Texas, Amarillo.
June 12, 1972.
Edwards, Smith & Associates, Michael R. Miller, Amarillo, for appellant.
Culton, Morgan, Britain & White, Jess C. Dickie, Amarillo, for appellee.
JOY, Justice.
This is an appeal from an instructed verdict entered in favor of defendant-appellee Texas Sulphur Products, Inc., and against plaintiff-appellant Edward L. Dalton.
Affirmed.
The facts of this case are essentially undisputed. Appellant, Edward L. Dalton, was an employee of Well Treating Service owned by a Mr. Carl Saxon. Appellee, on March 19, 1970, employed Well Treating Service to haul liquid fertilizer from the Sneed Plant of appellee, Texas Sulphur Products, Inc., to appellee’s storage tanks located near Sanford, Texas. While at the Sanford location, appellant attempted to measure the contents of one of several large storage tanks and in the process he caused a metal pole to come into contact with an electric line located above and behind the tank the appellant was standing upon. Appellant received severe burns to his hands and was thrown off the tank as a result of the electrical shock.
Thereafter, appellant filed suit against appellee contending various acts of negligence on the part of appellee, and that such acts of negligence culminated in appellant’s sustaining personal injuries. Appellant’s allegations of negligence are based upon the contention that appellee did not keep his premises in a reasonably safe condition through appellee’s following acts or omissions: (1) the failure to warn appellant of the close proximity of the electrical line; (2) failure to provide adequate devices for measuring the contents of the tanks; (3) by the improper placement of the tanks; (4) failure to warn appellant of the dangers involved in measuring the tanks; (5) the failure to place hand rails, guards, etc. on the tanks; (6) failure to properly instruct the appellant of his duties ; and, (7) that appellee was negligent in placing the ladder end of the tank near the electric lines. Appellee answered asserting, in part, various affirmative defenses and contending primarily that appellee owed “no duty” to appellant under the circumstances surrounding his accident. At the close of the appellant’s evidence, appel-lee presented to the court a motion for instructed verdict predicated upon the ground that it owed “no duty” to appellant relying upon the doctrine of “open and obvious.” The trial court granted the motion of appellee and entered judgment that the appellant take nothing. Appeal was duly perfected seeking review of that judgment.
Appellant’s first point of error states that the trial court erred in granting the appellee’s motion for instructed verdict because it had not been conclusively proved that the appellee owed no duty to the appellant. Appellant’s remaining two points of error relating to the sufficiency of evidence to raise fact issues are material only if his first point is sustained. Appellee relies upon the doctrine of “open and obvious” contending it owed “no duty” to appellant, and further that there is no evidence to warrant the submission of any issues based upon the allegations in appellant’s first amended petition.
The test to be applied by an appellate court when considering the propriety of an instructed verdict is that such court should view all testimony adduced on the trial in the light most favorable to the losing party, disregarding all conflicts in testimony, and indulging in every reasonable deduction in favor of the party against whom the instructed verdict was granted. Godwin v. Roberts, 213 S.W.2d 571 (Tex.Civ.App.—Galveston 1948, writ ref’d n. r. e.) ; Humphreys v. Haragan, 476 S.W.2d 880 (Tex.Civ.App.—Amarillo 1972, no writ). If, under this test, there is no evidence to raise a fact issue to go to the jury, or the moving party is entitled to judgment as a matter of law, then the instructed verdict must be affirmed on appeal. Constant v. Howe, 436 S.W.2d 115 (Tex.Sup.1968); Shubert v. Fidelity & Casualty Company of New York, 467 S.W.2d 662 (Tex.Civ.App.—Houston (1st Dist.) 1971, writ ref’d n. r. e.). Therefore, a review of the evidence in conjunction with the applicable principals of the “no duty” doctrine is required.
An occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). If there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them no duty to warn or to protect the invitees. In a suit by an invitee against the occupier, the invitee must prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, and further he must prove that the occupier owed him a duty to take reasonable precautions to warn or protect him from such danger, i. e., he must negative “no duty.” Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963). When a condition is patently open and obvious and the danger apparent, and when the plaintiff has encountered it many times, he will be charged in law with knowledge and appreciation of the danger and the occupier owes him no duty. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 874 (1948). Sei-deneck v. Cal Bayreuther Associates, 443 S.W.2d 75 (Tex.Civ.App. — Eastland 1969, aff’d at 451 S.W.2d 752 (Tex.Sup.1970)). “Logically, whether a defect is so plain that anyone should see it is a law question.” See: Baylor University: Greenhill, Assumption of Risk, 16 Baylor L. Rev. Ill (1964).
Appellant, on the day of the accident, drove his truck onto the premises of appellee coming from the east and approached a riser sticking up out of the ground which was used to connect the hose on the truck onto the riser in order to pump liquid into the fertilizer tanks. He turned his truck to the north facing the electric lines and hooked the truck hose up to the riser. He then walked to the west and down to the north end of the tanks which would be alongside and below the electric lines. When he got to the tanks, he opened a valve located on the north end of each tank. He had followed this procedure on prior occasions. As a matter of course, he would come from the east, driving in a westerly direction with the electric poles and lines in view. Then he would turn his truck around to head it north sweeping the entire terrain within the scope of his vision. It is undisputed that appellant had been to the premises on several occasions before March 19, 1970. Appellant stated that he had been to the premises of appellee at least three times by himself and at least on one other occasion with another driver to fill the fertilizer tanks. Appellant, on the day of the accident, followed essentially the same procedure with the exception of the measuring process as he had on previous occasions when he was directed to fill the fertilizer tanks as heretofore described. He stated that he climbed upon the ladder located on the north end of the tank, brought the metal pipe up holding it with both hands, flipped it over his left shoulder in an arc, and struck the electric line.
When questioned about his knowledge and appreciation of electricity and the danger appurtenant thereto, appellant stated:
“Q. And at any rate, you knew that it was dangerous to contact an electric line, didn’t you ?
“A. Yes, sir.
“Q. You knew that at the time, didn’t you?
“A. Yes, sir.
“Q. And you knew it was dangerous to make contact with an electric line with a metal object, didn’t you?
“A. Yes, sir.
“Q. Such as a piece of pipe. You knew if you contacted an electric line with a piece of pipe that it was dangerous, didn’t you?
“A. Yes sir.
“Q. And yon knew you were apt to get hurt, didn’t you?
“A. Yes, sir.”
Appellant’s own testimony reveals that he knew and appreciated the danger involved in touching a metal pole against an electric line; thus, the question becomes whether or not the circumstances are such that he can be charged with knowledge of the line, i. e., was the electric line so open and obvious that he cannot now be heard to say that he did not see it. When questioned about his knowledge of the existence of the electric lines, appellant testified as follows:
“Q. Even though you knew for over an hour that you were going to gauge it with a metal pipe, knew there were lines in the vicinity, and knew that it was dangerous, you didn’t even look to see where the lines were?
“A. No.
“Q. All right. If you had looked, you would have seen the lines, wouldn’t you?
“A. Yes, sir.
“Q. And if you had looked and seen the lines, it wouldn’t have happened, would it?
“A. Right.”
The record also contains testimony of other witnesses to the effect that the electric lines were clearly visible to anyone who came on or near the premises of ap-pellee.
Further, eight photographs were introduced into evidence which showed the electric lines to be clearly visible to anyone who came near the premises. The salient portions of appellant’s testimony amount to the basic fact that he simply did not see the electric lines even though the lines were clearly not concealed or hidden in any manner, and he had been there on several other occasions.
The case of Marshall v. San Jacinto Building, Inc., 67 S.W.2d 372 (Tex.Civ.App.—Beaumont 1933, writ ref’d) announced the rule in Texas regarding the “no duty” doctrine. In that case, the plaintiff tripped over a slight rise from the sidewalk to a building entrance. There, as here, the plaintiff had been to the premises on several occasions before the accident occurred and the plaintiff testified that he did not notice the condition. There, as here, several photographs were introduced into evidence reflecting that the condition complained of was clearly visible. In that case, as in the case before us, the trial court instructed a verdict for the defendant. The trial court’s instructed verdict was upheld on the basis of “no duty” reasoning that under the facts of the case the defendant was charged with knowledge of the condition. Subsequently in Hausman Packing Co. v. Badwey, 147 S.W.2d 856 (Tex.Civ.App.—San Antonio 1941, writ ref’d), a judgment was rendered for the defendant on the basis of the Marshall decision. As noted in Halepeska v. Callihan Interests, Inc., supra, the holding in the Hausman Packing Co. case is as follows:
“. . . Being charged with full knowledge of these obvious defects ... he cannot recover for personal injuries caused by such defects or condition.”
We believe the most recent decisions in this area follow the decision in the Marshall case where the circumstances are strikingly similar to those in the case before us, and that the Marshall case controls the disposition of this case. We, therefore, hold that appellee owed “no duty” to appellant under the facts of this case. The condition complained of here was open and obvious and appellant is charged as a matter of law with knowledge thereof. We overrule appellant’s first point of error and, having found no duty on the part of appellee, deem it unnecessary to rule upon the remaining two points of error. There being no duty owed to appellant as to the condition here complained of, there can be no breach of a duty.
The judgment of the trial court is affirmed. |
sw2d_482/html/0028-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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ROBERTSON DISTRIBUTION SYSTEMS, INC., a Texas Corporation, Appellant, v. Howard E. BUTT, Jr., et al., Appellees.
No. 698.
Court of Civil Appeals of Texas, Corpus Christi.
May 31, 1972.
Rehearing Denied June 22, 1972.
Dyche, Wright, Sullivan, Bailey & King, A. J. Carrubi, Jr., Aubrey B. Calvin, Houston, for appellant.
Sorrell, Anderson & Sorrell, J. R. Sorrel], R. Knox Tyson, Corpus Christi, for ap-pellees.
OPINION
BISSETT, Justice.
This is a venue case, however the question presented is the severability of the cause of action alleged by plaintiff. Robertson Distribution Systems, Inc., hereinafter referred to as “plaintiff”, instituted this suit in the District Court of Nueces County, Texas, wherein it sued for damages alleged to have been caused by defendants’ breach of warranties, representations and indemnification agreements contained in a certain Stock Purchase and Redemption Agreement entered into on September 14, 1970 by and between plaintiff, as purchaser, and some of the defendants, as sellers, and in a certain Stock Purchase Agreement entered into on September 30, 1970 by and between plaintiff, as purchaser, and the remaining defendants, as sellers. The defendants named in said suit were Howard E. Butt, Jr., individually, Charles C. Butt, individually, and the Corpus Christi State National Bank as receiver of the estate of J. L. Boggus, Jr., J. L. Bog-gus, Jr., individually and Mrs. J. L. Boggus, Jr., individually, residents of Nueces County, Texas, hereinafter referred to as the “Nueces County defendants”; and J. L. Youngblood, Frank M. Boggus, and the First National Bank of Harlingen, as co-executors of the estate of James Lewis Boggus, deceased, residents of Cameron County, Texas, hereinafter referred to as “the Cameron County defendants”.
The Cameron County defendants filed their plea of privilege to be sued in Cameron County, the county of their residence. Plaintiff did not controvert that plea. The trial judge of the District Court of Nueces County, Texas, sustained said plea and ordered the case transferred to the District Court of Cameron County, Texas, only insofar as it concerned the Cameron County defendants. Plaintiff has duly perfected its appeal to this Court.
Plaintiff apparently does not appeal from the judgment that transfers the cause to Cameron County insofar as it affects the Cameron County defendants because plaintiff’s sole point of error reads:
“The District Court after sustaining the plea of privilege of three of the six named defendants, erred in not transferring the entire cause of action to the county of residence of such defendants.”
Plaintiff does not refer to any subdivision of Article 1995, Vernon’s Ann.Civ.St., the venue statute, in support of this point. We are asked to reverse and remand the case “with instructions to the trial court to transfer the entire cause of action to Cameron County, Texas”. Therefore, the judgment of the trial court transferring the case to Cameron County insofar as the Cameron County defendants are concerned is not before us for review.
The Nueces County defendants filed original answers to plaintiff’s petition. Findings of fact and conclusions of law were neither requested nor filed.
The only question to be decided by this Court in the matter of the appeal is whether or not the case as to the Nueces County defendants should have been transferred to Cameron County. The appeal, as aptly put by plaintiff in its brief, involves “only the single issue of sever-ability”.
It is now an established rule in this State that where the cause of action is joint against two or more defendants the sustaining of the plea of privilege on the application of one of the defendants has the effect of transferring the entire case, including the subject matter and all parties, to the place where the defendant filing the plea is entitled to have it tried. On the other hand, if the cause of action is severable, or joint and several, the sustaining of a plea of privilege for a particular defendant operates only to transfer the case as to such defendant and the trial court retains jurisdiction over the action insofar as it concerns the remaining defendants who did not file pleas of privilege or whose pleas were not sustained. Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65 (1942); Hickman v. Swain, 106 Tex. 431, 167 S.W. 209 (1914); Comer v. Brown, 285 S.W. 307 (Tex.Comm’n App. 1926, opinion adopted); Johnson v. First National Bank of Brenham, 42 S.W.2d 870 (Tex.Civ.App.—Waco 1931, n. w. h.).
In order for a cause of action to be a joint action, there must be a joint liability on the part of the defendants. The legal distinction between contracts which impose joint liability and those that provide for joint and several liability was set out in Miller v. Bush, 119 Tex. 53, 24 S.W.2d 23 (Tex.Comm’n App. 1930, opinion adopted), as follows:
“Moreover, it occurs to us that, regardless of the particular words employed, where a binding agreement of a number of parties with one another is to the effect that each will bear his proportionate part of a burden resting on the shoulders of one or more of them, a joint and several obligation, as between themselves, necessarily arises. For the necessary effect of such an agreement is to bind the parties to one another for the performance of the several promises of all.”
The Supreme Court, in International Harvester Company v. Stedman, 159 Tex. 593, 324 S.W.2d 543 (1959), said:
“ . . .A suit is not necessarily a ‘joint action growing out of joint liability’ simply because the plaintiff might be awarded a judgment against the defendants jointly if all remained parties to the same proceeding, and that the avoidance of a multiplicity of suits is not always a consideration in determining whether the entire cause must be transferred when the plea of privilege of one defendant is sustained.”
In the instant case, as a result of the execution of the aforesaid Stock Purchase Agreement and Redemption Agreement and of the Stock Purchase Agreement, by the defendants, as sellers, plaintiff, as purchaser, acquired all of the issued and outstanding stock of the two corporations therein named. The Stock Purchase and Redemption Agreement, in the event liability was imposed on the sellers, specifically apportioned such liability on the sellers as follows :
“Howard E. Butt, Jr. and Charles C. Butt (jointly and severally) ... 44% Co-Executors . 56%.”
The words in the aforesaid Agreement apportioning liability in the percentages stated to the named persons create a joint and several obligation as between the sellers (defendants herein), and, therefore, this case falls within the rule stated in Miller v. Bush, supra. We hold that the cause of action asserted by plaintiff is joint and several and thus severable.
Rules 86 and 87, Texas Rules of Civil Procedure, prescribe the pleading and procedure for the trial of questions of venue. The issue of venue is joined only by the filing of a controverting affidavit that must be served upon the defendant as provided by Rule 87, T.R.C.P. This is necessary in order to invest the trial court with jurisdiction over defendant on the matter of venue and to make the defendant a party to the contest as to venue. Here, when the venue was challenged by the Cameron County defendants’ plea of privilege and plaintiff did not file a controverting affidavit, the issue of venue as to the Nueces County defendants was never joined; as a consequence, the trial co’urt was without jurisdiction to enter any order other than one transferring the cause to Cameron County insofar as it pertained to those defendants residing in Cameron County. Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (1936); John E. Quarles Co. v. Lee, 58 S.W.2d 77 (Tex.Comm’n App. 1933, holding approved) ; Durrett v. Arctic Air, Inc., 319 S.W.2d 937 (Tex.Civ.App.—Houston 1959, n. w. h.).
The Nueces County defendants were not parties to the plea of privilege filed by the Cameron County defendants, and did not participate in any of the proceedings in the trial court incidental to either the filing of the plea of privilege or the order sustaining the same. Their right to be sued in the county of their residence was never questioned by plaintiff in the trial court. They have asserted no privilege to be sued elsewhere. Plaintiff has deliberately made its choice and has had its day in court concerning venue. To transfer the case as to the Nueces County defendants under the record before us would deprive them of a trial on the issue of venue and would deny them their day in court.
It is settled law in this State that the plaintiff, to overcome a plea of privilege, must prove as well as specifically plead, the venue facts upon which he relies. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941); Furr’s Super Market, Inc. v. Jernigan, 380 S.W.2d 193 (Tex.Civ.App.—Amarillo 1964, n. w. h.). Plaintiff’s original petition recites that the Nueces County defendants reside in Nueces County, Texas. Nothing different in the form of pleading or proof in any venue hearing was ever filed in or presented to the trial court. Plaintiff did not plead any facts or offer any proof that would authorize the transfer of this case to Cameron County as to the Nueces County defendants. The cause of action asserted by plaintiff is here severed, and that part relating to the Cameron County defendants will be transferred to Cameron County. The cause of action relating to the Nueces County defendants will remain in Nueces County, Texas. Plaintiff’s point is overruled.
After the appeal had been perfected and on the day preceding its submission in this Court, plaintiff filed a motion in the District Court of Nueces County, Texas, for leave to take a non-suit as to all defendants, Cameron County as well as Nu-eces County defendants. The motion was granted by the trial court on the same day that it was filed and an order of dismissal was entered that dismissed the suit in its entirety without prejudice to the right of plaintiff to refile the same. The next day the case was submitted to the Court of Civil Appeals without complaint. Thereafter, and after the case had been submitted in this Court, plaintiff filed a motion in this Court to dismiss its appeal on the ground that the appeal had become moot by the taking of a non-suit against all defendants in the entire cause of action.
Rule 89, T.R.C.P., states (in part):
“If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; . . . Provided, however, if the cause be severable as to the parties defendant and shall be ordered transferred as to one or more defendants but not as to all, the clerk, instead of sending the original papers, shall make certified copies of such filed papers as directed by the court and forward the same to the clerk of the court to which the venue has been changed. . . . ”
Rule 385(c), T.R.C.P., provides:
“Where the appeal is from an order sustaining a plea of privilege, transfer of the venue and trial upon the merits shall be suspended pending the appeal.”
Plaintiff’s motion to dismiss must be denied for several reasons. In the first place, a motion to dismiss the appeal as a matter of right, filed after the case has been submitted to a Court of Civil Appeals comes too late. 5 C.J.S. Appeal & Error § 1374, pp. 473-474. The Nueces County defendants object to the dismissal of the appeal.
The Commission of Appeals, in H. H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (1927), where a plea of privilege had not been controverted, and defendant had moved the trial court to transfer the case by sustaining the plea, but the court had not announced his decision, held that plaintiff could take a non-suit “until that order has actually been announced”. See First National Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215 (1933); Atlantic Oil Producing Co. v. Jackson, 116 Tex. 570, 296 S.W. 283 (1927); Sherrill v. Sherrill, 359 S.W.2d 330 (Tex.Civ.App.—Waco 1962, writ dism’d). Here, the non-suit was attempted after the trial court had announced his decision on the question of venue and after the appeal had been perfected to this Court.
The cases relied on by plaintiff as authority for its taking a non-suit are those where a non-suit was taken during the pen-dency of an appeal from an order overruling the plea of privilege. Those cases are not in point. We have an order sus taining the plea of privilege in this case, not an order overruling it.
An appeal may be had from a judgment sustaining or overruling a plea of privilege, but it suspends a trial on the merits pending determination of the appeal only in the event the judgment appealed from is one sustaining the plea. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602 (1922); Texas & P. Ry. Co. v. Wood, 211 S.W.2d 321 (Tex.Civ.App.—El Paso 1948, writ ref’d n. r. e.). It follows that in this case where some of the defendants reside in Cameron County and some reside in Nueces County, and no controverting affidavit was filed to contest the plea of privilege asserted by the Cameron County defendants, and no complaint was lodged concerning the transfer of the case to Cameron County as to the defendants residing there, and where the only complaint is that the judgment sustaining the plea did not go far enough so as to transfer the entire cause of action to Cameron County with respect to all defendants (including those residing in Nueces County), that the trial court was without authority to disturb the status of the parties pending the appeal by the attempted granting of a non-suit as to the case in its entirety.
In Goad Motor Co. v. Yantis, 296 S.W. 990 (Tex.Civ.App.—San Antonio 1927, n. w. h.), the trial court overruled defendant’s plea of privilege. The judgment was appealed. Pending the appeal, the trial court set aside its former judgment and reset the hearing upon the plea of privilege. The Court of Civil Appeals held that the latter order was unauthorized, and said:
“ • . .. After the appeal was perfected the trial court had no further jurisdiction in the case, and was without authority to enter the order setting aside the judgment appealed from, or to hear the plea, or otherwise disturb the status of the parties pending the appeal.”
A case in point is Long v. Compton, 398 S.W.2d 784 (Tex.Civ.App.—Waco 1965, n. w. h.). In that case, Hall sued Long in Harris County. The cause was given the number 640,087 in the 151st District Court; Long’s plea of privilege to be sued in Tarrant County was overruled; the Court of Civil Appeals reversed the judgment of the trial court and ordered the case transferred to Tarrant County. Thereafter, and after the judgment of the Court of Civil Appeals had become final, Hall took a non-suit in Cause 640,087, in the 151st District Court of Harris County, and the judge of that court entered an order dismissing such cause. The clerk of the 151st District Court refused to transfer the papers in the cause to Tarrant County. The Court of Civil Appeals, on a petition for mandamus, ordered the clerk to transfer all such papers. It held:
“The 151st District Court lost jurisdiction of the cause once appeal was perfected to the Court of Civil Appeals. The taking of the non-suit in the 151st District Court of Harris County, and the judgment of dismissal in the 151st District Court, are nullities. . . . ”
The attempted non-suit could not and cannot be considered a motion to discontinue the suit against either the Nueces County defendants or the Cameron County defendants, as authorized by Rule 163, T.R. C.P. It is a motion to dismiss the entire case and nothing else. Plaintiff cannot successfully bring about a dismissal of its original lawsuit as to all defendants by the expedient of taking one non-suit as to all defendants after the plea of privilege as to the non-resident defendants has been sustained, and the case ordered transferred as to them and the appeal perfected, where the issue of venue as to the resident defendants has never been determined in the now severed lawsuit. The effect of the judgment of the District Court of Nueces County sustaining the plea of privilege was to retain jurisdiction of the case insofar as it concerned the Nueces County defendants and to transfer the jurisdiction of that part of the case as to those defendants residing in Cameron County, subject to this appeal. Fry v. Alaniz, 329 S.W. 2d 133 (Tex.Civ.App.—San Antonio 1959, n. w. h.); Kirk v. Harrington, 255 S.W.2d 557 (Tex.Civ.App.—Fort Worth 1953, n. w. h.); Jaques Power Saw Co. v. Womble, 207 S.W.2d 206 (Tex.Civ.App.—Waco 1948, n. w. h.). Plaintiff’s attempted non-suit and the order granting same are set aside. Plaintiff’s motion to dismiss the appeal is denied.
The District Clerk of Nueces County, Texas, is directed to make certified copies of the papers filed in the aforesaid suit and forward same to the District Court of Cameron County, Texas, in accordance with the provisions of Rule 89, T.R.C.P.
The judgment of the trial court is affirmed. |
sw2d_482/html/0034-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MASSEY, Chief Justice.",
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WRIGHT HYDRAULICS, INC., et al., Appellants, v. WOMACK MACHINE SUPPLY COMPANY et al., Appellees.
No. 17325.
Court of Civil Appeals of Texas, Fort Worth.
May 26, 1972.
Rehearing Denied June 30, 1972.
Richards, Harris & Hubbard, Dallas, Wilson, McGee & Craig, and William T. McGee, Fort Worth, for appellants.
Cantey, Hanger, Gooch, Cravens & Munn, and Charles L. Stephens, Fort Worth, for appellees.
OPINION
MASSEY, Chief Justice.
The appeal is from an order granting temporary injunctions to two corporations, Womack Machine Supply Company (of Dallas) and Womack Machine Supply Company of Houston, against various individuals who had been their former employees and against Wright Hydraulics, Inc., a company which had been organized by some of them and the interests of which were promoted by all, doing business in competition with both plaintiffs.
The prayer was for temporary injunction solely.
Basic objective of the suit in the trial coiirt was two-fold: (a) to enforce written covenants of certain individual defendants not to compete with their former employer during the prescribed two-year period for which the covenant was effective after employer/employee relationships were severed, plus like enforcement against Wright Hydraulics, Inc., where its ability to compete was derivative through aid of such individuals, and (b) use or disclosure by the individual defendants of the names of or credit information concerning: to quote from the temporary injunctive decree, “. . . any customers of the plaintiff companies, their affiliates, associates or subsidiaries . . . learned while such defendant was an employee of any of such companies; . . . provided, however, that nothing herein contained shall prevent the contacting of a former Wo-mack customer, after the end of the proscribed period, if the foregoing restrictions are not violated; . . . .” (Emphasis supplied.) Wright Hydraulics, Inc., was additionally sought to be restrained from any use or disclosure of such customer information previously disclosed to it by any of such individual defendants, and en-joinder of it was a part of the decree of temporary injunction.
Decree of temporary injunction is modified, and as modified, affirmed.
Since corporations become entities upon incorporation their status before the law is that of individuals (in the ordinary case) despite the fact that one corporation may be the subsidiary of another, or the affiliate of any other, or of others. See 14 Tex.Jur.2d, pp. 111-138, “Corporations”, and in particular paragraphs under “I. Introductory . C. Entity Concept”, numbered Sec. 10, “In general”, Sec. 11, “Legal consequences”, and Sec. 14, “Affiliated or subsidiary corporations”. Nothing in the instant case exists to invoke any exception, as, for example, a necessity to “pierce the corporate veil” to get at the actual wrongdoer, etc.
As in the case of individuals, where two or more corporations divide a state or states into separate trade areas wherein no one of them will compete with any other, an employee of one of them who leaves his employ and engages in like business to that of his former employer, but in a different trade area, does not thereby enter into competition with his former employer, and would not be considered to have done so even though he is in competition with another corporation his former employer would wish to protect. His action could not be restrained by his former employer under a covenant not to compete with it for a reasonable time, even though the language of the covenant included a promise not to engage in like business outside the trade area of such employer. Only by competition with the former employer in his own trade area might it be said that he could suffer harm. See generally 87 C.J.S. p. 312, “Trade-Marks, Trade-Names, and Unfair Competition,” Sub. V, “Unfair Competition”, and also § 87, “In General”, and § 88, “Competition”.
And, as applied to the limitation period for any non-competitive covenant applicability in a former corporate employer’s own trade area, the tolling of such would date from the severance of employer-employee relations with it only; not from the date the former employee might have severed such relations with another and different employer, even though such Subsequent employer was a subsidiary or affiliated corporation of the other.
Concerning the authority of a trial court invoked and authorized on petition to enjoin breach of a covenant not to compete an observation was made in Spinks v. Riebold, 310 S.W.2d 668 (El Paso Tex.Civ.App., 1958, error refused). The court stated that the Supreme Court’s ruling in Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798 (1954) was “not whether or not the contract is valid, but as to what extent the court will aid the appellant in the enforcement thereof.” Such has application to the non-competitive covenants made the basis of an important part of the subject matter presented on appeal ; such having relation to the time period which must expire before a former employee could compete in the employer’s own trade area, and to space (or trade area) wherein the court should restrict competitive activities during the interval before the end of that period.
In the application of the foregoing principles this appellate co'urt is authorized to modify the decree of temporary injunction from which the appeal has been taken, and, under the undisputed factual situation and law applicable thereto change the decree so that it would provide as follows :
The individual defendant, Sammy Fenn, would be — until August 1, 1972 (not December 17, 1973) — enjoined from engaging in competitive business with Womack of Houston in that company’s trade area.
The individual defendants, Thomas L. Elliston, Henry R. Hruza, Jr., and Erick Boyd would be enjoined from engaging in competitive business with Womack of Dallas until dates of June 1, 1972, January 1, 1973, and December 29, 1973, respectively, in the trade area of Womack of Dallas.
Wright Hydraulics, Inc., would be enjoined from engaging in competitive business with Womack of Houston, in that company’s trade area, until August 1, 1972 (date to which Fenn was properly restrained from engaging in such competitive business), in the event Fenn owns any of its stock or engages in any way in its-activities as its employee in its competitive business with Womack of Houston in that company’s trade area.
Wright Hydraulics, Inc., would be enjoined from engaging in competitive business with Womack of Dallas, in that company’s trade area, (a) until June 1, 1972, as applied to Elliston, (b) until January 1, 1973, as applied to Hruza, and (c) until December 29, 1973, in the case of Boyd, — in the event during said intervening periods and for the respective periods applicable to those respective defendants — they own any of the stock of Wright Hydraulics, Inc., or engage in any way in its activities in competitive business with Womack of Dallas in that company’s trade area.
It is our conclusion and holding that the decree of the court as hereinabove specified would be correct; would conform to the status quo made a matter of contract by the individual defendants named, and would— as applied to Wright Hydraulics, Inc. — be authorized under equitable considerations aside from the matter of contract to which it was party but invoked because the true status quo of the individuals would be necessarily involved in its competition with the plaintiffs.
With the foregoing modification, in limitation, and the temporary injunctive decree treated as prepared in accord, we consider another and different part of the decree complained of on appeal.
Each of the individual defendants, inclusive of the defendants Elliston, Hruza, Fenn and Boyd, and also including others, to-wit: James B. Wright, Jr., John H. Chance, and Robert M. Schriever, were temporarily enjoined by the following language: “From using, directly or indirectly, or in any manner disclosing to any other person any knowledge of the names of or credit information concerning any customers of the plaintiff companies (Womack of Dallas and Womack of Houston), their affiliates, associates or subsidiaries herein-above specified (Womack companies other than the plaintiffs, each of which does business in a trade area different from those of the plaintiffs), learned while such defendant was an employee of any of such companies; ‘using’ as employed in this paragraph shall mean attempting to sell to or soliciting purchase orders from such customer of the Womack organization of any fluid power components or accessories on the basis of such knowledge, or in any manner communicating with such customer concerning such customer’s relationship with the Womack organization; . . . . ”
The Wright Hydraulics, Inc., was temporarily enjoined from “In any way, directly or indirectly, inducing, causing, soliciting, or attempting to induce, cause or solicit, current, future or former employees of any of such plaintiffs, their affiliates, associates or subsidiaries aforementioned, including the individual defendants herein, to disclose to Wright Hydraulics, Inc., its officers, agents or employees, or to any other individual, firm, or corporation, the names or credit information on, any of the customers of any of the companies in such Womack organization, including, but not limited to, the plaintiffs herein, or any other information concerning such customers of a confidential nature that was acquired by any such person while employed by any such’ Womack company;
“In any way, directly or indirectly, disclosing or using any of such' customer information previously disclosed to defendant Wright Hydraulics, Inc., by any of the individual defendants herein; . . . . ”
Covenants not to compete were signed by all the individual defendants except Fenn and Schriever with Womack of Dallas; and Fenn signed such with Womack of Houston. Schriever never signed any such instrument. Those signed contained language, as follows: “The Employee recognizes and acknowledges that the list of the Employer’s customers, as it may exist from time to time, is a valuable, special, and unique asset of the Employer’s business. Employee also recognizes that in the course of his employment he will learn the trade secrets, formulas, methods, inventions, and devices used in Employer’s business, and, in some instances, will attend a school conducted by Employer for the purpose of teaching him the principle and practice of Industrial Fluid Power. The Employee will not, during or after the term of his employment, disclose the list of the Employer’s customers, Employer’s trade secrets, formulas, methods, inventions, or devices, or any part thereof, to any person, firm, corporation, association, or other entity, for any reason or purpose whatsoever. . '. In the event of a breach or threatened breach of any of the provisions of this paragraph by the Employee, the Employer shall be entitled to an injunction against Employee. . . . ”
As indicated by language quoted from the decree of temporary injunction, covenants of the individual defendants were construed by the court below to mean that each individual defendant, save Schriever, was to keep secret from all others the identity of any customer whose identity was ascertained as such by reason of his employment. Such matter may in many instances be a “trade secret”, though the term would not ordinarily apply thereto. It is commonly considered by the authorities along with discussion upon the law applicable to trade secrets, though distinguished therefrom. The same principles of law are applicable where it is factually determined that customer lists, etc., truly comprise confidential information belonging to a fiduciary and outside what might be termed the public domain. See 28 A.L.R.3d, p. 7, Annotation: “Former Employee’s Duty, In Absence of Express Contract, Not to Solicit Former Employer’s Customers or Otherwise Use His Knowledge of Customer Lists Acquired in Earlier Employment”; 165 A.L.R., p. 1453, Annotation : “Implied obligation of employee not to use trade secrets or confidential information for his own benefit or that of third persons after leaving the employment”; and 30 A.L.R.3d, p. 631, Annotation : “Employee’s Duty, In Absence of Express Contract, Not to Disclose or Use In New Employment Special Skills or Techniques Acquired in.Earlier Employment”.
By contractual agreement the interested individual defendants removed any question of whether the identity of such customers amounted to confidential information secured by reason of the fiduciary relationship incident to their employment. Of course, as applied to the" defendant Schriever, not having signed any contract, the same thing might not be true, for the names of the customers and the credit information about them might have been part of the public domain, or otherwise readily obtainable. Resolution of that question might be important upon trial of the merits on application for permanent injunction. However, the issue of its confidential character was raised by plaintiffs’ evidence, under pleadings, and therefore the trial court was free to treat it as established for purposes of the temporary injunction proceedings and place restraint upon Schriever as well as the other individual defendants.
That action of the court would be proper because truly confidential information secured by reason of a fiduciary relationship may not be used or disclosed to the fiduciary’s detriment irrespective of an agreement not to do so. K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782 (1958); Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958); Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Fort Worth Tex.Civ.App., 1959, writ ref., n. r. e.), and other cases therein cited. There was no abuse of discretion in determining that use or disclosure of the confidential information should be temporarily enjoined.
However, in the instant case and as applied to defendant Fenn the status quo to be preserved would not include any prohibition of his using or imparting the knowledge of the names of or credit information concerning customers of anyone other than Womack of Houston (the employer for which he had signed his contract). Therefore it might be said that the jurisdictional authority of the trial court was never invoked so that it was authorized to enjoin Fenn’s use or disclosure of some other Womack company, as, for example Womack of Dallas. To the extent the in-junctive decree purported to do so these provisions should be modified by a limitation directed by this appellate court.
Exactly the same thing might be said of all the other individual defendants, whose contracts were with Womack of Dallas, as applied to use of or disclosure of confidential information of prospects who were not the customers of Womack of Dallas.
The decree of the trial court was too extensive. But that would not be something which would constitute cause to condemn it as an abuse of discretion. Rather does it exhibit an attempt to act in an area and upon subject matter when the authority to act had not been invoked — where the law would “withhold the hand of the court.”
As applied to a use of confidential information which was the property of the employer enjoinder would be proper. Enjoining its disclosure to another would likewise be proper. And if the evidence revealed that the very use of such confidential information outside the applicable trade area would amount to its disclosure to others as persons who in reasonable probability would make use of it in competition with or to the detriment of the employer in its trade area a consequence would be to expand the scope of the status quo which the court could decide should be preserved by temporary injunction. Such was the situation in the instant case. The trial court was entitled to conclude for purposes of injunction, and pending hearing on the merits or hearing of a motion to vacate the temporary injunction, that any use of the confidential information would amount to disclosure probably operative to the employer’s detriment in its trade area.
In view of the foregoing the decree of temporary injunction .as applied to the individual defendants may be reformed so as to confine it to use of or imparting to any other person, firm or corporation, knowledge of the identity or credit information concerning customers of the particular plaintiff who was the employer of the individual concerned. Specifically, in the case of Fenn, this would mean customers of Womack of Houston, and in the case of the other individual defendants this would mean Womack of Dallas. In no case, however, would it mean knowledge of the identity or credit information concerning customers outside the employer’s trade area, as of affiliated or subsidiary companies having a different trade area and different customers.
The individuals who were defendant, or some of them, organized the defendant company, Wright Hydraulics, Inc., to engage in a business competitive to that of the plaintiffs. Where any individual defendant is temporarily enjoined it would be proper to likewise enjoin Wright Hydraulics, Inc., because the evidence showed that such company was a device and alter ego through which such individual defendant accomplished, or attempted, a breach of his express or implied covenant not to use or disclose confidential information belonging to his fiduciary. Of course the temporary injunction decree in restraint of Wright Hydraulics, Inc., would be modified in conformity with the aforementioned modification of the decree in restraint of the individual defendants.
At an earlier point in the opinion we indicated the extent and form of our reformation and modification of the temporary in-junctive decree of the trial court in respect of the action and threatened action to engage in competition with the two named plaintiffs.
As applied to the temporary enjoinder of any use of or disclosure of confidential information by the individual defendants, and the temporary enjoinder of Wright Hydraulics, Inc., from any like use and from any use of their confidential information including such of it already disclosed, we have held that there may be appropriate modification of the decree, with our modification specified.
Our conclusion and holding is that the temporary injunction should be modified so that its scope is limited as described herein-above; as so modified, it is affirmed. |
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J. G. WALLER, Appellant, v. MISSOURI CITY STATE BANK, Appellee.
No. 617.
Court of Civil Appeals of Texas, Tyler.
May 25, 1972.
Rehearing Denied June 22,1972.
Sallas, Griffith & Meriwether, Joe E. Griffith, Crockett, for appellant.
Urban, Coolidge, Pennington & Scott, Bryan W. Scott, Houston, for appellee.
MOORE, Justice.
Appellant, J. G. Waller, seeks a reversal of a summary judgment granted in favor of appellee, Missouri City State Bank. Appellee, Missouri City State Bank, hereinafter sometimes referred to as the Bank, sued appellant, J. G. Waller, alleging that on May 14, 1969, appellant Waller executed arid delivered to the Bank a continuing guaranty agreement under the terms of which he guaranteed the prompt payment of all indebtedness that was then due and owing, or thereafter might become due and owing the Bank by Davy Crockett Industries, Inc., not exceeding the aggregate principal amount at any one time of $52,000.00. Appellant answered with a verified denial of failure of consideration and also denied generally the allegations of the petition. Appellee, Missouri City State Bank, filed a motion for summary judgment. After a hearing upon the motion for summary judgment, the trial court rendered a summary judgment in favor of ap-pellee Bank for the sum of $29,910.90, the amount due and owing on the note, together with accrued interest amounting to $5,608.21 plus attorney’s fees of $3,551.91. Appellant, J. G. Waller, duly perfected this appeal.
The principal contention urged by appellant by his sole and only point of error is that the summary judgment evidence created a disputed issue of fact upon the question of whether or not the guaranty agreement was supported by consideration. Therefore, he maintains that since there was a fact issue to be tried, the trial court erred in rendering a summary judgment. As we view the record, the point is without merit. We accordingly overrule the point and affirm the judgment rendered by the trial court.
At the time Davy Crockett Industries, Inc. executed the note in question on April 30, 1969, as well as at the time appellant executed the continuing guaranty agreement on May 14, 1969, appellant owned 40% of the stock in Davy Crockett Industries, Inc., and was the chairman of its board of directors. At the same time he was also chairman of the board of directors of Missouri City State Bank and owned something in excess of 50% of the stock in the Bank. Appellant sold his interest in the Bank prior to this suit. The record shows that the note in question matured on October 29, 1969; that the same was past due at the time of trial; and that the unpaid balance amounted to the sum of $29,910.90, exclusive of interest and attorney’s fees. The undisputed evidence further shows that the Bank is the present owner and holder of the note. Appellant admitted that at the time he executed the guaranty agreement he knew of the outstanding note executed by Davy Crockett, Industries, Inc. to the Bank in the amount of $52,000.00 and that the Bank had demanded payment.
The guaranty agreement, which appellant admits having executed, provides in part as follows:
“WHEREAS, Davy Crockett Industries, Inc., of the County of Harris, Texas, hereinafter called the Borrower, may, ' from time to time, become indebted to the Missouri City State Bank, hereinafter called the Bank:
“Now for a valuable consideration to the undersigned, hereinafter called the ‘Guarantors’, moving from the Bank, the Guarantors jointly and severally, for themselves, their heirs, executors and administrators, hereby guarantee to the Bank, its successors and assigns the prompt payment at maturity of any and all indebtedness that is now, or at any time hereafter may be or become, owing to the Bank, its successors or assigns from the Borrower not exceeding in the aggregate principal amount at any one time Fifty-two thousand and no/100 Dollars ($52,-000.00), according to the tenor and effect of the note or notes evidencing said indebtedness, together with any and all reasonable costs of collection, including 10% of the said indebtedness additionally as attorneys’ fees should this contract be placed in the hands of attorneys for collection or should it be collected through any court; and any and all renewals of said indebtedness or any part thereof regardless of the form by which said renewals may be evidenced. The word ‘indebtedness’ shall be construed to mean all indebtedness of the Borrower, direct and/or indirect and howsoever evidence, whether by notes, drafts, acceptances, overdrafts, or otherwise.
“This instrument is intended to be, and is, a continuing guaranty, and shall apply to and cover all indebtedness and renewals thereof above mentioned or described. * * * ” (Emphasis Supplied).
Other provisions show that the agreement was an “absolute” guaranty in that appellant’s liability did not depend on the exercise by the Bank of reasonable diligence to enforce payment against the principal, nor to subject pledged property to the payment of its debt.
Rule 166-A, Texas Rules of Civil Procedure, provides for a summary judgment in the following language:
“(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
It is well settled that a summary judgment is proper not only where there is no issue as to any material fact but also where the record shows the movant is entitled to a judgment as a matter of law. Drake v. First Nat. Bank, Mercedes, 254 S.W.2d 230 (Tex.Civ.App., San Antonio, 1952, n. w. h.); Hatter v. Worst, 390 S.W.2d 293 (Tex.Civ.App., Amarillo, 1965, writ ref., n. r. e.). As we view the record, there is no dispute as to any of the material facts. The sole and only dispute seems to be whether or not the undisputed facts establish lawful consideration.
Appellant argues that there was no lawful consideration for the continuing guaranty agreement. He relies on the general rule that where the contract of guaranty is entered into independent of the transaction which created the original or present debt or obligation, the guarantor’s promise must be supported by a consideration distinct from that of the present debt; that consideration is not found in a mere naked promise to pay the existing debt of another. He relies upon the case of Green v. American Refining Properties, 22 S.W.2d 343 (Tex.Civ.App., El Paso, 1929). This case, as well as several other cases in this and other jurisdictions, seem to support this general proposition. See 38 Am. Jr.2d 1047, Guaranty, Sec. 45.
These principles, however, do not apply to the continuing guaranty in this instance because the guaranty here covers “all indebtedness that is now, or at any time hereafter may be or become, owing to the bank * * * not exceeding in the aggregate principle amount at any one time” of $52,000.00. Gibbs v. American National Bank of Jacksonville, 155 So.2d 651 (Fla.App., 1963); 170 So.2d 821 (Fla., 1964); Sun Oil Co. v. Heller, 248 N.Y. 28, 161 N.E. 319 (Court of App., 1928). A guaranty of the payment of past and future indebtednesses is supported by an agreement to extend future credit. 38 Am Jur.2d 1046, Guaranty, Sec. 43; Schepps v. First Security National Bank of Beaumont, 462 S.W.2d 341 (Tex.Civ.App., 1970, writ ref., n. r. e.); Gibbs v. American National Bank of Jacksonville, supra.
The clear import of the guaranty agreement in this instance is that in the event the indebtedness initially covered was reduced in amount to less than $52,000.00 and thereafter the principal debtor desired to increase the amount by a sum within said limits, the Bank was to advance the funds and the guaranty was to apply to such increase as well as the original indebtedness. While there is no showing that the amount was ever increased after it was reduced to less than $52,000.00, we nevertheless believe some benefit accrued to the principal debtor because the guaranty had the effect of making credit available to it. W. T. Rawleigh Co. v. Miller, 105 Mont. 456, 73 P.2d 552.
It is not essential that there be consideration moving directly to the guarantor. The promise is enforceable if a benefit to the principal debtor is shown. 38 Am.Jur.2d 1046, sec. 43; 38 C.J.S. Guaranty § 26c; Estes v. Oilfield Salvage Co., Inc., 284 S.W.2d 201 (Tex.Civ.App., Dallas, 1955), citing cases. In this instance the Bank’s implied promise to advance additional funds amounted to consideration flowing not only to the principal debtor, but also, through it, to appellant as a stockholder-guarantor.
The judgment of the trial court is affirmed. |
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Brinson PARKER, Appellant, v. Michael KANGERGA et al., Appellees.
No. 622.
Court of Civil Appeals of Texas, Tyler.
June 1, 1972.
liehearing Denied June 29, 1972.
Colley & Lloyd, Paul Colley, Henderson, for appellant.
Bath & Turner, T. A. Bath, Henderson, for appellees.
DUNAGAN, Chief Justice.
This suit was brought by Michael Kan-gerga and others, appellees on this appeal, against Brinson Parker, the appellant, and others who are not involved in this appeal, to recover damages for conversion of certain timber on lands belonging to appel-lees-plaintiffs by an unlawful entry upon their property and the cutting and removal of timber therefrom.
This case was submitted to a jury on eleven special issues which were answered and returned as their verdict to the court. Based on the jury verdict the court entered judgment for the plaintiffs-appellees. Brinson Parker alone appeals from the jury verdict and judgment rendered by the court.
The appellant has brought forward fourteen points of error.
He first contends that the court erred in its submission of Special Issue No. 1 because such issue as submitted amounts to a comment upon the evidence in the case.
Under this contention appellant argues that the issue, with its accompanying instructions, clearly informs the jury that the court believed and assumed that the appellant, Parker, was some sort of a trespasser with defendant-Nobles during the period of time in question and thus was prejudicial to said appellant and further that such issue constitutes a comment on the evidence in that such issue assumes that Brinson Parker was, in fact, a trespasser of some sort when the court asked the jury if Parker was a “joint trespasser.” No other issue was submitted to the jury inquiring as to whether Parker was a trespasser.
The appellees, plaintiffs in the court below, sought damages for the loss of timber unlawfully cut and removed from their lands. The appellant Parker, defendant in the court below, defended this action by a general denial — a claim that his name had been inserted in the timber deed by mistake, and that Alvin Nobles was the true owner of the timber, and he had merely loaned Nobles the money to buy the timber. Parker also alleged in his amended answer that he had never been on the lands and never cut or removed or hauled any timber therefrom; that he loaned Nobles, a co-defendant, $600.00 to purchase the timber from the grantors named in the timber deed; that Nobles prepared the timber deed, including Brinson Parker’s name as grantee therein without his knowledge or consent; and that he believed in good faith the timber deed was from the real owners. As a matter of fact Brinson Parker’s name is also shown on the face of the timber deed as the grantor. However, the deed bears four signatures who are shown to be the heirs of John Burney who were not the owners of the land the timber was cut and removed from. All of such pleadings of Parker were supported by his testimony upon the trial of this case. It was admitted and stipulated in the trial court that appellees, at all pertinent times, were the owners of the land and timber thereon in question.
Defendant Nobles by his amended answer admitted that during the period alleged, he went on this land, cut and removed the timber therefrom. This was done under the guise of the timber deed which named Parker and Nobles as the grantees as well as Parker as the grantor. It is under this timber deed that the appellant Parker and co-defendant Nobles claimed they were acting in good faith, believing that Nobles was the owner of the timber.
There is no evidence that appellant Brin-son Parker ever made any actual physical entry upon appellees’ lands or directed Nobles by any act or word to make an entry thereupon. Parker admitted that he bought pulpwood from Nobles which had been cut and removed from appellees’ lands for which he paid Nobles but that he never had received any other timber or proceeds from the sale of any other timber from ap-pellees’ lands. Parker testified that he loaned Nobles the money to buy the timber located upon appellees’ lands from the John Burney heirs. Parker also testified that he did not know that his name was in the deed at the time the same was procured by Nobles and that he did not give Nobles any authority to place his name in such deed. He further testified that he held the timber deed in question as security for the repayment of the loan made to Nobles to purchase the timber; that he had no agreement with Alvin Nobles to purchase the timber on the land involved. However, the jury found against Parker on the issues raised by these defenses.
The jury found that (a) Parker was a joint trespasser with Alvin Nobles on the land in question, (b) such trespass by Parker “was done willfully and with careless disregard for the rights of plaintiffs,” and (c) Nobles did not include the name of Parker as a grantee without the consent and knowledge of Parker. Of the fact that defendant Nobles who actually went upon the land and cut and removed the timber was a trespasser, there can be no doubt his entry was intentional, was without the consent of the true owner, and was unlawful. 56 Tex.Jur.2d 11, sec. -2. The fact that Nobles and Parker acted in good faith in reliance on the timber deed from the John Burney heirs does not alter the situation. 56 Tex.Jur.2d 16, sec. 8; 37 Tex.Jur.2d 456, sec. 3. Neither of them acquired any rights under the deed in either the land or timber, because the John Burney heirs had no rights in either to convey. In removing the timber and applying it to their own uses after it had been severed from the land, said parties were also guilty of conversion. 14 Tex. Jur.2d 16, sec. 9; 37 Tex.Jur.2d 456, sec. 3; Fenley v. Ogletree, 277 S.W.2d 135 (Tex.Civ.App., Beaumont, 1955, writ ref., n. r. e.).
It having been admitted during the trial that Nobles was the actual trespasser, then, if Parker was also a trespasser, he would necessarily be a joint trespasser. Therefore, on that question the only issue before the jury was whether Parker was a joint trespasser, and as to this issue, it was not a comment on the evidence. Spears Dairy, Inc. v. Davis, 124 S.W.2d 159, 161 (Tex.Civ.App., Beaumont, 1939, n. w. h.). The issue submitted did assume and inform the jury that Nobles, a defendant, was a trespasser. This is a proper and correct assumption since it was established as a matter of law that Nobles was a trespasser. El Paso Drive-In Cafes, Inc. v. Wilson, 467 S.W.2d 200, 203 (Tex.Civ.App., El Paso, 1971, n. w. h.); Houston Transit Co. v. Goldston, 217 S.W.2d 435, 438 (Tex.Civ.App., Galveston, 1949, n. w. h.); Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972, 977 (1949). Special Issue No. 1 is not subject to the criticism leveled against it by appellant.
Appellant next complains of the court’s explanatory instruction given in connection with Special Issue No. 1, particularly the following portions thereof:
(1) “With reference to ‘joint trespasser,’ you are instructed that such a trespass is not dependent upon personal participation.”
(2) “ * * * or subsequent ratification or adoption by one of an act of another for his benefit or in his interest.”
(3) “A ‘trespasser on land is one who, not having title thereto, and without consent of the true owner, makes entry thereon.’ ”
because such instruction amounts to a comment on the weight of the evidence. Appellant further objects to such explanatory instruction “for the reason that Plaintiffs never alleged that Brinson Parker gave any advice, issued any command, or in any way encouraged or acted in concert or in cooperation with the Defendant Alvin Nobles in the trespass, nor that he adopted or ratified any action of the Defendant Alvin Nobles as making such trespass.”
It seems to be the law in this State that liability for trespass is not dependent upon personal participation and one who aids, assists, advises or gives encouragement to the actual trespasser, or concert and cooperation in the commission of a trespass, or subsequent ratification or adoption by one of an act of another for his benefit or in his interest is equally liable with him who does the act complained of. Fenley v. Ogletree, supra; State v. Lasiter, 352 S.W.2d 915 (Tex.Civ.App., Waco, 1961, writ dis.); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 416 (1961); Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642 (1956); Kirby Lumber Corp. v. Karpel, 233 F.2d 373 (5th Cir., U. S. Courts of Appeal, originating from the U.S.District Court for the Eastern District of Texas); 56 Tex.Jur.2d 20, sec. 12; 87 C.J.S. Trespass § 13. For a party defendant to an action to be held liable, the evidence must show that he aided, assisted, advised, commanded or encouraged the commission of the trespass. Houston County Timber Co. v. Arnold Bros., 3 S.W.2d 827 (Tex.Civ.App., Galveston, 1928, writ dism., w. o. j.); 56 Tex. Jur.2d 20, sec. 11. Each of the trespassers may be held jointly liable for the whole amount of the damages. 56 Tex.Jur.2d, Trespass, p. 20, sec. 12; Thompson v. Albright, 4 Willson Civ.Cas.Ct.App. § 24, 14 S.W. 1020 (1889); Loftus v. Maxey, 73 Tex. 242, 11 S.W. 272 (1889); Diamond v. Smith, 27 Tex.Civ.App. 558, 66 S.W. 141 (1901, writ ref.).
The definition of “a trespasser on land” as defined by the trial court is identical with the language found in 56 Tex.Jur.2d 11, sec. 2, defining such term citing a number of authorities in support thereof. In our opinion the issue here under attack, including the explanatory instructions given in connection therewith, finds support in the pleadings.
Appellant asserts that the trial court erred in the submission of Special Issue No. 7 for the reason that the language of said issue informs or tends to inform or advise the jury that the court believes that a fact issue has been raised by the evidence that Parker trespassed upon appellees’ land by making physical entry thereon, willfully and with careless disregard for the rights of the appellees. This issue was based upon the pleading of ap-pellees that sought exemplary damages.
In answer to Special Issue No. 6, the jury found that the timber in question had no cash market value in its manufactured state.
As pointed out by the appellees in their brief, since the jury did not give the timber a manufactured value which would be the measure of damages for wanton and willful misconduct, this issue was not required to support the judgment entered. A careful reading of the trial court’s judgment reflects that the finding in response to Special Issue No. 7 was disregarded in the preparation and entry of the judgment, since no punitive damages were allowed. The only damages allowed were the stump-age value which would be allowed against a good faith trespasser. 37 Tex.Jur.2d 456, sec. 3.
Appellant makes the contention that the finding of the jury in response to Special Issue No. 3, considered in light of the charge as a whole, amounts to a special finding by the jury that Parker converted timber belonging to the appellees in an amount of the value of $738.09 only, and that this specific finding controls all other findings of the jury and that the judgment entered against appellant Parker by the court below cannot stand. The judgment was for the plaintiffs-appellees and against the defendants, Southland Paper Mills, Inc., Brinson Parker, and Alvin Nobles, jointly and severally, in the sum of $738.-09, and against Parker and Nobles, jointly and severally, in the sum of $4,674.26.
Appellees, in answer thereto, say the appellant overlooks the fact that two types of damages were sought: (1) for conversion as a result of the trespass, and (2) as a good faith converter.
The undisputed proof in this case was that Alvin Nobles, also a defendant, had cut and removed timber from appellees’ land of the value at the stump of $5,412.35.
Parker denied that he was a trespasser with Nobles and claimed that he was only responsible as a converter for the amount of $738.09 which he confessed to have taken through the purchase of the timber by Southland Paper Mills, Inc. This was the amount also converted by said paper mill. Under his admission that he had received $738.09 worth of timber from appellees’ land, both Parker and the Southland Paper Mill were responsible for such amount as converters in good faith. The rule of law being that one who buys property must at his peril ascertain the ownership and if he buys from one who has no authority to sell, he is a converter. Nunn v. Padgitt Bros., 161 S.W. 921 (Tex.Civ.App., Dallas, 1913, n. w. h.); Fenley v. Ogletree, supra; 14 Tex.Jur.2d 24, sec. 21. As above stated, as a joint trespasser Brinson Parker is jointly liable with Alvin Nobles for all of the timber taken.
We find no merit in the contention that the judgment should not have been rendered against Parker for the maximum amount of the damages for which he was responsible under the findings of the jury in response to Special Issues Nos. 1, 2, and 3, wherein the jury found that (1) Brinson Parker was a joint trespasser with Alvin Nobles, (2) the cash market value of the timber taken from the land by Nobles, and those acting under him, was $5,412.35, and (3) the cash market value of ‘the timber converted by Parker was $738.09.
Another contention of appellant is that there is no evidence of probative force to support the submission of Special Issues Nos. 1 and 7; that the jury’s answers to said Special Issues Nos. 1, 9, and 10 are contrary to the overwhelming weight and preponderance of the evidence. In response to Special Issue No. 9, the jury found that Nobles did not borrow $600.00 from Parker with which to purchase the timber in question. In answer to Special Issue No. 10, the jury found that Alvin Nobles did not include the name of Brin-son Parker as a party grantee in the timber deed without the consent and knowledge of the said Brinson Parker.
We look only to the favorable evidence in passing on the “no evidence” points, and the entire record in passing upon the other points of error.
There is evidence in the record that when Parker was first accused of cutting the timber on appellees’ land, he produced a timber deed stating that he had purchased the timber, had a deed to it, and exhibited the deed to Thomas Watt, an employee of M. Kangerga & Brother. This was before a lawsuit was filed.
It is shown by the evidence that Parker is a pulpwood dealer and buys pulpwood from the producer; that a producer is one that harvests and produces the timber and hauls it to a paper mill. Parker had a contract with Southland Paper Mills, Inc. and was given a certain territory in which Southland would buy pulpwood only from him. Southland did not buy pulpwood from anyone but the few contractors they had. If Nobles wanted to sell pulpwood to Southland, he would have to go through Parker. Parker had six or eight people hauling pulpwood for him. Nobles is one of the people that hauled pulpwood for him. When Nobles and others hauled pulpwood for Parker, they took it all directly from the field to Southland.
When Mr. Watt and an attorney for the appellees first asked Parker about their transaction, he did not say anything at that time about loaning Nobles $600.00 to buy the timber.
Parker first saw the timber deed conveying the timber from the Burney heirs to him and Nobles on November 9, 1968, at his store in Beckville, Texas, when Nobles delivered it to him. At that time he gave Nobles four checks in the total sum of $950.00 which included the $600.00 consideration for the timber here in question and for timber on another tract that is not here involved. These checks were made payable to Nannie Malone, Fred Burney, Mattie Lou McAllister, and Lucy Taylor, grantors in the timber deed here involved. None of these checks showed that they were a loan by Parker to Nobles, as Parker contends.
The pulpwood Nobles hauled for South-land was only for the account of Parker and the mill paid Parker for all of it, Mr. Watt testified that Parker told him that he and Nobles purchased the timber and exhibited the timber deed from the Burney heirs. The timber deed does reflect Parker and Nobles as the purchasers. However, upon the trial of the case Parker defended on the grounds hereinabove stated.
The admissions which Brinson Parker and Alvin Nobles made and their testimony subsequently given contrary to those earlier admissions were for the jury to consider. We will not lengthen this opinion by setting out other evidence which we think supports the jury’s findings complained of.
After a careful review of the entire record and following the guidelines as above set out, we have come to the conclusion that there is evidence of probative force to support the jury’s answers to the complained of issues and that said answers are not so contrary to the overwhelming weight and preponderance of the evidence to be manifestly wrong and unjust.
Finally, appellant contends that certain statements appellees’ counsel made in his argument to the jury were improper, inflammatory, and incurable and that such statements constitute reversible error; and that if no one of the statements in itself is sufficient to constitute reversible error, the cumulative effect of the complained of argument is.
Appellant complains of the following argument to the jury made by counsel for appellees: “I don’t believe that Alvin is going to get hurt much, but I will say this, that Brinson Parker shouldn’t be permitted to hide behind him, to put him up as the straw man.”
Counsel for appellant objected to such argument and requested the court to instruct the jury not to consider it for any purpose. Such objection and request was by the court overruled. Under the evidence in this case, we do not believe this argument was improper and the court did not err in overruling the objection and request. Texon Drilling Co. v. Elliff, 216 S.W.2d 824 (Tex.Civ.App., San Antonio, 1948, writ ref., n. r. e.); Wright Titus, Inc. v. Swafford, 133 S.W.2d 287 (Tex.Civ.App., Austin, 1939, dism., judg. cor.); 56 Tex.Jur.2d 568, sec. 230.
As to the other portions of the argument by appellees, objected to by appellant, the court promptly instructed the jury not to consider the testimony for any purpose. This was done at the request of appellant’s counsel.
Except where they are inherently prejudicial, objectionable statements and arguments are generally deemed cured where they are promptly withdrawn or corrected by counsel. 56 Tex.Jur.2d 683, sec. 322. An instruction by the court to the jury to disregard improper remarks of counsel is ordinarily held to overcome any harm or prejudice caused by the argument, unless the remarks are so inflammatory that their prejudicial effect could not reasonably be removed by such admonition. 56 Tex.Jur.2d 687-689, sec. 326. If the argument was improper, we do not consider it as being beyond correction by means of a proper instruction which the court in this case gave.
Moreover, before a judgment is reversed because of argument of counsel, two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App., Tyler, 1964, writ ref., n. r. e.); Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.Sup., 1964); Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953).
We do not think the argument was such as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Travelers Insurance Company v. Walston, 436 S.W.2d 582 (Tex.Civ.App., Tyler, 1969, n. w. h.).
We have considered each of appellant’s points of error and they are overruled.
Finding no reversible error the judgment is affirmed.
. “SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that Brinson Parker was a joint trespasser (as defined and explained herein) with Alvin Nobles on the land in question after November 9, 1968?
“ANSWER: ‘Yes’ or ‘No’.
“ANSWER: Yes.
“In answering the above issue, you are instructed as follows:
“A ‘trespasser on land is one who, not having title thereto, and without consent of the true owner, makes entry thereon.’
“With reference to ‘joint trespasser,’ you are instructed that such a trespass is not dependent upon personal participation.
“To be a joint trespass there must be a command, advice, or encouragement to the actual trespasser, or concert and cooperation in the commission of the trespass, or subsequent ratification or adoption by one of an act of another for his benefit or in his interest.”
. “SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that such trespass, if any, by Brinson Parker upon Plaintiffs’ land in question was done willfully and with careless disregard for the rights of Plaintiffs?
“ANSWER : ‘Yes’ or ‘No’.
“ANSWER: Yes.
“If you have answered Special Issue No. 6 ‘He was not’, and Special Issue No. 7 ‘yes’, or either of them in that manner, then answer the following Special Issue, hut, if you have answered ‘He was’, to Special Issue No. 6, and ‘No’ to Special Issue No. 7, you need not answer the following Special Issue.”
. “SPECIAL ISSUE NO. 3
“Find from a preponderance of the evidence the cash market value, if any, in Rusk County, Texas, of the timber taken from Plaintiffs’ land in question converted by Brinson Parker after November 9, 1968.
“Answer in dollars, if any, and cents, if any, in figures.
“ANSWER: $738.09.”
|
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Wayne McDONALD et al., Appellants, v. Tyler D. TODD et al., Appellees.
No. 626.
Court of Civil Appeals of Texas, Houston (14th Dist.).
May 24, 1972.
Rehearing Denied June 14, 1972.
John O. Hoyt, A. Michael Kahn, Jr., Humble, for appellants.
Kenneth R. Wynne, Bracewell & Patterson, Houston, for appellees.
BARRON, Justice.
This suit was brought by Tyler D. Todd against Wayne McDonald and Ralph W. Braden on a promissory note in the alleged balance due of $3,500.00. The note represented the purchase price for Todd’s “. . . entire right, title and interest in and to all of the office furniture and furnishings located in the Inverness Forest Subdivision Sales Office at 21614 Green-brook, Houston, Harris County, Texas, and to the sale of homes located in the Inverness Forest Subdivision, . . .”. The sales office was actually the property of Harris County Land Company, and although Todd occupied the office at the time the promissory note was executed, his occupancy was terminable at the will of Harris County Land Company, in which Todd owned no interest. The defendants had worked for Todd from January until May of 1970, when defendants took possession under the alleged sale as above.
Subsequently, acting pursuant to unquestioned authority, Harris County Land Company evicted McDonald and Braden from the sales office, at which time defendants discontinued payments to Todd on the note.
Summary judgment was entered in favor of Todd by the trial court in accordance with the terms of the note, for the principal sum of $3,500.00, with interest and attorney’s fees, and in favor of certain cross-defendants named below. Hence, this appeal by McDonald and Braden as appellants.
Appellants pleaded affirmatively partial failure of consideration and fraud, and in addition, filed a cross-action against Todd, Harris County Land Company, a corporation, Donald McGregor, Jr. and Doyle Stuckey, alleging a conspiracy on the part of said cross-defendants to put appellants out of business, to terminate their business as central sales agents of Inverness Forest Subdivision, and to cancel the original $6,000.00 note, the balance of which was originally sued upon.
Appellants have brought forward four points of error essentially claiming that there are controlling fact issues involved in the case and that summary judgment was improper.
Apparently, on hearing of this summary judgment motion, it was announced to the trial court that the original of the note had been mislaid, but that it would be produced at the proper time. This was apparently not done. However, Todd made an affidavit stating that an accurate reproduction of the note was tendered, and that he (Todd) was the present owner and holder of such note, which had never been assigned or transferred in any manner. Moreover, the appellants admitted executing and delivering such note payable to the order of Todd. See Perkins v. Crittenden, 462 S.W.2d 565, 567 (Tex.Sup.1970). Whether the above establishes the note and obligation in the hands of Todd as a matter of law is doubtful in the absence of an indemnity provision, or some similar safeguard in the judgment of the court for the protection of appellants. However, we do not base our decision on the above matters.
The summary judgment evidence shows from the depositions of McDonald and Braden, duly brought forward in this record, that material fact issues exist on the question of liability. Their testimony shows specifically that they were told by Todd that, under the sale, appellants had the right to use and occupy the sales office until all houses were sold in Inverness Forest Subdivision, and that the right to use the sales office until such time was unequivocally included in what appellants bought from Todd. There was nothing in writing shown to authorize Todd’s use of the office, though this was not known by appellants.
The owner of the sales office was Harris County Land Company, which dispossessed appellants through its President, a Mr. McGregor. There was, however, a proposed contract in writing, by which Todd attempted to sell appellants similar rights at a total price of $21,250.00. In that contract it was stated on page three of the agreement, that “. . . all parties recognize that Harris County Land Co. own (sic) the sales office structure and that upon the request of the owner the property must be vacated within 30 days.” However, the testimony further shows that when appellants reached the figure of $21,250.00 they reád little further, that such price was “ridiculous”, and that neither of them read, nor were they required to read, the entire contract or the above provision explaining ownership and possession of the office. Both testified that they did not read it and that it was not mentioned to them. It was not until later, in the offices of their attorney, that they became familiar with such provision. The latter was after they had been ousted from the sales office. Both appellants testified that Todd led them to believe that he had the effective right to contract with them as above stated. They both testified that the right to sell houses in Inverness Forest is of no value if the sales office, on location, is taken away. The proposed contract above was never executed, and so far as we can determine, the note was the only written instrument involved in the transaction. Consideration may here be shown by oral testimony. Taylor v. Merrill, 64 Tex. 494, 496 (Tex.Sup.1885); Rubin v. Adams, 368 S.W.2d 42, 44 (Tex.Civ.App.—Amarillo 1963, writ ref’d n. r. e.).
We believe that fact issues have been raised by appellants on their affirmative defenses. Where appellee (Todd) moves for summary judgment in an action in which the appellants have pleaded affirmative defenses, appellee’s motion cannot be sustained when his opponents, appellants, show that there are disputed fact issues upon the affirmative defenses. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (Tex.Sup.1958); Tunks, Texas Summary Judgment Practice, 13 S.Tex.Law J. 3-4 (1971). In this instance the negative burden of proof usually falling on the movant, Todd, does not apply, at least so far as the production of evidence is concerned.
The summary judgment evidence shows, without dispute, that in taking possession of the sales office, Harris County Land Company, Donald McGregor, Jr., and Doyle Stuckey were exercising a right to which they were entitled, i. e., taking possession lawfully of property belonging to a corporation owned by them. We see no possible liability on the part of said cross-defendants, and that portion of the judgment is therefore affirmed.
For the reasons above stated, the summary judgment in favor of appellee, Todd, is reversed and remanded, and the summary judgment in favor of the above cross-defendants, Harris County Land Company, Donald McGregor, Jr., and Doyle Stuckey, is affirmed. The actions are severed accordingly. |
sw2d_482/html/0053-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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The TRAVELERS INSURANCE COMPANY, Appellant, v. The CITY OF WEST COLUMBIA et al., Appellees.
No. 15908.
Court of Civil Appeals of Texas, Houston (1st Dist.).
May 11, 1972.
Rehearing Denied June 29,1972.
McLeod, Alexander, Powel & Apffel, Ervin A. Apffel, Jr., C. Michael Davis, Galveston, for appellant.
A. J. Watkins, John W. Lee, Houston, for appellee; Watkins & Hamilton, Houston, of counsel.
COLEMAN, Justice.
This appeal results from a wrongful death action brought by Mrs. Ruth Ga-jewsky, individually and as legal guardian of her minor son, David W. Gajewsky, Jr., and Joe F. Gajewsky, Sr. and his wife, Stella Mae Gajewsky, hereinafter referred to as plaintiffs, against the City of West Columbia, for the death of David W. Ga-jewsky, Sr., the husband of Ruth Gajew-sky.
The issue here is whether an agreement between the plaintiffs and the City, termed an option agreement, is as a matter of law a compromise settlement agreement, rendering the parties in the agreement liable to the compensation insurance carrier for the money which the plaintiffs are entitled to demand from the City under the terms of said agreement, such sum being less than the death benefits paid to plaintiffs.
On July 24, 1970, David Wayne Gajew-sky, Sr. was employed by the De Angelo Construction Company, was injured while in the scope of employment and died as a result of the injuries. The appellant herein carried workmen’s compensation insurance on the De Angelo Company and paid $16,107.28 as death benefits as provided by the Workmen’s Compensation Act.
Thereafter, the plaintiffs filed a lawsuit against the City of West Columbia alleging that employees of the City caused the death of David W. Gajewsky, Sr. Appellant, pursuant to Article 8307 § 6a, Vernon’s Ann.Civ.St., intervened to recover the amounts paid by them to the plaintiffs, together with costs and attorney’s fees.
The suit was tried before a jury on October 11, 1971. The plaintiffs presented certain inconsequential deposition testimony and then rested. (SF 6). At that time, appellant announced in open court that he had learned that the plaintiffs had entered into what was labeled as an “Option Agreement” on October 13, 1971 with the City and its insurance carrier, Hartford Accident & Indemnity Company, hereinafter referred to as defendants. Appellant asked for and received a recess to the following day to decide whether to proceed with the evidence on behalf of plaintiffs. Appellant then declined to go forward with evidence.
The defendant City moved for either an instructed verdict or in the alternative that the case be withdrawn from the jury and judgment rendered in its favor. The appellant, as intervenor, moved that the court render judgment for them alleging that the “option agreement” was in reality a compromise settlement and therefore the proceeds paid pursuant to it were subject to said Article 8307 § 6a. The court overruled appellant’s motion and rendered judgment for the City that the plaintiffs take nothing.
Appellant presents only one point of error for review. It complains of the overruling of its motion because the “option agreement” is a compromise settlement, the proceeds of which are subject to its subro-gation claim by reasons of Article 8307 § 6a. V.A.C.S., providing:
. . .If compensation be claimed under this law by the injured employé or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employé in so far as may be necessary and may enforce in the name of the injured employé or of his legal beneficiaries or in its own name and for the joint use and benefit of said em-ployé or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employé or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employé or his beneficiaries . . .”
Appellee contends that no settlement has been shown; that the appellant is asking for an advisory opinion because no payment has been established, and that the option agreement settles nothing.
The agreement provides that when the plaintiff’s cause of action is finally disposed of, if the plaintiffs are awarded more than $11,500.00, then the defendants have an irrevocable right to purchase that judgment or decree for any amount, but not less than $11,500.00. If the judgment is for a sum less than $11,000.00, then the defendants are obligated to purchase the judgment for any amount the plaintiffs designate, but no more than $11,000.00. Paragraphs IV and V read:
IV.
“Each party hereto agrees to protect and save harmless the other party from and against all claims, demands or causes of action of anyone, not a party to this agreement, to any interest in the cause of action, judgment, decree or money hereinabove referred to; provided, however, that the obligation of Party of the First Part to protect and save harmless Party of the Second Part shall not apply to any final judgment or decree rendered by a court of competent jurisdiction requiring Party of the Second Part to pay any sum to The Travelers Insurance Company by reason of the plea for recoupment and in intervention filed herein by the Travelers Insurance Company.”
V.
“It is stipulated and agreed that this is not a settlement of any cause of action or claim for damages which Party of the First Part, or any individual who is a part of the group collectively designated as a Party of the First Part, may have against Party of the Second Part. It is further stipulated and agreed that this instrument does not constitute a release of Party of the Second Part, it being the intention of the parties to this option agreement that Party of the Second Part shall have, and is here granted, an option and an obligation to purchase any judgment or final decree herein for the amounts and in the manner herein-above set forth.”
The effect of the agreement was to compromise and settle the plaintiffs’ cause of action, thus substantially eliminating their further interest in the suit. By reason of Article 8307 § 6a, V.A.C.S., appellant has become subrogated to the rights of plaintiffs against the City. It is entitled to be repaid the money paid out on the claim for workmen’s compensation before plaintiffs are entitled to receive anything from the City whether by judgment or compromise settlement. Capitol Aggregates, Inc. v. Great American Insurance Company, 408 S.W.2d 922 (Tex.1966); Ft. Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865 (19S2).
The exact amount of money to be paid plaintiffs is, by the agreement, to be determined by plaintiffs, subject to the proviso that in no event will the City be required to pay more than $11,000.00. However plaintiffs have received a contract right to demand the payment of $11,000.00, which became fixed by the rendition of judgment by the trial court. Appellant is subrogated to this right by virtue of said Art. 8307 § 6a.
The City’s negligence need not be judicially established before appellant is entitled to assert its claim for subrogation. Since the beneficiaries of the deceased employee have entered into a settlement, both the beneficiaries and the City are liable to appeflant for the amount due in settlement of beneficiaries’ claim up to the amount of compensation paid by appellant. Pan American Insurance Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644 (1961).
The judgment of the trial court is reversed and judgment is here rendered that Travelers Insurance Company recover judgment against the City of West Columbia and Ruth Marie Gajewsky, David Wayne Gajewsky, a minor, Joe S. Gajews-ky, Sr., and Stella Mae Gajewsky, jointly and severally, in the sum of Eleven Thousand ($11,000.00) Dollars. The judgment of the trial court awarding a fee of $250.-00 to Marcial Knapp, guardian ad litem, to be paid by the City of West Columbia is affirmed. All costs of court are taxed against the City of West Columbia. |
sw2d_482/html/0056-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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SILCO, INC., Appellant, v. Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas et al., Appellees.
No. 11928.
Court of Civil Appeals of Texas, Austin.
June 7, 1972.
Rehearing Denied June 28, 1972.
Jenkens, Spradley & Gilchrist, Phillip N. Smith, Jr., Dallas, for appellant.
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., John R. Grace and Wardlow Lane, Asst. Attys. Gen., Austin, for appellees.
PHILLIPS, Chief Justice.
Silco, Inc. the Appellant herein and Plaintiff below, brought this suit against the State Comptroller, and others, Appel-lees here to recover all or a portion of $52,372.25 which is a franchise tax payment made under protest by Appellant Sil-co for the tax year ending December 31, 1969. Trial was had upon stipulated facts, wherein the trial court rendered judgment against Appellant and in favor of Appel-lees.
We affirm.
Appellant is before us on one point of error, which is the error of the trial court in failing to render judgment for Silco for all or a portion of its claim under the agreed facts.
We overrule this point.
The pertinent facts are not disputed. In 1969 Silco was a holding company comprised of four corporations. These were a Texas-Chartered bank (Exchange Bank & Trust Company), two insurance companies and a Texas-Chartered savings and loan company. Each of these four corporations owned by Silco were exempt from franchise taxation in 1969.
The two insurance companies and the savings and loan company are each exempt under Tex. Tax.-Gen. Ann. art. 12.03, Title 122A, V.A.T.S. The bank is exempt by administrative interpretation of the office of the Comptroller.
In 1969 Silco received $1,003,153 cash dividends from its Exchange Bank & Trust Company (state bank) stock. In calculating franchise tax liability in the past, it had been the practice of the Comptroller not to include dividends received by a corporation from a national bank as gross receipts from the corporation’s business done in Texas. The reason for such interpretation is that national banks are regarded as foreign corporations for purposes of franchise tax calculation.
Appellant contends that in 1969 Silco was a holding company which functioned merely as an intermediary or conduit receiving dividends and interest from the corporations it owned. That this fact, coupled with the fact that each of Silco’s corporate components was exempt from franchise taxation, both logic and equity dictate that the substance, as opposed to mere form, of Silco’s existence and operation be given effect by extending the exemptions allowed each of Silco’s corporate components to Silco itself.
Appellant also contends that on both legal and equitable bases, it should be freed from the financial burden of franchise taxation. That to refuse such freedom violates the Legislature’s intent and purpose in promulgating the franchise tax exemptions allowed under Article 12.03, supra, our Article 342-908, V.C.S. of the Texas Banking Code.
We cannot agree with Silco’s position here. Exemptions from the franchise tax must be strictly construed. Houston Belt & Terminal Ry. Co. v. Clark, 122 S.W.2d 356 (Tex.Civ.App.1938, affirmed 135 Tex. 388, 143 S.W.2d 373, Tex.Com.App.). This same rule applies in the construction of all tax exemption statutes. 84 C.J.S. Taxation § 227, p. 437; 84 C.J.S. Taxation § 231, p. 448; 84 C.J.S. Taxation § 240, p. 458. Benevolent & Protective Order of Elks v. City of Houston, 44 S.W.2d 488 (Tex.Civ.App.1931, writ ref’d); Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 5 S.W. 519 (1887).
A corporation cannot be brought within an exemption statute merely because it is connected, through ownership or otherwise, with a corporation exempted from the tax. Each corporation is, under law, a separate legal entity. The fact that the capital of a taxable corporation is invested in stock or securities that are exempt from taxation does not relieve that corporation from a franchise tax measured by such exempt securities. Werner Machine Co., Inc. v. Director of Division of Taxation, Department of Treasury, State of New Jersey, 350 U.S. 492, 76 S.Ct. 534, 100 L.Ed. 634 (1956).
The second part of Appellant’s point of error raises the question of whether dividends received from state banks should be included as part of Appellant’s “gross receipts from business done in Texas.” Article 12.02, Title 122A, Taxation-General, V.C.S. provides that a corporation’s taxable capital shall be determined by the proportion that the gross receipts from its business done in Texas bears to the corporation’s total gross receipts.
Appellant contends that its dividend, from a state bank may not be considered as gross receipts from Texas business because the Comptroller on two occasions, has not required dividends from a national bank in the formula used to calculate the tax.
Appellant contends that such divergent treatment of dividends from state and national banks violates Article 342-908, Title 16, Banks & Banking, V.C.S. Article 342-908 provides:
“State and national banks are hereby declared to be within the same class under the Constitution and laws of this state. It is not the intention of the Legislature to discriminate between state banks, national banks, and private banks. To the extent that the State of Texas has power to legislate with reference to national banks, all laws of this state shall apply alike to state banks, private banks, and national banks domiciled in this state; and state banks and private banks shall be subject to only such taxes heretofore or hereafter imposed by the state, or any political subdivision thereof, as could lawfully be imposed upon such state banks or private banks were they operating as national banks. As amended Acts 1963, 58th Leg., p. 134, ch. 81, § 7; Acts 1965, 59th Leg., p. 1527, ch. 666, § 1, eff. June 18, 1965.”
This statute requires only that state and national banks be treated equally under the state laws. The statute does not in any way require an equal treatment of any other corporations that are not state banks or national banks.
Appellant is neither a state bank nor is either of the other two types of corporations in which it has stock.
The judgment of the trial court is affirmed.
Affirmed.
. The reason for such administrative interpretation is that national banks were exempt in 1969 under Federal statute from franchise taxation. Thus the Comptroller ruled state banks also exempt in order to comply with Article 342-908 of the Texas Banking Code.
. See Article 12.01(1) (a), Title 122A, Taxation-General, Vernon’s CiviLStatutes.
|
sw2d_482/html/0059-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Rachel Gansel PIPKIN, Individually and as Co-Independent Executrix of the Estate of Enid T. Hays, Deceased and Eda Frances Gansel, Appellants, v. Robert D. HAYS, Individually and as Co-Independent Executor of the Estate of Enid T. Hays, Deceased, et al., Appellees.
No. 11923.
Court of Civil Appeals of Texas, Austin.
June 21, 1972.
Rehearing Denied July 12, 1972.
Gibson, Ochsner, Adkins, Harlan & Hankins, Jon Oden, Amarillo, for appellants.
Sam McCollum, III, Brady, for appel-lees.
O’QUINN, Justice.
This is a declaratory judgment action brought by a devisee and one of the two independent executors of a will, seeking construction of a provision in the will affecting the burden of taxation.
The question to be decided is whether, by use of the phrase “any and all inheritance taxes,” the testatrix intended the term to encompass all “death taxes,” including “estate taxes.”
Enid T. Hays made her will on July 10, 1953, in which she designated Rachel Gan-sel Pipkin as executrix and Robert D. Hays as executor under provisions constituting them independent executors. Dr. Aaron Ross Hays, husband of the testatrix, was named residuary devisee under the will, but after Dr. Hays predeceased the testatrix, the residue of the estate passed by intestate, under the statutes of descent and distribution, to the only child of testatrix, Robert D. Hays, one of the executors.
The two executors were unable to agree on whether the federal estate taxes should be paid by the devisees in proportion to the property each took under the will or should be paid out of the residue of the estate. Hays insisted the federal estate tax should be borne proportionately by the several legatees, and Rachel Gansel Pipkin contended the estate taxes were payable from the residue only of the estate.
The testatrix made specific devises to six persons, including Rachel Gansel Pip-kin, one of the executors, who brought this lawsuit, joined by one other legatee under the will. The clause in the will plaintiffs seek to have construed reads:
“It is my desire and I hereby direct that each of my devisees and legatees under this will shall pay his or her proportionate part of any and all inheritance taxes, the amount to he paid by each devisee and legatee to be determined by the value of the property passing to each devisee and legatee under this will.” (Emphasis added)
The trial court held that the clear intention of the testatrix, as expressed in the will, was that each devisee and legatee would bear a proportionate part of all federal estate taxes levied against the estate and that each such person would pay the state inheritance tax levied on the particular property passing to the devisee.
Plaintiffs below have appealed and bring two points of error. We will overrule the points of error and affirm the judgment of the trial court.
In the absence of contrary directions in the will as to placement of the tax burden, estate taxes ascribable to testamentary assets may not be apportioned, and the tax burden “is determined by the rules of law applicable to debts and expenses of administration.” Sinnott v. Gidney, 159 Tex. 366, 322 S.W.2d 507, 513 (1959), 74 A.L.R.2d 544; Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779 (1951). With marked uniformity, the courts of this state and other jurisdictions distinguish estate taxes from inheritance taxes as stated in Bethea v. Sheppard, 143 S.W.2d 997, 1002 (Tex.Civ.App.Austin 1940, writ ref.) : “ . . . the federal estate tax is imposed upon the right of grantor ... to transfer property, and . . . the inherit-anee or succession tax ... is imposed upon the right to receive or succeed to the possession or enjoyment of property.” See Cahn v. Calvert, 159 Tex. 385, 321 S.W.2d 869, 872 (1959).
If Enid T. Hays, the testatrix whose will is subject to construction in this lawsuit, had given no directions as to the tax burden, the federal estate tax would have been payable from funds other than the shares or interests passing to the named devisees, and each of the devisees would have received his or her interest burdened only with the inheritance tax imposed by the state. Sinnott v. Gidney, supra, 322 S.W.2d 513; Simco v. Shirk, 146 Tex. 259, 206 S.W.2d 221 (1947).
To say that the testatrix succeeded in shifting the tax burden, so as to require the devisees to bear proportionately the federal estate taxes, the words used in the will must be found to express clearly the intent of the testatrix to shift the burden from her estate to the devisees in proportion to the shares or interests each of them took under the will. Norton v. Jones, 210 S.W.2d 820, 822 (Tex.Civ.App.Dallas 1948, writ ref.). A construction that gives effect to all the language of the will is preferred to an interpretation that treats part of the language as superfluous. Norton v. Jones, supra.
If the language in the will under examination is read to limit payment in “proportionate part” of succession taxes only, the entire provision is superfluous, being merely a direction that an existing tax rule be followed, and not a direction that the tax burden be shifted. But if the words “any and all inheritance taxes” are read to include any and all death taxes, not excluding federal estate taxes, the provision takes on meaning, for under such construction taxes not otherwise a burden of the individual beneficiaries are shifted to them in proportion to the interest each received under the will.
Another particular suggesting that the testatrix meant to relieve the residue of her estate from the full burden of estate taxes is that by shifting the burden proportionately to all devisees she increased the gift to her husband, to whom she expressly devised the residue. This reasoning is not rendered less valid by the fact her husband died first and the residue passed instead to Robert D. Hays, who was the only offspring of the testatrix.
It is not uncommon for the term “inheritance taxes” to be used in its broadest sense as “death taxes” or “death duties” so as to include estate taxes, although by strict definition under court decisions an estate tax differs from succession or inheritance tax. See 37 A.L.R.2d 83, cases cited fn. 16; also, Russell v. Cogswell, 151 Kan. 14, 98 P.2d 179; Gratz v. Hamilton, Ky., 309 S.W.2d 181; Beals v. Magenis, 307 Mass. 547, 31 N.E.2d 20; Corbin v. Baldwin, 92 Conn. 99, 101 A. 834.
At the time the testatrix executed her will in 1953, Article 7144a, Vernon’s Ann. Civ.Sts., levied “an inheritance and transfer tax” upon the “net estate of every decedent.” (Acts 1933, 43rd Leg., p. 581, ch. 192, sec. 2b). The effect of the tax thereby imposed was to place a tax on the estate of decedent and, strictly speaking, the tax was not an inheritance tax. The same statute was carried forward in the revision in 1959 of the inheritance tax statutes under the heading, “Additional Inheritance Tax,” although the tax was and is a tax on every decedent’s estate. The present statute is Article 14.12, Title 122A, Taxation-General, under the 1965 revision, Acts 1965, 59th Leg., p. 830, ch. 402, sec. 7. (For discussion, see Edward W. Bailey, Texas Practice, Vol. 10, Texas Law of Wills, sec. 630).
For the words of the testatrix dealing with the tax burden to have meaning and permit that clause to remain an integral part of the will, her effort to place the tax burden must be construed as clearly expressing an intent to charge the shares and interests of the beneficiaries with the estate tax which otherwise would be paid from the residue after partition. After construction by a court, the will should be left intact if that is judicially possible, and a construction that results in striking down a clause is to be avoided when it is possible to arrive at a construction giving effect to the clause. Lockett v. Wood, Tex.Civ.App., 84 S.W.2d 798, affirmed Peden Iron and Steel Co. v. Lockett, 131 Tex. 287, 115 S.W.2d 405 (1938); Norton v. Jones, supra.
The language of the testatrix was broad and comprehensive to take in “any and all inheritance taxes” not excluding federal estate taxes. We conclude that the testatrix intended, and by her words expressed the intent, to shift the burden of estate taxes from the residue of her estate to the several beneficiaries named in the will.
Appellants’ points of error are overruled. The judgment of the trial court is in all things affirmed.
Affirmed. |
sw2d_482/html/0062-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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AMERICAN SAVINGS AND LOAN ASSOCIATION OF HOUSTON, Appellant, v. Mrs. Ray D. (Jeanne) JONES, Administratrix of the Estate of Erma E. Newton, Deceased, Appellee.
No. 628.
Court of Civil Appeals of Texas, Houston (14th Dist.).
May 24, 1972.
Rehearing Denied June 14, 1972.
Dermot Rigg, Lee, Brown, Moss & Rigg, Houston, for appellant.
Mike M. Hale, Baer, Cryan, Keen & Kelly, Houston, for appellee.
TUNKS, Chief Justice.
Mrs. Ray D. (Jeanne) Jones, Administra-trix of the Estate of Erma E. Newton, Deceased, filed this suit against American Savings and Loan Association of Houston, hereafter called American, to set aside a foreclosure sale and to recover damages for loss of use of the property upon which there was foreclosure. After a non-jury trial the trial court rendered judgment for the plaintiff administratrix, setting aside the trustee’s deed and awarding a recovery of $6,958.00. American in this appeal concedes the validity of that portion of the trial court’s judgment setting aside the trustee’s deed, but seeks reversal of that portion of the judgment awarding a monetary recovery.
On May 23, 1962, Mrs. Erma E. Newton, a feme sole, executed a deed of trust on the tract of property here involved. The deed of trust was executed to secure an installment note owed by Mrs. Newton to American. On November 1, 1966, Mrs. Newton died intestate. Her debt to American had not been fully paid. After Mrs. Newton’s death the installments provided for in the note were not paid when due. American had notice of Mrs. Newton’s death. On December 12, 1966, American matured the note and posted the property for foreclosure. On January 3, 1967, the property was sold under the power of sale in the deed of trust. American had possession of the property from January 3, 1967, to the date of the trial. On April 20, 1967, Mrs. Jones was issued letters of administration. In such capacity this suit was filed by her.
Insofar as this case presents the question of the administratrix’ right to recover judgment for the value of the possession of the property during the time it was possessed by American the parties agree that this is a case of first impression. Both parties rely on the language and holding of Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956). In that case it was held that the death of the grantor in a deed of trust does not revoke or suspend the power of sale contained therein, that a sale by such a trustee after the death of the grantor before the expiration of four years and before the opening of an administration of his estate is not void, but is voidable, and that such sale may be voided if administration is opened within the time allowed by law.
In the Pearce case the Supreme Court recited that its answer to the question there presented was “largely on the basis of policy considerations.” 291 S.W.2d 311. It declined to make a holding that would encourage foreclosure under the circumstances of this case. It also said:
“It is no great hardship on the mortgagee to hold that at the suit of an administrator the court must cancel a sale made under a deed of trust after the death of the mortgagor. Where there is a necessity therefor the mortgagee himself can force the opening of an administration or the payment of his claim and thus avoid the expense and trouble of a sale under the deed of trust. Texas Probate Code, §§ 77 and 80. Arts. 3340 and 3357, V.A.T.C.S. If, alternatively, he elects to have the sale made and take a chance on the subsequent opening of an administration and a suit to cancel the sale, he should, abide the consequences. (Emphasis added.)
American argues that it should not be required to pay damages because of its foreclosure of its lien when, under the Pearce case, such foreclosure was not wrongful. To require American to return to the estate of that which it took under the voidable foreclosure — the value of the use of the property — is not an imposition of a penalty upon it. Such is merely a requirement that American return to the estate the value of an asset that has been appropriated —the value of the use of the property. It seems reasonable that if the administratrix could compel the return of one asset, the title to the property, taken by American through its foreclosure, it could also compel the return of another asset so taken — the value of the use of the property. Such return was one of the “consequences” which American should “abide”. The judgment of the trial court awarding the administra-trix recovery of the value of the use of the property during the time it was in possession of American was consistent with the policy expressed in the Pearce case. In such award the trial court’s judgment is affirmed.
The trial court found that the property in question had a rental value of $100 per month during the time American held possession of it. Judgment was rendered for the administratrix for such rental value with interest at the rate of six per cent (6%) per annum, compounded annually. One of appellant’s points of error is directed at such computation of interest. Such point of error is sustained. The prejudgment interest recoverable in this case for loss of rental value fixed upon a monthly basis was simple interest at the rate of six per cent (6%) per annum on each monthly rental from the date it accrued to the date of the judgment. Davidson v. Clearman, 391 S.W.2d 48 (Tex.Sup.1965); Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897). Even though the judgment rendered includes an amount representing prejudgment interest the provision for interest on the judgment so rendered was proper. Lanpar Company v. Stanfield, 451 S.W.2d 254 (Tex.Civ.App.—Dallas 1970, no writ); Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.).
The judgment of the trial court is reformed to the extent that the prejudgment interest is computed on a simple interest basis. As so reformed the trial court’s judgment is affirmed.
Costs of appeal are adjudged against the appellee. |
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Christi Lyn TOTTON et al., Appellants, v. Fred A. MURDOCK et al., Respondents.
No. 57976.
Supreme Court of Missouri, En Banc.
July 12, 1972.
Robert Frager, Kansas City, for appellants.
John C. Thurlo, Vincent E. Baker, Kansas City, for respondents.
MORGAN, Justice.
The trial court refused to issue a peremptory writ of mandamus compelling respondents to allow appellants to register and vote in the primary election to be held on August 8, 1972. On appeal, one question is presented — may a person of the age of seventeen (17) years register and vote in the primary election if such person will be eighteen (18) years of age on or before the general election on November 7, 1972? We have concluded that such person legally can not do so and therefore affirm the judgment of the trial court.
Factually, the parties agree:
(1) That each of the appellants is now and on the date of the primary will be seventeen years of age, but that each will be eighteen years of age on or before the date of the general election.
(2) That each of the appellants, except for the question of age, is otherwise qualified to vote in such elections, and that they bring this action for themselves and on behalf of others similarly qualified.
(3) That respondents are members of and constitute the Board of Election Commissioners for the city of Kansas City, and that they by law are required to follow the dictates of Chapters 117, 120 and 121, RSMo.1969, V.A.M.S., which, among other things, call for the board to “. make all necessary rules and regulations, not inconsistent with this chapter, with reference to the registration of voters and the conduct of elections and shall have charge of and make provisions for all elections, general, special, local, municipal, state, county, all primaries, and of all other of every description, to be held in such city or any part thereof, at any time.” (Para. 6, Section 117.050.)
Initially, it should be noted that appellants have not cited, nor has our own research revealed, any constitutional or statutory provision, either federal or state, specifically granting the right to vote at any election to a person of the age of seventeen years. In fact, the latest constitutional mandate on the subject is found in the Twenty-sixth Amendment to the United States Constitution, effective July 5, 1971, which, in part, provides: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” However, the contention of appellants is not totally unfounded as it is based on an opinion of the Attorney General issued on July 10, 1934, and as yet not withdrawn, which concluded that if a person would be qualified as an elector to vote in the general election he would not be disqualified by non-age from voting in the primary election immediately prior thereto. For apparently the first time, this court is now called on to consider the validity of such a conclusion which purportedly was based on the following reported cases: Dooley v. Jackson, 104 Mo.App. 21, 78 S.W. 330 (1904); State ex rel. Von Stade v. Taylor, 220 Mo. 618, 119 S.W. 373 (1909); and, State ex rel. Feinstein v. Hartmann, Mo., 231 S.W. 982 (1921). In Jackson, the court declared that: “The word ‘election’ frequently occurs in the Constitution of the state. First in section 9, art. 2; and article 8 of that instrument is wholly devoted to the subject of elections. But, wherever used in the Constitution, it is used in the sense of choosing a person or persons for office by vote, and nowhere in the sense of nominating a candidate for an office by a political party.” The same conclusion was reached in Taylor, 119 S.W. l. c. 376, wherein it was said: “. . . the word ‘election’ as used in the Constitution refers entirely to the election of individuals to a public office, and not the mere nomination of candidates for such offices to be subsequently voted for. That the framers of the Constitution referred to the election of individuals to public office, and not to mere nomination to office, when they inserted section 3 of article 8 in the Constitution, we have no doubt whatever.” Again, in Hartmann, 231 S.W. l. c. 985, the court made a similar finding and then resolved that: “As a necessary consequence the provisions of the Constitution which govern elections do not, of their own force, and by virtue of their presence in the Constitution, have any application to primary elections, or any question concerning them.” Also, this court in State ex rel. Dunn v. Coburn, 260 Mo. 177, 168 S.W. 956 (1914), after noting the absence of a constitutional reference to primaries, made the observation, 1. c. 958, that: “No one thought of political primaries regulated by law, when this organic law was framed, for it had its origin many years prior to the present Constitution.” Further, the court discussed the fact primaries were as susceptible to fraudulent conduct as any other election, and that as a part of the elective process they were necessarily subject to regulation under the police power of the state. The court then went on to say, “There being no constitutional inhibition upon the subject, the sovereign state was left with a free rein.” Which was nothing more than a declaration that if primaries are not within the dictates of the constitution, they necessarily are subject to legislative control by statute.
However, after accepting the validity of such holdings at the time they were announced, it must be recognized that subsequent thereto, on February 26, 1924, the constitution of 1875 was amended. Of immediate interest, was the addition to Article 8, Section 3, V.A.M.S., of the words “. . . including nominating elections Such words have been carried forward and are a part of the present 1945 Constitution in Section 3 of Article 8, which is entitled “Suffrage And Elections.” The 1924 Amendment did not go unnoticed by this court for two years later in the case of State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 951 (1926), at 952, it was said: “However, the proviso of section 3 of Constitutional Amendment No. 9, adopted February 26, 1924, specifies when the veil of secrecy can be lifted as to ballots cast at elections, ‘including nominating elections,’ thus clearly indicating that section 3 as amended and adopted extends the constitutional guaranty of a secret ballot, so that the term, ‘all elections by the people,’ used in the first sentence of section 3, now includes nominating elections . . ..” The finding in McElhinney was reaffirmed in State ex rel. Dengel v. Hartmann, 339 Mo. 200, 96 S.W.2d 329 (1936). See also State ex rel. Miller v. O’Malley, 342 Mo. 641, 117 S.W.2d 319 (1938). Recognition, however, must be given to the fact that none of such cases pertained to the question of age qualification, and they were resolved in the context of the specific question at issue and other related constitutional provisions on the subject then at hand.
Research reveals that the matter of voting in a primary, while underage, if such voter will qualify by age on or before the general election, has been the subject of much diversity of opinion. 25 Am.Jur. 2d, Elections, and 29 C.J.S. Elections. Absent a specific right to do so, where approval of the same is given it is generally bottomed on the premise that allowing a person to participate in the process for selecting candidates makes participation in the final election more significant and meaningful. In any event, we can not indulge ourselves in deciding whether or not the rationale of such an approach or the result reached is meritorious for two reasons. First, it seems quite obvious that the people in amending Section 3 of Article 8 to include “nominating elections” appreciated the fact that party primaries are an integral part of the election machinery of the state, and, as such, called for control and regulation by the state instead of considering the nominating process solely a concern of a particular political party. If the state has any concern or duty reference the election of an individual to office in the general election, it has the same or comparable interest in the manner such person was selected at the primary to be a candidate. As said in 25 Am.Jur.2d, Elections, Section 149 at page 842: “. where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, or where the primary is so used in connection with a general election that the latter merely registers and gives effect to the former, it is subject to particular constitutional safeguards and limitations applicable to elections generally.” More specifically, as said in 29 C.J.S. Elections § 115(1) : “In so far as the primary election is made an essential part of the election machinery, general provisions as to qualifications of voters are applicable to voters at party primaries.” Section 2 of Article 8 pertains to the qualifications of voters and, among other requirements, calls for a person to be over the “age of twenty-one” (modified now to be eighteen or over by the 26th Amendment noted), and immediately thereafter in Section 3 designates a primary as a nominating election, which clearly makes the primary an election in the constitutional sense and further makes applicable the constitutional age qualifications. Second, if we assume, for discussion purposes only, that such was not the actual intent of the people, the same result is mandatory otherwise. As said in 25 Am.Jur.2d, Elections, Section 150 at page 843: “It is within the power of a state legislature to regulate .the nomination of candidates for office by adoption of a primary election law, and unless the primary act contravenes constitutional provisions, it is controlling on all political parties and candidates. Statutes regulating primary elections are generally enacted by the legislature in the exercise of the police power of the State.” Each of the decisions of this court previously cited declare the same to be the law of this state. Thus, leaving only one question — has the General Assembly promulgated statutes regulating primaries? The answer is clearly “yes.” Sections 120.300 to 120.650, inclusive, are captioned with the specific title — Nomination By Primary Election. Of those, Section 120.460 provides: “No person shall be entitled to vote at any primary election unless he is a qualified voter of the precinct and duly registered therein, if registration is required by law.” The requirement that a person be a “qualified voter” obviously refers to the primary election as that is not only the subject matter of the specific section but of all other sections under the same sub-title. The section pertains to all areas of the state, and the requirement of registration is relevant only “if registration is required by law.” In Chapter 117 may be found the registration procedure for Kansas City and in Section 117.010(5) may be found the definition of “Election” which includes a “primary election.” Thereafter, Section 117.040, sets out the “Qualifications of voters” which, in part, provides, “Every citizen . . . who is over the age of twenty-one years (now 18 or over) preceding the election at which he offers to vote . . . .” Such statutory regulations for registration were authorized by the people in Section 5 of Article 8 which declares: “Registration of voters may be provided for by law.” See State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 123 S.W.2d 20. It would not be logical to assume that the legislature intended to discriminate as to age between persons voting where registration is required and those where registration is not called for, and we are left with only one conviction, i. e., that under the police power, the legislature has declared a “primary” to be an “election” and that any prospective voter thereat must meet the recognized qualifications. In so far as this case is concerned, such person must be “eighteen years of age or older” on August 8, 1972. This would include those planning to celebrate their eighteenth birthday on August 9, 1972, under the accepted theory that a birthday is, in fact, the first day of another year.
In view of our conclusion that a person seventeen years of age can not vote at a primary election in this state, there can be no denial of equal protection between those required to register and those not so required, and we need not discuss appellants’ second point alleging discrimination against those required to register.
In passing, we mention that the answer reached herein is not in conflict with any federal law pertaining to elections. See Gaunt v. Brown, 341 F.Supp. 1187 (Southern District of Ohio) wherein a three judge panel so found on April 6, 1972.
The judgment is affirmed.
FINCH, C. J., and DONNELLY, SEILER, HOLMAN and HENLEY, JJ., concur.
BARDGETT, J., not participating. |
sw2d_482/html/0068-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Roy C. GRAPHENREED, Employee, Plaintiff-Respondent, v. FORD MOTOR COMPANY, a corporation, Employer, Defendant-Appellant.
No. 34330.
Missouri Court of Appeals, St. Louis District.
May 23, 1972.
Rehearing Denied June 28,1972.
Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, St. Louis, for defendant-appellant.
James F. Koester, Kenneth M. Wein-stock, St. Louis, for plaintiff-respondent.
BRADY, Chief Judge.
This case involves an appeal from judgment of the circuit court affirming an award of the Industrial Commission for the claimant in the amount of $5,740.00. Ford Motor Company, hereafter referred to as employer, appeals. We affirm.
The employer attacks the judgment of the trial court on two grounds: (1) there was not sufficient competent evidence in the record to warrant the making of the award, § 287.490, 1(4), RSMo., V.A.M.S., and (2) the Commission acted without or in excess of its powers, § 287.490, 1(1), RSMo., V.A.M.S. Since the latter allegation concerns matters outside the actual hearing before the Referee, we will consider it first.
After review, the Industrial Commission issued a final award dated September 2, 1969, affirming the award of the Referee. The final award was signed by Commissioners Presley and Brown with Chairman Butler dissenting in a separate opinion. Thereafter, employer filed a motion to vacate the final award alleging in part that after the award it received an undated order signed by Commissioner Presley purporting to set aside the final award. On September 23, 1969 the Commission entered an order denying the motion to vacate. This order was signed by Chairman Butler (the original dissenter) and Commissioner Brown. Commissioner Presley dissented in a separate opinion.
The parties have not cited, nor were we able to find, any law from this or any other jurisdiction dealing with this unique situation. Employer argues the two dissenting opinions demonstrate that in fact the majority opinion was to reverse the Referee’s decision. Thus, employer argues, the final award does not reflect the actual decision and is in excess of the Commission’s powers. We cannot agree.
We decline the invitation to speculate as to who changed whose mind. While employer urges that Commissioner Presley by his dissent to the order indicated his opinion was consistent with Chairman Butler’s dissent, it is equally plausible to assume that Chairman Butler by denying the motion changed his mind to be consistent with the final award. The final award was properly signed by two commissioners thus constituting a quorum or majority as required by § 286.010, RSMo., V.A.M.S. Similarly the order denying the motion to vacate was properly signed by two members thus constituting a majority. The award and order were therefore acts of the Commission and were totally within its powers.
We pass now to the merits of this appeal. The evidence was that while claimant was working for the employer on November 28, 1966, he was pushing a gate on a skid and it hung up. When it did so his feet slipped in some sealer compound on the floor and he felt tremendous pain in his back. The same day he went to the employer’s medical department where he told the nurse about the injury and she gave him heat therapy. He visited the company doctor for heat treatments every day from the accident until hospitalized. Claimant was placed in the hospital by Dr. Holbrook, the company doctor, sometime in December and spent a week in traction. After his release claimant learned he was discharged by employer for falsifying his employment application by denying he had received compensation from previous employers for injuries when claimant had in fact received $88.24 for an injury to his finger which occurred while working for a previous employer and by omitting to mention three other employers for whom he had worked. After his discharge by employer he testified he applied for several jobs, each time acknowledging his back injury and being denied employment. One of these applications was to Fisher Body but the records of that plant show that his application was in fact made before his alleged accident at Ford, not after as he testified.
Subsequently claimant went to work for Emerson where he was still employed at the time of the hearing. Claimant testified that he falsified his employment application at Emerson by omitting any reference to his back injury. He also stated that he was given a pre-employment physical examination which he passed. The medical director at Emerson did not testify. The only evidence as to the pre-employment physical examination conducted by that company was that given by a nurse and the physical examination record. The latter contained claimant’s denial of an existing back injury and the statements he had no physical defects at that time (January 11, 1967) and had suffered no accidents or illnesses in the previous year. The testimony of the nurse was that pre-employment physical examinations conducted at Emerson normally include an examination of the back and any abnormality would be noted on the examination report. She further testified that such examinations normally include back movements, forward, lateral, and knee bends, and that this is done in her opinion on every examination. However, the same witness testified that she could not state whether such an examination was given claimant because she does not remember being present and normally would not be as such examinations are usually conducted by the doctor in a closed room without the nurse’s presence. Her further testimony was that the doctor conducting the examination makes his own notes on the physical examination which he conducts, that back examinations are among those portions of the examination which are left entirely to the doctor, and that the medical records did not show the tests described as to certain back injuries were in fact performed upon claimant. She also testified that the doctor spends four hours a day at the plant and sees fifteen to twenty job applicants each day. The claimant went to work for Emerson on January 11, 1967.
His back continued to give him trouble and in May of 1967 he went to a hospital emergency room where he was seen by Dr. Morgan who testified that claimant gave a history of twisting his back while working at Ford and claimed it had continued to hurt him until that time. Dr. Morgan testified that when he first saw claimant in May of 1967 it was his opinion at that time that claimant suffered an acute soft tissue injury of his lower back, ligamentus or myofascial in origin. He did find splinting of the spine upon bending. He continued to treat him until May 31 when he thought he was improved sufficiently to go back to work. On August 23, 1967 Dr. Morgan stated in his report: “There were no signs of nerve root pressure.” He did not then diagnose a protruding disc. He did not see claimant again until sometime in October. At that time claimant had essentially the same kind of symptoms he was having in May. The neurological examination was again within normal limits. Based upon claimant’s failure to respond to conservative treatment and the presence of bilateral pain in the gluteal regions with some splinting over the lower lumbar segments he recommended claimant have a myelo-gram. In December of 1967 claimant experienced pain in his left leg for the first time. The medical expert’s testimony was that claimant in his opinion had a “midline bulging or protruding disc which slowly and gradually enlarged and most of this enlargement occurred to the left side until eventually it cut the L-5 nerve root.”
The hypothetical question asked of Dr. Morgan by claimant’s attorney in order to establish causal connection between this injury and the accident at Ford asked the doctor to assume claimant gave a history of being injured in an accident while pushing a gate at work at the Ford Motor Company; that as a result of pushing this gate when his foot had slipped his back strained and twisted; that he began to have low back complaints with continuing difficulty; that he was treated at the company dispensary by the nurse and by Dr. Holbrook; that about the middle of December 1966 he was transferred to DePaul Hospital and placed in traction for five days; that he remained off work for four weeks thereafter; that he continued to have trouble with his back which grew progressively worse; and that he first saw Dr. Morgan on the date the doctor indicated, related his difficulties to Dr. Morgan, was examined by the doctor who found the objective signs he testified to. The doctor was then asked whether he could say within a reasonable degree of medical certainty “ * * * whether or not the accident he related to you which occurred in November, 1966, caused the injury you found him to have in May of 1967 and for which you later operated on him”. Dr. Morgan’s testimony was that he could and that, in his opinion, the accident was the cause of the injury.
The employer’s counsel then undertook cross examination of Dr. Morgan. The hypothetical question he asked required Dr. Morgan to assume claimant took a physical examination at Emerson Electric in the early part of January 1967 which he passed; that he went to work for that firm on January 11 of that year and continued working for them until the occasion of his visit to Dr. Morgan in May of 1967; that when claimant filled out his application at Emerson he did not say anything about having back problems at that time; and that he related to Dr. Morgan that his condition became acute when pushing a car at home.about a week before his first visit to the doctor. Dr. Morgan was then asked, in effect, whether or not he could say “with reasonable medical certainty what might have produced the condition for which he was finally operated?” The doctor’s answer was that given these hypotheses, and specifically that he had a back examination “ * * * then I wouldn’t see how you could tell.” The employer’s counsel then asked Dr. Morgan if it was not a fact that his conclusion with respect to causal connection “ * * * is based upon the assumption he did have the pain in the intervening period from May, 1966 to 1967?” The answer was “Yes”. It is obvious that this question was in fact misstated. The whole transcript indicates that the witness understood counsel was actually asking about the period between November 1966, the date of the accident, and May of 1967 when Dr. Morgan first saw claimant. In response to further questioning Dr. Morgan testified his conclusion with respect to causal connection depended entirely upon the veracity of the claimant.
In response to questions by the Referee Dr. Morgan reaffirmed the causal connection he found, stating that the clinical findings were consistent with the history claimant gave him. He was asked if in his experience the time lapse was normal in the development of such injuries. The witness answered that while it was “on the outside of normal range” for the average it was not for this particular claimant. In response to the Referee’s further questioning the doctor testified claimant could have taken and passed the pre-employment physical in January of 1967 even if the injury had occurred in November of 1966 as claimant testified. In support of his answer he noted that even as late as May he could not definitely diagnose the disc and that claimant would have been able to hide it unless the examining physician was alarmed specifically and went through the ordinary tests.
Finally employer called a Dr. Harell, who had seen employee on a consulting basis while hospitalized the first time and again subsequent to the operation. His diagnosis as a consultant was strain or sprain of the back. He found no objective symptoms in December 1966. In answer to a hypothetical question the witness stated that there was no causal connection in his opinion between the accident and the subsequent operation.
The employer contends there is insufficient competent and substantial evidence to sustain the award. It first urges that claimant’s testimony was so contradictory, so filled with falsifications, and in fact so perjured as to be without probative value. The employer relies upon the rule stated in Welborn v. Southern Equipment Co., Mo., 395 S.W.2d 119, that the contradictory testimony of a single witness relied on to prove a fact in a compensation proceeding does not constitute “substantial evidence” in the absence of other circumstances tending to show which of two versions is true. First of all, we note that reliance on the Welborn case is ill-founded. Due to the fact situation in that case, the rule can only be considered dictum of the decision. Wigham v. Ben Franklin Division of City Products Corp., Mo.App., 459 S.W.2d 32. The rule is not so broad as employer would urge. As this court held in Sita v. Falstaff Brewing Corp., Mo.App., 425 S.W.2d 487, l. c. 489: “ ‘ * * * the courts are speaking about self-destructive evidence on a material, essential element of a claimant’s case, not conflicting evidence on a non-essential fact.’ ” (Emphasis supplied.)
The employee admitted that an accident did occur on November 28, 1966, and there is no doubt that employee underwent surgery for a back disability. The only material essential element at issue in this case is the question of causation. The contradictions and falsifications alleged by employer are extremely peripheral to that issue. The only contradiction or falsification touching directly thereon is claimant’s evidence about how the injury occurred and his statements in that regard. At the hearing before the Referee claimant did not deny that he told various people he hurt his back pushing a car. He did deny the injury in fact occurred in that manner. Undoubtedly claimant’s various utterances constitute a matter the Referee could consider when judging credibility but at the hearing claimant did not vary his testimony on this point and did offer some evidence to explain why he told such a story. In effect, his excuse was he had to have a job and having been denied employment when he told the truth about his back he was so desperate for employment he had to lie about it.
In the Referee’s findings of fact the following appears: “ * * * I do not overlook the obvious discrepancies that occurred in claimant’s version of the accident and his statements of claim and other statements made during the course of the year in question. But, having viewed the claimant during his testimony and having considered his attitude and demeanor, as well as his age and education, I find that during the course of his difficulties he was willing to bend the truth to fit the claim form or application but that he felt that this bending of the truth was required by economic necessity. I find that the other accident stories are all explained and that the truth of the matter is as he testified and that any prior inconsistence or misstatements were made .because he needed work and/or income while unable to work and he felt that what he did was the proper way to accomplish his objective.” In essence, as the Referee recognized, the issue is one of credibility. The alleged contradictions and falsifications are not such as to authorize our reversal of the findings of the Referee and the Industrial Commission on that issue. Pate v. St. Louis Independent Packing Co., Division of Swift & Co., Mo.App.1968, 428 S.W.2d 744, l.c. 750.
Employer argues that these same falsifications and inconsistencies constitute perjured testimony so as to allow this court to consider the probative weight of the evidence and enter a decision contrary to that of the Referee and the Industrial Commission. As noted above, the majority of these statements do not relate to the issue of causation, the only material and essential element in the case. There is nothing in the record that compels a conclusion that the testimony touching on that issue was willfully or corruptly given as required by § SS7.010, RSMo., V.A.M.S. We find no merit to this contention.
The employer next contends claimant has failed to bear his burden of proof to establish a causal connection between the accident at Ford and the injury. The attack made by employer is based upon Dr. Morgan’s answer to the hypothetical propounded by employee’s counsel. The argument is that when the doctor was given the hypotheses stated in the hypothetical question, specifically that claimant had undergone a back examination which he was able to pass, the doctor could not “see how you could tell” what caused the injury, the causal connection established by the doctor’s earlier testimony was destroyed. We cannot agree.
Following the employee’s hypothetical, there were other questions asked of Dr. Morgan which, when answered by him, placed the answer upon which employer relies in proper perspective. In response to one such question by employer’s counsel Dr. Morgan stated that all of his conclusions with respect to causal connection were based upon the assumption claimant had pain between the accident and his first visit in May. Claimant had so testified but that fact was not contained in employer’s hypothetical. Further, in response to questions from the Referee Dr. Morgan stated his clinical findings were consistent with claimant’s history and, while on the outside of normal time range for the average time of such injuries, was within that range for this claimant. In addition and of particular significance, Dr. Morgan’s testimony was that unless the examining doctor had been specifically alarmed and went through the ordinary tests to ascertain back injury, claimant could have had his back injury at the time he was examined at Emerson and successfully concealed it even as he testified. The evidence is that the evidence does not establish that such tests were in fact made upon claimant. This is not the case presented in Downs v. A. C. F. Industries, Inc., Mo.App., 460 S.W.2d 293, where proven hypothetical facts caused the witness to change his opinion. Here the elements in the hypothetical causing the contradictory opinion were not uncontested and in fact not in evidence.
In answer to the hypothetical question from claimant Dr. Morgan testified that the injury was caused by the accident. It was also his testimony that the alleged incident with the car was not in his opinion the cause of the injury. These factors, together with those brought out by the questions of the Referee, constitute competent and substantial evidence of causal connection which, since believed by the Referee and the Industrial Commission, require ruling this allegation of error adversely to employer.
Employer’s final assignment of his general allegation of error is that the award is clearly contrary to the overwhelming weight of the evidence. We disagree. The facts set out in this opinion constitute competent and substantial evidence upon which the Referee and the Industrial Commission could base the award.
For the foregoing reasons, we find no error by the circuit court. The decision is affirmed.
DOWD, SMITH, SIMEONE and WEIER, JJ., concur. |
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STATE of Missouri at the relation of PRUITT-IGOE DISTRICT COMMUNITY CORPORATION, a Missouri Corporation, et al., Appellants, v. Vern BURKS et al., Respondents.
No. 34280.
Missouri Court of Appeals, St. Louis District.
June 13, 1972.
Margaret B. Wilson, Wayman F. Smith III, St. Louis, for relators-appellants.
Robert W. Van Dillen, City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for respondents.
DOWD, Judge.
This is an appeal from an order of the Circuit Court sustaining a motion to quash a Writ of Certiorari.
A Petition for a Writ of Certiorari was filed in the Circuit Court of the City of St. Louis by the appellants herein on February 21, 1971. The Writ was ordered to issue on February 24, 1971. The appellants’ petition alleged that the respondents, who constitute the Board of Building Appeals of the City of St. Louis, acted beyond the scope of their authority and in excess of the Board’s jurisdiction in rendering their decision of January 5, 1971.
The facts leading up to this decision are as follows. Appellants are tenants of the Pruitt-Igoe Public Housing Complex in St. Louis and comprise the Pruitt-Igoe District Community Corporation. This corporation exists for the purpose of engaging in lawful activities to improve the quality of life for residents of the complex. The corporation made a complaint to the City Building Commissioner regarding the condition of certain buildings in the complex, and on November 2, 1970, the Commissioner made a finding that the said buildings were in violation of City Ordinance 55681. He ordered the owners of the buildings, the St. Louis Housing Authority, to demolish or repair them as required by this Ordinance. The Housing Authority appealed this ruling to the Board of Building Appeals. On January 5, 1971, the Board rendered its decision sustaining the findings of violations of City Ordinance 55681, but modified the previous order by a further finding that the buildings were within the boundaries of a Federal Urban Renewal project and that the defects could be remedied by securing the buildings with steel-plating and fencing.
The appellants claimed a substantial interest in the proceedings as tenants of the complex, and averred that enforcement of the Board’s decision would result in direct injury to their interests. The appellants alleged as their authority for the Petition for a Writ of Certiorari Section 393.090 of the Revised Code of the City of St. Louis, but did not attach a copy of that section to the petition.
Prior to this Petition for a Writ of Cer-tiorari, and on February 2, 1971, appellants filed in the United States District Court for the Eastern District of Missouri, Eastern Division, a Complaint for Injunction and a motion for temporary restraining order without notice. George Romney, Secretary of the United States Department of Housing and Urban Development, the City of St. Louis and the St. Louis Housing Authority were named as defendants. The complaint alleged the foregoing facts, along with the subsequent steps taken by the defendants to carry out the Board’s decision. Irreparable injury was claimed by virtue of these acts and it was prayed that a temporary restraining order be issued to enjoin the defendants from proceeding further. The Federal Court dismissed for lack of jurisdiction.
Subsequently, on May 28, 1971, the Circuit Court entered its order sustaining respondents’ Motion to Quash Writ of Cer-tiorari. We conclude that the court below was correct in sustaining respondents’ motion for the following reasons.
First, appellants did not follow the proper procedure for judicial review of the decision of an administrative body. The applicable ordinances and statutes are as follows :
“Any person or persons jointly or severally aggrieved by the decision of the Board of Building Appeals * * * shall be entitled to a judicial review of the decision * * * as provided in the Administrative Procedure and Review Act of the State of Missouri, being Section 536.100 to 536.140 RSMo.” Section 394.090 Revised Code of St. Louis (Ordinance 51637, February 7, 1963); Section 2127.7 Revised Code of St. Louis.
“Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case * * * shall be entitled to judicial review thereof, as provided in section 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section.” 536.100 RSMo.
“Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision.” 536.110 RSMo, V.A.M.S.
The scope of judicial review under the Administrative Procedure and Review Act is as follows:
“2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law ;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable ;
(7) Involves an abuse of discretion.” 536.140 RSMo, V.A.M.S.
Appellants claim they had no standing to seek judicial review, since they were not parties to the original proceeding, and therefore, their only remedy is by way of Petition for Writ of Certiorari. We think the words of the statute itself conclusively refute this position. “Any person * * * who is aggrieved by a final decision * * * shall be entitled to judicial review thereof, * * ” 536.100 RSMo V.A.M.S. (Emphasis ours). If the Legislature had intended to limit the right to judicial review only to the parties in a contested case, it would have been a simple matter to insert this word instead of person. By choosing the latter word, the Legislature can only have intended that this right be available to any person, party or not, who can show himself to be aggrieved by the decision.
This brings us to the question of whether appellants have brought themselves within the purview of this “aggrieved” status. We think they have not. Their petition alleges only that they are tenants of the Pruitt-Igoe Complex and that their interests would be injured if certain of the buildings were secured as ordered by the Board. Nowhere is there an allegation that they, or any other tenants whom they purport to represent, actually dwell in the affected buildings, or would actually stand to be evicted from the complex should this decision be carried out. There is, moreover, no allegation of proprietary, pecuniary or economic interests, direct and immediate, or otherwise. Thus, they have not shown themselves to be “aggrieved” within the meaning defined by our courts. “In order for a party to be aggrieved his substantial interest must be directly affected. The judgment must act directly on his rights and they must not merely be collaterally or incidentally involved. ‘The appellant’s interest, to suffice, must be a direct and immediate pecuniary interest in the particular cause, * * American Petroleum Exchange v. Public Service Commission, 238 Mo.App. 92, 176 S.W.2d 533, 534. The court in that case cited with approval 3 C.J. Appeal and Error pp. 632, 633, 651, referring also to 4 C.J.S. Appeal and Error § 177.
The status of an “aggrieved” person must be shown whether a petition is brought under the new Administrative Procedure and Review Act or under the old statute authorizing a petition for Writ of Certiorari. Thus, even if certiorari were the proper remedy herein, we would have to dismiss under the above reasoning. Our courts have consistently held an “aggrieved” status must be established to bring certiorari. Stickelber v. Board of Zoning Adjustment, Mo.App., 442 S.W.2d 134; Lindenwood Improvement Association v. Lawrence, Mo.App., 278 S.W.2d 30.
Recently, the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (decided April 19, 1972) discussed the meaning of an “aggrieved person” in order to qualify for judicial review. The court held that “a mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ * * ” 92 S.Ct. 1. c. 1368 “[T]he fact of economic injury is what gives a person standing to seek judicial review * * 92 S.Ct. 1. c. 1367. There is no allegation in the case before us of any economic injury, or of any “injury in fact,” which interest could be said to be “ ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” 92 S-Ct. 1. c. 1365. Citing Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192.
In the case of State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540, this court treated a petition for a Writ of Certiorari as a petition for administrative review. However, in that case the petition had been filed within 30 days of the filing of the Board’s decision, and all the necessary parties were served. In the case at bar appellants failed to comply with either of these requirements.
Section 536.110(2) RSMo, V.A.M.S., requires copies of the petition to be delivered to the agency and to each party of record in the proceedings before the agency. Here the St. Louis Housing Authority was a party of record in the proceedings. However, the St. Louis Housing Authority was apparently not served, as required, for no proof of service appears on the record. The only proof of service shown in the record on appeal is that for each member of the Board of Building Appeals.
Appellants allege that the 30-day restriction cannot apply to them, since there is no obligation on the part of the Board to provide them or any non-party with a copy of its decision. Presumably, they cannot, therefore, be expected to know when the decision is final.
In this instance, however, the appellants had actual knowledge of the Board’s decision, as evidenced by their Complaint and Motion filed in Federal Court within the 30-day limitation. Moreover, we think that appellants can be charged with constructive knowledge of the decision by reason of Section 394.070 Revised Code of St. Louis:
“ * * * The action of the Board shall not become effective until after the resolution of the Board setting forth the full reason for its decision and the vote of each member participating herein has been spread upon the minutes. Such resolutions, immediately following the Board’s final decision, shall be filed in the office of the Board and shall be open to public inspection.” (Ordinance 51637, February 7, 1963).
The decision of the Board was therefore immediately available to the public. The members of the public, especially those as interested in the outcome as the appellants, may reasonably be charged with constructive knowledge of that which is freely available to them. Cohen v. Ennis, Mo., 318 S.W.2d 310.
Appellants attack the Board’s decision on the grounds that it is void, and may therefore be attacked at any time. They assert that a Writ of Certiorari is the proper procedure for attacking this defect. This argument is erroneous for two reasons: (1) The decision was not void, and (2) the procedure for review provided by the Administrative Procedure Act replaces the former remedy relied on by appellants.
Section 2126.1 of the Building Code of the City of St. Louis, as enacted by Ordinance 52506, reads in part as follows:
“If, upon making his examination and inspection, the Building Commissioner finds that the building or structure has any one or more of the defects described above in Paragraphs A-S inclusive, he shall at once notify in writing the owner or owners of said building or structure, as provided by Section 2126.2 of this Code, of the defects found in said building or structure and shall order him or them to demolish or repair said building or structure within 7 days unless said building or structure is located within an area in which either a Federal urban renewal program or a Federal concentrated code enforcement program is then being conducted or for which an application by the City of St. Louis for such a program is pending, in which case the Building Commissioner shall order the owner or owners to demolish, repair or secure said building or structure within seven days: * * (Emphasis ours).
Section 394.060, Revised Code of St. Louis, enumerates the powers of the appeal board. “In exercising its powers the Board of Building Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made.” (Ordinance 51637, February 7, 1963).
Thus, the Building Commissioner had the authority to make the decision he did, and the Board had the authority to modify it. The Board may have made an erroneous ruling, but mere error does not render a judgment void. In view of the fact that the Pruitt-Igoe Public Housing Complex is federally funded, as evidenced by the appellants’ Complaint in the Federal Court, we cannot conclude that the Board’s finding that the buildings in question fell within the boundaries of a Federal Urban Renewal project was arbitrary and capricious and without substantial evidence.
However, even if it were true that the Board’s decision was void, this would not help appellants’ position, .since they have not followed proper procedure for attacking it. A Petition for Writ of Cer-tiorari to review the actions of an inferior tribunal, authorized by Section 393.090, Revised Code of the City of St. Louis, is no longer valid for review of the decisions of administrative agencies. Section 393.-090, which was relied on by appellants in its Petition for Writ of Certiorari, was replaced in February of 1963 by Ordinance 51637. This Ordinance, in Section 394.090, cited earlier in this opinion, contains the procedure to be used for judicial review of a decision of an administrative agency, that is, Sections 536.100-536.140 of the Administrative Procedure and Review Act, also cited, supra. The scope of inquiry is contained in Section 536.140, cited in full, supra, which scope is the same as that given a reviewing court under the doctrine of Writ of Certiorari. It is, therefore, obvious that the remedy provided by the cited ordinances and statutes completely replaces the Writ of Certiorari formerly used.
The appellants’ contentions and allegations could not be entertained even if their original petition had not been fatally defective, for the reasons given above. We must therefore affirm the lower court’s ruling sustaining respondent’s motion. It is so ordered.
BRADY, C. J., and SMITH and WEIER, JJ., concur.
. AH statutory references are to RSMo 1969, V.A.M.S.
|
sw2d_482/html/0080-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Patricia Sherron BOLHOFNER and John Bolhofner, Plaintiffs-Respondents, v. Edward E. JONES, Defendant-Appellant.
No. 34288.
Missouri Court of Appeals, St. Louis District, Division No. 1.
May 23, 1972.
Rehearing Denied June 28, 1972.
Armstrong, Teasdale, Kramer & Vaughan, by John P. Emde, Thomas E. Wack and Larry Luber, St. Louis, for plaintiffs-respondents.
Carter, Bull, Baer, Presberg & Lee, by Richard O. Funsch, St. Louis, for defendant-appellant.
CLEMENS, Judge.
Intersectional collision case in which plaintiff Patricia Bolhofner and her father sued Patricia’s host-driver David McMahon and Edward E. Jones, driver of the other car. Before trial plaintiffs settled with McMahon for $14,123 and dismissed as to him. Upon trial against Jones plaintiffs had verdicts and judgments for $12,500 and $1,065. Defendant appeals, contending plaintiffs did not make a sub-missible case.
The collision occurred at the intersection of east-west Lindbergh Boulevard and north-south Ringer Road. Lindbergh is a two-lane through highway; Ringer Road is a two-lane road with stop signs for cars entering Lindbergh. David McMahon, Patricia’s host-driver, was headed south preparing to cross Lindbergh, upon which Jones was driving eastward. McMahon stopped at the stop sign. From this position he had an unobstructed view for 400 feet westward on Lindbergh and Jones could see the McMahon car from wherever he was within that zone of intervisibility when McMahon stopped at Lindbergh. McMahon then moved forward into Lindbergh across the path of Jones’ eastbound car. When McMahon was midway across Lindbergh’s center line his right front quarter was struck by the left front quarter of Jones’ car, which was then in the proper eastbound lane of Lindbergh. After impact Jones’ car moved on east, leaving 97 feet of skid marks and McMahon’s car “did a loop” and stopped on Lindbergh just east of the intersection. Patricia was thrown onto the highway, receiving substantial injuries and at trial could not remember the collision.
In determining whether plaintiffs made a submissible case we confine ourselves to the two issues submitted by plaintiffs’ verdict directors. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91 [4, 5]; Begley v. Connor, Mo., 361 S.W.2d 836 [4, 5], Those two negligence issues were Jones’ failure to keep a careful lookout (MAI 17.05) and failure to swerve or slacken his speed after danger of collision became apparent (MAI 17.04).
As said, Patricia recalled nothing of the collision. Her host-driver David McMahon was not called as a witness nor was defendant Jones. The only evidence on liability came from an investigating police officer and two eye-witness motorists. Officer William Graham said that after the collision, “I believe his [Jones’] statement was to the effect that he was driving along and didn’t know where the [McMahon] car came from — didn’t know what happened.”
Witness Joe Olderworth saw the collision from the south side of the intersection where he had stopped, headed north on Ringer Road preparatory to making a left turn into Lindbergh. When he first noticed the McMahon car it was stopped on Ringer Road headed south. Mr. Older-worth watched the McMahon car as it made a “normal start” across Lindbergh, but could not estimate its speed; he did not see the Jones car until the moment of impact with the McMahon car.
The other eye witness was Darvin Wagner. Driving west on Lindbergh, approaching the Ringer Road intersection, he was approximately an eighth of a mile short of the intersection when he first saw the McMahon car. The car was stopped but then made a “normal start” and was halfway across Lindbergh’s center line when the collision occurred. Mr. Wagner did not see the Jones car until “a very short time” before the collision, gave no testimony about Jones’ speed, position, nor where he was when he first saw the Jones car.
We look to this evidence for support of plaintiffs’ lookout submissions. Failure to keep a careful lookout may be proven circumstantially, Welch v. Sheley, Mo., 443 S.W.2d 110 [6-8]. Jones could see the McMahon car from the moment it started out from the stop sign. It moved halfway across the center line of Lindbergh before the collision, and the jury could reasonably infer this would take at least two or three seconds, yet Jones told the police officer that “he didn’t know where the [McMahon] car came from.” That warrants an inference that Jones never saw the McMahon car before impact. To be totally unobservant for two or three seconds while approaching an intersection would justify a jury in finding that Jones failed to exercise the highest degree of care by failing to keep a careful lookout. This leads us to the necessary element of causation.
As said in Shelton v. Bruner, Mo.App., 449 S.W.2d 673 [3]: “To be actionable, negligence must be a proximate cause of injury. Hence, failure to keep a careful lookout, negligent though it is, does not become actionable and submissible in the absence of substantial evidence from which the triers of the facts reasonably may find that, in the exercise of the highest degree of care, defendant could and should have seen plaintiff in time thereafter to have taken effective precautionary action. And, ‘[h]aving the means and ability to avoid a collision means not only the mechanical appliances, . . . but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged to take effective action in avoidance.’ ” (Citing Zalle v. Underwood, Mo., 372 S.W.2d 98 [2]).
In Zalle the court held a lookout case was not made when “there was no evidence as to the relative speeds of and distances between the two vehicles at any given time. There is nothing in the evidence from which the jury could find where the two vehicles were located in relation to each other at any particular point in time before the impact occurred.” That is what we have here. There was no evidence of Jones’ distance from Ringer Road when McMahon entered the intersection, of his speed at any time, nor of Jones’ ability to take effective evasive action. We know only that when the McMahon car entered the intersection Jones was at some uncertain distance to the west driving at some unspecified speed. Whether Jones could in the exercise of the highest degree of care have taken effective action to avoid the collision “left the element of causal connection in the nebulous twilight of speculation, conjecture and surmise.” Shelton v. Bruner, supra [4-6]. We hold that by plaintiffs’ failure to show causation they did not make a submissible case on the issue of defendant’s failure to keep a careful lookout.
Plaintiffs’ alternate submission was that Jones “knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have swerved, or slackened his speed, but defendant Jones failed to do so.” (MAI 17.04). As said, plaintiffs’ evidence did show McMahon had moved into the intersection and was halfway across the center line of Lindbergh when the collision occurred. From this the jury could infer that at some point on his approach to the intersection Jones “could have known that there was a reasonable likelihood of collision.” But by plaintiffs’ submission that knowledge must have come to , Jones “in time thereafter to have swerved or slackened his speed.”
This submission has elements akin to a humanitarian negligence case in that a defendant’s duty arises at the moment he has actual or constructive notice of the likelihood of a collision, and his negligence is measured by his ability thereafter to avoid the collision. Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111 [4-7]. As to evidentiary support see Branscum v. Glaser, Mo., 234 S.W.2d 626 [4-6], quoting this court’s opinion in Miller v. Wilson, Mo.App., 288 S.W. 997 [1]: “When, as is the case here, the record is utterly devoid of evidence as to defendant’s speed, the distance within which he could have stopped his automobile, or the relative positions of the two machines at the moment-when defendant could first be charged with actual or constructive notice of plaintiff’s perilous position and of the danger of a collision, no case is made for the application of the humanitarian rule.”
In the obvious absence of evidence of where the Jones car was when McMahon entered the intersection, or what his speed was at that time, or within what distance the car could have stopped or swerved, the jury had no basis for determining whether Jones’ failure to take effective evasive action was negligent. We are back in the “nebulous twilight of speculation, conjecture and surmise.” We hold that plaintiffs failed to present evidence to support their alternate submission of negligent failure to act after danger became constructively apparent. Compare Cook v. Cox, Mo., 478 S.W.2d 678, 1972.
Plaintiffs rely principally upon the in-tersectional collision case of Jefferies v. Saalberg, Mo.App., 448 S.W.2d 288, submitted on the same verdict director as in our case. There, the parties’ positions were the reverse of ours. Plaintiff Jeffer-ies was a passenger in a car racing toward an intersection to beat a stop light. Defendant Saalberg was stopped at the intersection waiting for the light to change and started up when it turned green. There was evidence plaintiff was 90 feet away from the intersection, going over 45 miles an hour, when defendant without looking either way “darted out” into the intersection. At best, Jefferies held that a plaintiff may recover upon a showing of the approximate relative locations of the vehicles, their speeds and stopping distances. In our case those elements do not even reach an approximation.
Plaintiffs also cite Herr v. Ruprecht, Mo., 331 S.W.2d 642, concerning an in-tersectional collision case submitted on defendant’s failure to yield the right-of-way. The critical issue was whether plaintiff was close enough to the intersection to constitute an “immediate hazard.” This was determined favorably to plaintiff upon evidence that when defendant entered the intersection driving “very slowly” plaintiff was 50 feet short of the intersection driving at 40 miles an hour. Obviously this conclusion was based on specific facts about relative positions, speeds and distance- — facts notably missing in our case.
Plaintiffs also rely on Commerford v. Kreitler, Mo., 462 S.W.2d 726 and Cox v. Moore, Mo.App., 394 S.W.2d 65, for the proposition that “the direct testimony of the party charged is not necessary to support a lookout submission.” We have already noted that plaintiffs’ evidence did show defendant’s failure to keep a careful lookout but did not show that neglect was the proximate cause of the collision.
We have read the other cases cited by plaintiffs and find none out of harmony with the theory on which we have ruled this case.
To summarize: The jury could have found that when the McMahon car entered the intersection Jones negligently failed to see it and that the danger of a collision was then constructively apparent. But Jones’ negligence, vel non, .in thereafter failing to swerve, slacken speed or take other effective action depends on the answers to three questions: One, how far back from the intersection was Jones at that critical moment?; two, what was his speed? and three, within what distance could he have slackened his speed or taken any other effective evasive action ? The testimony does not answer any one of these questions, either directly or inferentially. The jury could not have found Jones’ failure to act proximately caused the collision without resorting to conjecture. Hence, there was no substantial evidence to support either of plaintiffs’ submissions.
Plaintiffs contend the trial court erroneously excluded evidence that would have tended to supply the deficiencies in their case. Plaintiffs’ expert witness Bil-horn was qualified to give an opinion of defendant’s speed based on 97 feet of skid marks. The trial court called upon the witness to specify how much of the skid marks were on the paved surface of Lindbergh and how much were on the shoulder. To meet this requirement plaintiff sought to show the witness two photographs depicting the skid marks. These two photographs, Exhibits 1 and 5, had been used by defense counsel in cross examining one of plaintiffs’ witnesses. Defense counsel objected to plaintiffs showing the photographs to witness Bilhorn on the ground the photographs, although previously marked and used by defense counsel, had not been offered in evidence. The court sustained the objection on a different ground of its own making, that the exhibits were privileged as defendant’s work product. Neither ground was valid. Once an exhibit has been marked and used it is in evidence just as if it had been formally introduced. State v. Taylor, Mo., 433 S.W.2d 273. And, once an exhibit is in evidence it may be used by all parties. Merz v. Tower Grove Bank & Trust Co., 344 Mo., 1150, 130 S.W.2d 611 [9]; Atterbury v. Temple Stephens Co., 353 Mo. 5, 181 S.W.2d 659 [8].
Thus, plaintiffs were erroneously barred from showing defendant’s speed. That speed would tend to show defendant’s position when plaintiffs’ car entered the intersection, and also whether defendant could have taken effective preventative action.
Even though a plaintiff does not make a submissible case, where all pertinent factual information was not presented on trial an appellate court may remand the case for a new trial. Hood v. M. F. A. Mut. Ins. Co, Mo.App., 379 S.W.2d 806 [12]; Rule 84.14, V.A.M.R. Where the failure to make a case results from the erroneous exclusion of essential evidence substantial justice requires a new trial.
Since there was no error affecting damages the judgment is reversed and the cause is remanded for a new trial limited to the issue of defendant’s liability.
PER CURIAM:
The foregoing opinion by CLEMENS, J, is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause remanded for a new trial limited to the issues of defendant’s liability.
BRADY, C. J, and DOWD, SIMEONE, SMITH, and WEIER, JJ., concur. |
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James W. HAYNES, Plaintiff-Appellant, v. Hollis N. ALLEN et al., d/b/a Allen Medical Laboratories, Defendants-Respondents.
No. 34239.
Missouri Court of Appeals, St. Louis District.
May 23, 1972.
Rehearing Denied June 28, 1972.
William A. Richter, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for plaintiff-appellant.
Vatterott, Shaffar & Dolan, St. Ann, for defendants-respondents.
WEIER, Judge.
Dissolution of a partnership and its consequences is the area of concern in this case. From a judgment limiting plaintiff’s recovery to $7,484.83, plaintiff has appealed, contending generally that the trial court misinterpreted the partnership agreement with regard to liquidation and distribution of assets. If plaintiff prevails with his interpretation of the contract, then, by stipulation of the parties made at trial, plaintiff would be entitled to a total of $27,100.43. In addition, plaintiff contends that he is entitled to pre-judgment interest on the full amount commencing January 1, 1967, the date of dissolution.
Dr. James W. Haynes, the plaintiff, is a medical doctor whose specialty has been pathology. In 1955, he was employed by Allen Medical Laboratories, a partnership composed of physicians who engaged in the practice of medicine and, particularly, in the operation of clinical pathological laboratories. Within six months after initial employment he became a partner. Upon admission as a partner, he paid nothing for his interest in the existing laboratory equipment, the accounts receivable, supplies and the established practice, except the sum of $2,500.00, which was stated in the partnership agreement to be his contribution as partnership capital. Under the terms of the agreement, all medical and surgical instruments, laboratory equipment, stock, medicines and medical books which the parties had previously accumulated while associated together, were delivered over to the partnership and thereupon became partnership property. Additional supplies and equipment were subsequently purchased over the years out of partnership funds and they also became partnership property.
In June of 1966, at a partnership meeting, Dr. Haynes became involved in an animated conversation with one of the partners over the productivity of one of the laboratories as it affected partnership income. He left the meeting abruptly and failed to return to any further meetings. Three were held thereafter. According to Dr. Haynes, he was never notified in advance as to their time or place. The last meeting was on December 14, 1966. A notice was sent to Dr. Haynes at his home, by mail. A cryptic message of one line, it read: “There will be a meeting of the Partnership at my home Wednesday December 14, 1966, at 7:30 P.M. Hollis N. Allen, M.D.” This letter was dated December 12, 1966 — two days before the meeting. At this meeting all of the partners except Dr. Haynes attended. All those present agreed to dissolve the partnership and expel Dr. Haynes. One of the partners, Dr. William L. Drake, Jr., was delegated the task of notifying Dr. Haynes that he was to be “separated” from the partnership. This notice, signed December 31, 1966, was served on January 2, 1967.
The partnership agreement contained a clause, Article VII, which spelled out in detail the methods to be used to ascertain the value of a partner’s interest upon retirement or death. Upon payment of the amount therein determined, the partnership business could be perpetuated in the remaining partners, or in those who desired to continue with its operation. The article that followed, Article VIII, because of its importance in the determination of this lawsuit, is set out verbatim:
“ARTICLE VIII
Dissolution
1. Unless dissolved by the retirement or death of a partner, the partnership shall continue until dissolved by agreement of the partners. Upon any such voluntary dissolution by agreement, the affiars (sic) of the partnership shall be liquidated (except that the accounts receivable and laboratory equipment belonging to the partnership shall vest free and clear of any and all claims or charges in the majority group of full partners who are interested in maintaining the laboratory, but in case of a tie, then to the group having the greatest total number of years of seniority in the partnership). Any partner whose last name is “Allen” shall have the right to the continued use of the name of this partnership. The assets of the partnership (excluding the accounts receivable and laboratory equipment) shall first be used to pay or provide for all debts of the partnership, taking into consideration any sums remaining due the estate of any partner who may have died. The remaining assets (excluding the accounts receivable and laboratory equipment) shall be divided according to the proportionate interests of the partners on the basis of their respective pro rata proportion of the income as existed immediately prior to dissolution.”
On appeal, Dr. Haynes contends the unambiguous meaning of this clause of the partnership agreement is that all partners must agree to dissolve the partnership before its terms are applicable. Further, that where, as here, the agreement is silent in regard to the consequences of dissolution by less than all the partners, the Uniform Partnership Law (Chapter 358, RSMo 1969, V.A.M.S.) applies and determines the rights of the parties. The other partners likewise maintain the partnership agreement is clear and unambiguous, but their interpretation differs from that of plaintiff. And so, on the one hand, plaintiff asserts that the word “agreement” means unanimous agreement, or agreement of all the partners. But, on the other hand, defendants declare the word means consent of a majority of the partners.
To invoke the formula for distribution set forth in Article VIII, the key words are “upon voluntary dissolution by agreement.” “Agreement” is defined: “A coming or knitting together of minds; a coming together in opinion or determination; the coming together in accord of two minds on a given proposition; in law a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances; the consent of two or more persons concurring respecting the transmission of some property, right, or benefits, with the view of contracting an obligation, a mutual obligation.” Black’s Law Dictionary, 4th Ed., page 89. It is clear that “agreement” in the above phrase or in the phrase “Agreement of the partners”, found in the first line of Article VIII, implies mutuality of consent and forecloses the interpretation of defendants that it means consent or agreement by a number less than all of the partners. Fish v. Fish, Mo.App., 307 S.W.2d 46, 50[4],
The court below, in its memorandum opinion, gave as its reason for interpreting the phrases to call for something less than total accord and thus require distribution under its provisions, the failure of the article to require dissolution by “unanimous” agreement. By the same token, however, we note that the clause did not in plain terms provide for dissolution by “a majority” of the partners. Further, the trial court, to support its interpretation, cited the provisions in Article VIII vesting accounts receivable and laboratory equipment in the majority group of partners, and even in the group having the greatest number of years of seniority in the event of a tie, as being incongruous with an interpretation that “agreement” called for the consent of all. But if one is able to go beyond the plain meaning of “agreement” and add “by majority” to it, the result could be just as unreasonable or absurd, since a majority of four of the seven partners could, under that interpretation, then agree to dissolution and proceed to appropriate for themselves the greater share of the assets of the partnership. The minority of three would then have to be content with being cast out without their fair share, even though disagreeing with the dissolution.
In speaking of the characteristics of a partnership, we have said that the power to expel a partner from a firm does not ordinarily exist. F. M. Strickland Printing & Stationery Co. v. Chenot, Mo.App., 45 S.W.2d 937, 939[6]. Defendants’ interpretation of the contract would be contrary to this general principle as well as the meaning of the unmodified word “agreement”. Such power in partners must be clearly set forth in the partnership agreement.
The partnership was for an indefinite term. It was dissolved by act of the defendants and notice of dissolution served on plaintiff January 2, 1967. Section 358.310(1) (b), RSMo 1969, V.A.M.S.; Schneider v. Newmark, 359 Mo. 955, 224 S.W.2d 968, 970[1]. In the absence of an agreement to the contrary, Section 358.180, RSMo 1969, V.A.M.S., governs the rights and duties of the partners upon dissolution. Meredith Development Company v. Bennett, Mo.App., 444 S.W.2d 519, 523[5]; Allison v. Dilsaver, Mo.App., 387 S.W.2d 206, 211[4, 5], But the parties here agreed by stipulation filed in the court below, that, if the plaintiff prevailed, he was to receive judgment for stipulated amounts representing plaintiff’s share of his initial capital contribution, the expendable supplies, the accounts receivable and the laboratory equipment, in a total sum of $27,100.43. Based upon this agreed computation and our interpretation of Article VIII of the partnership contract, plaintiff is entitled to this amount. There still remains, however, another issue to be decided before we conclude.
Plaintiff also contends he is entitled to pre-judgment interest commencing January 1, 1967, the effective date of dissolution, on the total amount due him from that time, even though his petition did not specifically pray for such interest. Plaintiff did not seek a dissolution of the partnership. No charge of wrongdoing was brought against him or proven. The other partners decided to dissolve and continue with the business of the partnership. They then offered plaintiff only that sum which would be due him under a clause of the partnership agreement which was not applicable to the facts surrounding the dissolution. This tender did not have to be accepted by him. To stop the running of interest, the tender must be made in full payment of the amount owing. Rules 77.22, 77.23, V.A.M.R.; Wheeler v. Cantwell, Mo.App., 140 S.W.2d 744, 747[4]. The defendants have continued to retain the money due plaintiff commencing January 1, 1967, up to this time. The total amount due was ascertainable and had been fully acknowledged as to amount, as shown by the stipulation of the parties filed in the case. During this period the defendants had the use of the money and plaintiff is entitled to interest for the loss of its use. Clasen v. Moore Brothers Realty Company, Mo.App., 413 S.W.2d 592, 599[8]; Prudential Ins. Co. of America v. Goldsmith, 239 Mo.App. 188, 192 S.W.2d 1, 3 [2-4]. Cf. § 358.180(4), RSMo 1969, V.A.M.S., which recognizes that a claim for interest may be made by a partner, on capital contributed by him, from the date when repayment should be made. So also, in speaking of situations in which interest is allowable in a suit for accounting between partners, the court quoted with approval as one of the grounds, “damages for the detention of a sum of money after it has become due.” Scott v. Thompson, Mo., 222 S.W. 115, 131 (quoting Rowley on Partnership, Vol. 1, § 362). The allowance of interest to plaintiff in the case at bar is supported both by the facts and the law.
But does plaintiff have to specifically ask for interest in the prayer of his petition to be entitled to it in the judgment granted him by the court? We think not. The suit was in equity for an accounting. In addition to seeking an accounting and a judgment for the amount found to be due plaintiff, the petition prayed the court “to grant such other and further relief as the court may deem meet and proper in the premises.” Such a prayer has been held to authorize a court of equity to allow interest as being within the general purview and scope of the pleadings. Cannon v. Bingman, Mo.App., 383 S.W.2d 169, 173 [1-3].
The judgment below is reversed and the case remanded, with instructions to enter judgment for plaintiff and against defendants in the sum of $27,100.43, together with interest thereon at the rate of six per centum per annum, commencing January 1, 1967, down to the date the judgment is entered in compliance with our mandate.
BRADY C. J., and DOWD, SMITH and SIMEONE, JJ., concur. |
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CITY OF ST. JOSEPH, Plaintiff-Appellant, v. William D. MACKLEY, Defendant-Respondent.
No. 25739.
Missouri Court of Appeals, Kansas City District.
June 5, 1972.
Ronald E. Taylor, William E. Alberty, St. Joseph, for plaintiff-appellant.
Earl F. Steeb, Agency, for defendant-respondent.
DIXON, Judge.
The Municipal Court of the City of St. Joseph found defendant Mackley guilty of driving while under the influence of intoxicating liquor on April 28, 1967. The defendant appealed to the Circuit Court of Buchanan County. No activity of any kind occurred until January, 1971, when the defendant filed a motion to dismiss claiming that more than four terms of court had passed and that he was entitled to discharge. The ruling on that motion is not before us.
The plaintiff City then filed a motion asking that the defendant’s appeal to the Circuit Court be dismissed because the defendant had failed to prosecute the appeal with due diligence. The court overruled that motion, and the City filed notice of appeal to this court.
The transcript as filed here contains only the motions, colloquy of counsel and the court, the judgment entry, and the notice of appeal. We have stated the facts from the appellant’s brief since respondent adopted that statement of facts, and a statement based on the partial transcript would be meaningless.
The “final judgment” from the court’s minutes reflects that defendant was “discharged of the information herein.” At another point the entry recites that the cause “is dismissed” because the defendant announced ready, and the plaintiff City was unable to be ready. The same court minutes show that the court overruled both motions and the colloquy of court and counsel indicate that the plaintiff City intended to stand on its motion.
The plaintiff City, appellant here, has briefed and argued only the question of the propriety of the court’s ruling on its motion to dismiss. Only that question will be considered since it will be dispositive of the appeal.
The written motion of the City denominates the defendant as the “moving party,” and the thrust of the argument on this appeal is that when the appeal to the Circuit Court was filed, the defendant became the “moving party.” Plaintiff City in its brief asserts that the defendant “actually becomes plaintiff.”
The notion that the duty to proceed with the trial of a case in the Circuit Court devolves on the defendant by virtue of the fact that he is the appealing or “moving party” is inconsistent with the procedure of providing a trial de novo in the Circuit Court. Every appeal from the Municipal Court is to be tried in the Circuit Court as though the prosecution had originated in that court. V.A.M.R. 37.84. While the Circuit Court may retain discretionary authority to dismiss the appeal in some instances, that authority may not be invoked to reallocate the responsibilities for proceeding with the trial. The City was the plaintiff in the police court, and it remains the plaintiff in the Circuit Court. The City’s position in their brief is that V.A.M.R. 67.02, which provides in part:
“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him . . . ” (Emphasis added.)
authorized dismissal of the appeal by defendant. The position maintained by the City — that the defendant was, in fact, the plaintiff on appeal — is clearly untenable; and the Circuit Court correctly refused to sustain the City’s motion.
The case of Hoelzel v. Kelly, 222 Mo.App. 566, 291 S.W. 1081, was an early decision dealing with a similar problem. There, the defendant appealed from an adverse judgment in the justice court, and the plaintiff moved to dismiss the cause in the Circuit Court charging that the defendant had failed to list the cause for trial and, therefore, had not prosecuted his appeal. In construing a statute which required the applicant for appeal to enter into a recognizance conditioned that the applicant will prosecute his appeal with due diligence to a decision, the court held that those provisions simply required that the appellant shall perfect his appeal as required by law and not be in default of any duty imposed on him by law. Id. at 1082.
The court further stated that:
“(I)t does not mean that where an appeal has been fully perfected, plaintiff, who as an original proposition is always the actor both in the justice and circuit courts, has not the duty to bring the case on for trial, but that that duty devolves upon the defendant although he is the appealing party.” Id. at 1082.
Furthermore, the City does not contend in its brief, nor does the record reveal that the delay was in any way caused by the actions of the defendant. While there is little doubt that an appeal to the circuit court may be dismissed when the appellant fails to perfect his appeal (Feldman v. Levinson, Mo.App., 93 S.W.2d 31, where the defendant failed to pay the filing fee), or fails to comply with a duty imposed by law (City of St. Louis v. Fitch, 238 Mo.App. 725, 187 S.W.2d 63, and Buchholz v. Manzella, Mo.App., 158 S.W.2d 200, where the defendant failed to appear for trial upon proper notice), the party seeking dismissal has the burden of demonstrating such a failure; and in lieu of such a showing the refusal to dismiss was proper. In the absence of any showing that the defendant was in default of any substantive duty imposed on him by law, the decision of the circuit court must be affirmed.
As noted above, the plaintiff City’s appeal has been considered as if it had “stood on its motion” and normally, our ruling would require a remand for trial. The City indicated it had no evidence, and the court “discharged the defendant from the information.” The City had the burden of proof and could not meet it. The judgment below dismissing the cause is correct and is affirmed.
SHANGLER, C. J., and CROSS, J., concur.
PRITCHARD, SWOFFORD and WAS-SERSTROM, JJ., not participating because not members of court at the time the case was submitted.
. See. 2891, R.S.1919, which is now applicable to appeals from a police court by virtue of V.A.M.S. § 98.020 and V.A.M.S. § 512.190.
|
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Robert Matthew JAMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
June 23, 1972.
John Tim McCall, Louisville, for appellant.
John B. Breckinridge, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for appellee.
GARDNER, Commissioner.
Appellant was adjudged guilty on two counts of illegal sale of narcotics (cocaine) and sentenced to 20 years in the penitentiary and a fine of $20,000 on each count. It was ordered that the sentences run consecutively. We reverse the judgment.
Appellant contends that the court erred in failing to require the Commonwealth to submit a bill of particulars as to what time of day the sales took place, where they took place, who was present, and factual statements of the essential elements of the transactions.
Appellant was arraigned May 3, 1971, made the motion for a bill of particulars May 21, 1971, and was tried June 7, 1971. On the day of trial he moved for a continuance because his counsel had not had time to prepare the case and because his counsel could not adequately represent him until the information asked for in the motion for a bill of particulars was received. The motion for continuance was overruled. There was no explanation as to why a bill of particulars was not filed other than that the attorney for the Commonwealth, at a hearing immediately before the trial, reminded the court there had been no order requiring it.
It is provided by RCr 6.22:
“The court for cause shall direct the filing of a bill of particulars. A motion for such bill may be made at any time prior to arraignment, or thereafter in the discretion of the court. A bill of particulars may be amended at any time subject to such conditions as justice requires.”
Upon cause shown it is mandatory that the court direct the filing of a bill of particulars unless the motion is made after arraignment, in which event it becomes discretionary with the court as to whether the motion be sustained. It is stated in State v. Dugan, 229 La. 668, 86 So.2d 528, 529 (1956):
“It is well settled that the granting of a bill of particulars is within the sound discretion of the trial judge but the trial judge cannot arbitrarily refuse to order the state to furnish essential particulars necessary for the preparation of a defense.”
In Finch v. Commonwealth, Ky., 419 S.W.2d 146 (1967), it was pointed out that with the innovation of the abbreviated indictment the defendant should be supplied freely with details of the charge against him to enable him to prepare his defense. In the present instance each count in the indictment merely stated appellant sold cocaine to Charles Baker, Sr. “on or about” a stated date. On or about the date could have covered a period of several days. Appellant should not have been required to have available alibi witnesses for all those days. Nor should he have had to guess whom the Commonwealth might use as corroborating witnesses, if any, nor where the alleged transactions took place. In Brown v. Commonwealth, Ky., 378 S.W.2d 608 (1964), we said:
“The function of the bill of particulars in a criminal case is to provide information fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise upon trial. It is complementary to the shorter form of indictment.”
Of like import are Commonwealth v. Chesapeake & O. Ry. Co., 128 Ky. 749, 110 S.W. 253 (1908); Pipkin v. United States (C.A. 5th Cir.), 243 F.2d 491 (1957); United States v. Haskins (C.A. 6th Cir.), 345 F.2d 111 (1965). See also Wright, Federal Practice and Procedure: Criminal, section 129, page 283.
In its brief the Commonwealth counters by saying appellant made no attempt to present an alibi defense. It is true that appellant’s entire defense could be accurately summed up by his own statement, “I never sold Mr. Baker nothing.” But the argument begs the point. Appellant was entitled to the information. What he would have done with the information was a matter for him and his attorney to have decided. This is not an instance where the Commonwealth did not possess the information since Detective Baker testified as to the exact time, place, and who was present when the sales were made.
Appellant assigns as another error the failure of the court to provide him with the opportunity to inspect the reports of the chemist who analyzed the narcotic and the opportunity to have a sample for inspection by his own chemist. RCr 7.24 provides in part:
“On motion of a defendant the court may order the attorney for the Commonwealth to permit the defendant to inspect and copy or photograph any relevant * * * (b) results or reports * * * scientific tests or experiments made in connection with the particular case, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody or control of the Commonwealth.”
Again, the Commonwealth cannot say that the chemist’s reports or the drug was not available. The chemist testified he had submitted his reports to the Louisville Police Department and he had copies at the trial. Also the drug itself was introduced into evidence at the trial. A cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused cannot be countenanced. In the case of Jackson v. State, Miss., 243 So.2d 396 (1971), it was held error to refuse to furnish the accused with a sample of the marijuana for the purpose of enabling a chemist employed by defendant to determine whether the substance was in fact marijuana. It was held in People v. Perrell, 47 Misc.2d 1024, 263 N.Y.S.2d 640 (1965), that the accused had a right to have the narcotic analyzed under the supervision and on the premises of the police laboratory. It is said in Wright, Federal Practice and Procedure: Criminal, section 253, page 506, “The second category of materials obtainable virtually as of right under Rule 16(a) is results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, or control of the government, the substance of which is known, or by the exercise of due diligence may become known, to the attorney for the government.”
The final error advanced by appellant relates to prejudicial statements made by the attorney for the Commonwealth. We are not convinced the statements resulted in prejudicial error. Since the judgment is being reversed for reasons given above and since the argument is of doubtful merit, we do not believe a discussion of the assigned error will serve any useful purpose.
Judgment reversed.
All concur.
. Federal Rule 16 (a) is almost identical with RCr 7.24 (1).
|
sw2d_482/html/0129-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Dr. Glenn ABERNATHY et al., Appellants, v. George P. CHAMBERS, Jr., et al., Appellees.
Supreme Court of Tennessee.
May 15, 1972.
Rehearing Denied July 17, 1972.
James A. Hopper, Savannah, for appellants.
John R. Moss, Jackson, Lloyd Tatum, Henderson, for appellees.
OPINION
CRESON, Justice.
The record in the instant case is a suit instituted by appellants in the Chancery Court of McNairy County to remove a cloud on title to certain realty in Hardin and McNairy Counties. From a final decree of the court below dismissing appellant’s suit, an appeal has seasonably been perfected to this Court since the Chancellor heard the suit on the pleadings and stipulations of the parties.
In this opinion the parties will be referred to as they appeared in the trial court; that is, Dr. Glenn Abernathy, E. L. Hagy, Mayme Chambers Dillard, R. C. Chambers, Nannie V. Chambers Scott, Frank M. Hagy, Ernest E. Hagy, Everett E. Hagy, Sam Chambers Hagy, James Elmo Gowdy, Dr. William M. Chambers, Jr., and Harry K. Chambers, as complainants; and George P. Chambers, Jr., Virginia Chambers, Inez Chambers, Ora Cantrell Maxedon, Beatrice Cantrell Owen, Annie Mae Chambers Caldwell, Mayme Chambers Harrell, Sam Chambers, Murry Chambers, and Virgil Hampton, as defendants.
The record reflects that G. L. Chambers and his wife, Mai Cantrell Chambers, were residents of Alcorn County, Mississippi. On April 28, 1930, G. L. and Mai Chambers executed a joint will. After providing for a bequest of $1,000.00 to defendant Virgil Hampton, the will provided that “all the rest, residue and remainder of our, or each of our property, real, personal, or mixed, and wheresoever situated, is hereby devised and bequeathed to the survivor of us, for the term of the natural life of such survivor of us.” Upon the death of the survivor the joint will provides that the estate of the survivor shall be divided in half with one-half passing to the three sisters of Mai Chambers and the other half to certain named relatives of G. L. Chambers.
On April 14, 1936, G. L. Chambers died. Mai Chambers, as Executrix of the Estate of G. L. Chambers, offered the will executed on April 28, 1930, for probate. It was admitted to probate in common form on April 18, 1936, by the Chancery Court of Alcorn County, Mississippi. A certified copy of the joint will was registered in Hardin and McNairy Counties.
On August 11, 1936 Mai Chambers executed a warranty deed purporting to convey to H. S. Fisher the fee simple title to a certain parcel of land in McNairy County, Tennessee. In 1940 Fisher learned for the first time that Mai Chambers could not convey a fee simple interest in the property-
After being informed of the deficiency of title, Mrs. Chambers discovered another will of G. L. Chambers. This second will, which was executed on August 30, 1930, and which shall be designated as the poem will, provides as follows:
“All my earthly goods I have in store I leave to my dear wife forevermore. I freely give, no limit do I fix, this is my will, she is the Executrix.
This August 30, 1930.
/s/ G. L. Chambers
Witness:
/s/ Virgil Hampton
/s/ Mrs. Inez Chambers”
On April 14, 1941, Mai Chambers filed a petition in the Chancery Court of Alcorn County, Mississippi, to set aside the probate of the first will and have the poem will probated in solemn form as the last will and testament of G. L. Chambers. All of the beneficiaries under the first will or their heirs at law were notified of the pen-dency of this petition and were made defendants to this proceeding. On May 31, 1941, a decree was entered vacating the probate of the original will and admitting the poem will to probate. A certified copy of the poem will was registered in Mc-Nairy and Hardin Counties.
On July 24, 1967, Mai Chambers conveyed the fee to certain tracts of land in McNairy and Hardin Counties to defendant George P. Chambers, Jr., reserving a life estate for herself. This conveyance was properly recorded. On June 12, 1968 Mai Chambers died.
On August 14, 1969, this suit was instituted by complainants in the Chancery Court of McNairy County to remove a cloud on title. Complainants are beneficiaries or heirs at law of the beneficiaries of the remainder interest under the original will. In their original bill complainants allege that they were given a remainder interest in certain lands in McNairy and Hardin Counties by the will of G. L. Chambers which was executed on April 28, 1930; that on April 18, 1936, this will was admitted to probate by the Chancery Court of Alcorn County, Mississippi; that on May 31, 1941, the Chancery Court of Al-corn County vacated the probate of the original will of G. L. Chambers and admitted to probate a second will; that the Chancery Court of Alcorn County, Mississippi, was “without authority to set aside the first and joint will, because of the Statute of Limitations as set out within Section 1609, Mississippi Code, 1930, and is carried forward in Section 505 of the Mississippi Code of 1942”; that on July 24, 1967, Mai Chambers conveyed to George P. Chambers, Jr. certain lands in McNairy and Hardin Counties, reserving a life estate to herself; and that the deed “from the said Mai Chambers to the said George P. Chambers, Jr. is a cloud on the title to the land that was devised to them by said . . . will of the said G. L. Chambers.”
Defendants George P. Chambers, Jr. and Virginia Chambers filed an answer to the original bill. Virginia Chambers is the wife of defendant George P. Chambers, Jr. In their answer they deny that the Chancery Court of Alcorn County, Mississippi, was without authority to set aside the probate of the original will and admit the poem will to probate. Defendants George P. Chambers, Jr. and Virginia Chambers aver that in this proceeding complainants seek to contest the validity of the Last Will and Testament of G. L. Chambers, probated by decree on May 31, 1941, and that this cause of action is barred by the Tennessee and Mississippi statutes of limitation. These defendants further state that complainants “are guilty of laches and are es-topped ... to assert their claim.”
Defendants Inez Chambers, Ora Cantrell Maxedon, and Beatrice Cantrell Owen filed an answer in which they admitted the truth of the averments in the original bill and joined in the prayer for relief.
The remaining defendants failed to file an answer. An order pro confesso was entered against them.
The instant suit was heard on August 23, 1971. The Chancellor was of the opinion that “the issues presented to the Court have heretofore been presented to the Chancery Court of Alcorn County, Mississippi” ; that complainants were parties to that litigation; and that the Mississippi decree of May 31, 1941, “sustaining the probate of the second will of testator, G. L. Chambers, was fully decided and constituted res adjudicata.” The Chancellor further found (1) that the statute of limitations of both Mississippi and Tennessee bar complainants’ suit and (2) that complainants are guilty of laches and are es-topped to assert their claim. Complainants’ bill was dismissed.
From the adverse ruling complainants have seasonably perfected an appeal to this Court. Complainants have filed numerous assignments of error assailing the findings of the Chancellor.
Under the first assignment of error complainants assert the Chancellor erred in determining that the 1941 Mississippi decree admitting the poem will to probate was res judicata between the parties as to the issues presented in the instant suit. Complainants contend that the decree of the Mississippi Probate Court is void for the reason that the Chancery Court of Alcorn County, Mississippi lacked jurisdiction over the subject matter. This assertion by complainants is premised on Section 505 of the Mississippi Code of 1942 which provides, in part, as follows:
“Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not; hut if some person do not appear within two years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities . . .
It is apparent that complainants’ assertion that they are the owners of the property is based on the remainder interest devised to them under the first will of G. L. Chambers. During oral argument before this Court counsel for complainants conceded that Mai Chambers could convey a fee simple interest to the lands in question under the poem will if it had properly been admitted to probate. Complainants assert that the judgment of the Mississippi Court admitting the poem will to probate is void and that only the original will of G. L. Chambers can be given effect.
The record in the instant case clearly reflects that complainants or their ancestors with whom complainants are in privity were parties to the 1941 proceeding admitting the poem will to probate. Furthermore, complainants do not raise any question of notice of the solemn form probate proceedings. Complainants only attack the validity of the 1941 judgment on the ground that the Chancery Court of Alcorn County, Mississippi lacked jurisdiction over the subject matter of the proceeding.
We have carefully examined complainants’ contention and have found it to be without merit. It is fundamental that Article IV, Section 1 of the Federal Constitution requires us to give full faith and credit to the 1941 Mississippi decree admitting the poem will to probate. Jacobs v. Willis’ Heirs (1922) 147 Tenn. 539, 249 S.W. 815. As was pointed out in the more recent case of Durfee v. Duke (1963) 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186, full faith and credit requires us to give res ju-dicata effect to a decree which it is accorded by the State that renders it. It is not disputed that the solemn form probate decree would bar a subsequent action by complainants in the Mississippi courts attacking the propriety of admitting the poem to probate. Full faith and credit prohibits any relitigation of that question in Tennessee.
In determining whether or not a judgment of a sister state is entitled to full faith and credit we are at liberty to inquire into the jurisdiction of the court rendering the judgment. Brown v. Fletcher’s Estate (1908) 210 U.S. 82, 28 S.Ct. 702, 52 L.Ed. 966. However, the rule is established “that a judgment is entitled to full faith and credit — even as to questions of jurisdiction —when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” Durfee v. Duke, supra.
The record in the instant case convinces us that the Mississippi probate court considered and determined that it had jurisdiction to vacate the probate of the original will and admit the poem will to probate in solemn form. This determination, having been made by the Mississippi Court, must be given effect under Article IV, Section 1 of the Federal Constitution.
It results that all assignments of error are overruled and the decree of the Chancellor is affirmed. Costs of this appeal are taxed to complainants.
DYER, C. J., CHATTIN and Mc-CANLESS, JJ., and JENKINS, Special Justice, concur.
OPINION ON PETITION TO REHEAR
CRESON, Justice.
Complainants have filed a petition to rehear. It is fundamental that the “purpose of a petition to rehear is not to re-argue the case on points already considered by the Court; but rather, to call to the Court’s attention some new and decisive authority which it overlooked.” Knox County v. Moncier (1970) 224 Tenn. 361, 455 S.W.2d 153. Complainants have advanced no new authority, nor have they pointed to any material matters overlooked by this Court in its original opinion. Accordingly, the petition to rehear is denied.
DYER, C. J., CHATTIN and Mc-CANLESS, JJ., and JENKINS, Special Justice, concur. |
sw2d_482/html/0133-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Don Quincy GAREY, Appellant, v. Nadine Dobson GAREY, Appellee.
Supreme Court of Tennessee.
May 15, 1972.
Rehearing Denied July 17, 1972.
Richard T. Ely, Memphis, for appellant.
Albert C. Harvey, Memphis, for appel-lee.
OPINION
CRESON, Justice.
The controversy in the instant case concerns the extent of appellant’s obligation for child support payments under a final decree of divorce entered on January 7, 1971, in the Circuit Court of Shelby County, Division II.
In the course of this opinion the parties will be referred to as they appeared in the trial court; that is, Nadine Dobson Garey, as complainant, and Don Quincy Garey, as defendant.
On January 7, 1971, complainant was granted an absolute divorce from defendant. The parties had previously entered into a property settlement, child support and alimony agreement. The provisions of the agreement were incorporated into the final decree. In reference to child support the final decree provides as follows :
“and that the defendant shall pay to the complainant the sum of TWO HUNDRED ($200) DOLLARS per month child support for the parties’ two minor children, and that as each child reaches twenty-one (21) years of age or is otherwise emancipated, then the amount of the child support shall be reduced by one-half and the amount of the alimony for complainant shall be increased by TWENTY-FIVE ($25) DOLLARS, all of which is in accordance with the terms and conditions of said property settlement agreement and that said property settlement agreement be and the same is hereby confirmed, ratified and approved by the Court and incorporated in and made a part of this decree to the same extent as if set out herein verbatim.”
On October 26, 1971, complainant filed a petition for scire facias wherein it is charged that in June, 1971, defendant “arbitrarily reduced his child support obligation by the sum of One Hundred ($100) Dollars per month and increased his alimony payments by the sum of Twenty-Five ($25) Dollars per month.” Complainant avers that the two children of the parties are under the age of 21; that neither child has been emancipated; that defendant is in arrears in his child support payments in the amount of $75.00 per month, since June, 1971; that defendant is “an able bodied person” capable of meeting his support obligation and his failure to do so is wilful.
In his answer to the petition defendant admits that the two children of the parties are under the age of 21, but defendant alleges that the daughter born of this union, Carol Ann Garey, “has become emancipated by law by the passage” of Chapter 162 of the Public Acts of 1971 which became effective on May 11, 1971. Defendant denies that he is in arrears in making the child support payments.
The parties stipulated that the allegations set forth in the petition and answer be accepted as true; that Carol Ann Garey was 18 years of age when the final decree of divorce was entered; and that the only controversy between the parties is the extent of defendant’s child support obligation under the decree in view of the passage by the Legislature of Chapter 162 of the Public Acts of 1971.
The particular provision of Chapter 162 relied on by defendant is Section 3. It provides:
“Notwithstanding any laws to the contrary, any person who is eighteen (18) years of age or older shall have the same rights, duties and responsibilities as a person who is twenty-one (21) years of age or older.”
The trial court entered an order wherein it is stated that defendant is not entitled to a reduction in his child support payments by virtue of the passage of Chapter 162 of the Public Acts of 1971. The trial judge was of the opinion that defendant agreed to support his children until they attained the age of 21 years; that “he did not contemplate ... a change in the law”; and that defendant is not entitled to rely on such a change to reduce his child support obligation.
From this adverse order defendant seasonably perfected an appeal to this Court. The only issue presented in the instant case is whether or not defendant was relieved of the obligation of making child support payments for his 18 year old daughter by virtue of the enactment by the Legislature of Chapter 162 of the Public Acts of 1971.
We have thoroughly reviewed the record in the instant case and are of the opinion that the court below was in error in determining that defendant was not entitled to a reduction in his support payments by the passage of Chapter 162 of the Public Acts of 1971.
The final decree is explicit. It provides that defendant has the duty to pay $200.00 per month as child support “until each child reaches twenty-one (21) years or is otherwise emancipated". (Emphasis supplied).
It is fundamental that once a child reaches the age of majority there is a complete emancipation of the minor from the protective bonds of parental control. Memphis Steel Const. Co. v. Lister (1917) 138 Tenn. 307, 197 S.W. 902. At the time of complete emancipation the parents’ legal duty to support the child is terminated. Wallace v. Cox (1916) 136 Tenn. 69, 188 S.W. 611.
In Section 3 of Chapter 162 of the Public Acts of 1971 the General Assembly has conferred the status of adulthood on persons 18 years of age or older. By lowering the age of majority from 21 to 18 years of age the Legislature has completely emancipated the minor from the control of the parents and relieved the parents of their attendant legal duty to support the child.
We hold that defendant was relieved of his obligation to make child support payments by the passage of Chapter 162 of the Public Acts of 1971.
It results that the order of the trial court is reversed and the case remanded to the Circuit Court of Shelby County for further proceedings not inconsistent with this opinion. Costs of this appeal are taxed to complainant.
DYER, C. J., CHATTIN and Mc-CANLESS, JJ., and JENKINS, Special Justice, concur.
OPINION ON PETITION TO REHEAR
CRESON, Justice.
Complainant has filed a petition to rehear. The petition fails to raise any issue which was not fully considered by this Court in arriving at our original decision. The petition to rehear is denied.
DYER, C. J., CHATTIN and Mc-CANLESS, JJ., and JENKINS, Special Justice, concur. |
sw2d_482/html/0135-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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James Vernon POTTS, Appellant, v. HEIL-QUAKER CORPORATION and Aetna Life and Casualty Insurance Company, Appellees.
Supreme Court of Tennessee.
July 3, 1972.
Shelby L. Haywood, Haywood & Whitaker, Lewisburg, for appellant.
George B. McGugin, Watkins, McGugin, Finch & McNeilly, Nashville, for appellees.
OPINION
DYER, Chief Justice.
This is an appeal in a workmen’s compensation case by James Vernon Potts (employee) from the holding of the chancellor that the injury received by the employee did not arise out of or in the course of his employment. The issue here is whether the injury was “in the course of employment” or more specifically, whether the “place” of the injury was “in the course of employment.”
The facts on the determinative issue are as follows: Employee, male, age 47, had been employed by Heil-Quaker Corporation (employer), for a number of years as a welder. The premises of the employer are enclosed by a wire fence with one gate designated as the guard gate, which all employees are required to use in going to and from work. Employee in going to work would come through the guard gate and then walk through an open space for a distance of about one hundred fifty feet to enter the welding • building where he worked. Upon entering the welding building employee would check in and start his shift. Upon completion of his shift employee would check out and leave the premises of the employer by the same route.
On the day of the injury (May 2, 1970), employee used his normal procedure in going to and from his work. On this day upon leaving work when he had reached a point within the open space area about ten feet from the welding building, he slipped and fell on a concrete surface injuring himself for which injuries he claims compensation. A film of oil had accumulated on this concrete surface where employee fell and was at the time wet from rain.
The chancellor made no finding of fact, but we presume from the argument made to the chancellor and the briefs filed here the chancellor found employee had left his place of employment when he checked out in the welding building and was on his way over a route of his own choice from work when the fall, resulting in the injuries, occurred.
The facts, in addition to the previous facts shown in this opinion, upon which this holding is based are as follows: This open space between the wire mesh fence where the guard gate is located and the welding building, as shown by the photographs, is approximately one hundred to one hundred fifty feet in both width and depth. Although employee was required to enter and leave through this guard gate he was not required to take any particular route through this open space in either going to or from the welding building. Also, there were four doors giving access to the welding building and employee was free to use any of these doors.
The general rule is that an injury received by an employee on his way to and from his work, away from his employer’s premises, does not arise out of his employment and is, therefore, not compensable. Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690 (1928). There is an exception to this rule and in McKinney v. Hardwick Clothes, 217 Tenn. 457, 398 S.W.2d 265 (1966), we approved the following statement as a workable rule in determining if an employee is within the course of his employment when going to and from his actual place of employment, which in the case at bar would be employee’s work station in the welding building. The rule is:
“ . . . that if a process of going to and from is furnished by the employer or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable; otherwise not, as the employee is not to be considered in the course of his employment until he has actually arrived at his place of employment, ready to begin his activities in the employer’s work. * * * ” 217 Tenn. at 465, 398 S.W.2d at 268.
In Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955), we noted under our workmen’s compensation statutes there was a distinction between the “property” and the “premises” of the employer. “Premises” of the employer means the part which employee is required to use for ingress and egress. The question for decision in the case at bar is; first, was the route employee used to go from his work station in the welding building to the guard gate “employer’s property line”, a route required by the employer as to make it a part of the “premises” of the employer as this word “premises” is used in our workmen’s compensation statutes. Secondly, if so, did the required route submit the employee to a definite special hazard.
In Mallette v. Mercury Outboard Supply Company, Inc., 204 Tenn. 438, 321 S.W.2d 816 (1959), we held concrete steps on a steep bank leading to a marina located on a barge in a lake, where the employee was employed, was a part of the premises of the employer. This holding is based on a finding that (1) these steps were built as an incident to the operation of the marina, and (2) employees had no other reasonable means of getting to and from the marina, (3) the employer necessarily expected the employees to use the steps for that purpose, and (4) the use of the steps was limited to the patrons and employees of the marina.
The employee was required by the employer to use the guard gate in going to or leaving his place of employment in the welding building. The employer admits such was required but argues the fact employee either in going to his place of employment from the guard gate or going from his place of employment to the guard gate was not required by the employer to take any particular route through this open space (previously described in this opinion), nor was he required to enter the welding building by any of the four doors available gave the employee a choice of what route he would take; that this being true the case is controlled by the rule set out in Bennett v. Vanderbilt University, supra, and the injury received while traveling the route selected by the employee through this “open space” would not be in the course of his employment.
Bennett v. Vanderbilt University, supra, involved an employee of a hospital whose place of employment was inside the hospital building. The employer owned a parking lot adjacent to the hospital allowing, but not requiring, its use by employees. Employee upon leaving her place of employment went to the parking lot to get her automobile to return home and there suffered an injury for which she claimed compensation. The Court denied compensation on the ground there were several routes the employee could use in going from her place of employment to the parking lot, none of which were required by the employer. The Court also noted the employer had no interest in whether the employee came to work in her automobile and, therefore, had no interest in whether the employee used the parking lot.
We think the case at bar is distinguishable from Bennett v. Vanderbilt University, supra. In the instant case the employer had a continuing interest in the employee’s route to and from his place of employment in the welding building. The employer required the employee to extricate the “premises” through a specific guard gate. To achieve this requirement, the employee had a choice of four exits leading from the welding building to the “open space” upon which he necessarily had to traverse in order to reach the designated guard gate. The “required route” rule is not so inflexible as to allow an employer to designate exact geographic limitations to a particular route in order to escape liability for hazards existing a few feet on either side of the given route. Nor is it intended to allow an employer to avoid liability by granting an employee discretion of movement through an area restricted by boundaries. The mere fact the employee had a choice of path within a reasonable defined area, a variance of which may or may not subject him to “special hazards” is insufficient to take him out of the “required route” rule.
There is one other element necessary to consider; that is, whether this required route submitted the employee to a definite special hazard. The evidence reflects a film of oil had accumulated over parts of this “open space” area and other employees had previously fallen in the area. This route did present a definite special hazard.
Employer in its brief raises the issue of the material evidence rule in workmen’s compensation cases. We find no conflicts in the evidence and it is for this Court to construe and give legal effect to the undisputed facts and in doing so may properly reach a different conclusion from that of the trial court. Moore v. Cincinnati, N. O. & T. P. Ry., 148 Tenn. 561, 256 S.W. 876 (1923).
The judgment of the trial court is reversed and the cause remanded for a determination of benefits due.
CRESON, HUMPHREYS and Mc-CANLESS, JJ., concur.
MILES, Special Justice, dissents.
MILES, Special Justice
(dissenting).
It is with some misgivings that I venture to disagree with the majority opinion in the above case; yet, I have been unable to reconcile my conclusions with those expressed by the author of the majority opinion.
Generally, an employee is not in a com-pensable status until he has reached his station or place of employment, ready to begin his employer’s activities. Similarly, an employee who is injured after completing his employer’s activities is not entitled to such compensation, although still on the employer’s premises, unless his case comes within the exception contemplated by the cases cited in the majority opinion.
The case of Travelers Indemnity Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, takes a more strict approach to the question before us and in that case the circumstances appear to be more favorable to a recovery than those of the case at bar. Also see James v. Sanders Manufacturing Co., 203 Tenn. 274, 310 S.W.2d 466. In McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265, this court held that the icy conditions there involved were not a special hazard. In James v. Sanders Manufacturing Company, supra, this court held that metal covers on sidewalks were not special hazards as contemplated by the exception to the rule in McKinney v. Hardwick Clothes, Inc., supra. In Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386, recovery was denied because the injured employee was not using a course of travel required by the employer for egress and ingress. On the contrary, the record in the case at bar reveals that the employee, by his own admission, was taking a short cut to the exit gate; thus, he was apparently not using the conventional route. It is established by the record that this gate was accessible to the employee from three other exits from the plant and there is no indication that the course of travel from these three exits to the gate were inherently dangerous.
Moreover, the Chancellor concluded, apparently, that the course of travel voluntarily chosen by the employee was not inherently dangerous. This would appear to be a conclusion of fact by which this court is bound.
The circumstances of the case at bar are clearly distinguishable from those on which the case of Mallette v. Mercury, 204 Tenn. 438, 321 S.W.2d 816, wherein the employee had no other course of travel (or “escape route”) available to him. |
sw2d_482/html/0139-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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John I. FOSTER et al. v. Daniel B. HON et ux., et al. Intervening Petition of Charles O. HON, Jr., et al., Appellants, v. Raymond PRATER, Administrator Ad Litem, Appellee.
Court of Appeals of Tennessee, Western Section at Knoxville.
Dec. 1, 1970.
Certiorari Denied by Supreme Court April 5, 1971.
Harris, Moon, Meacham & Franks, Chattanooga, for appellants.
Raymond A. Prater, Chattanooga, for ap-pellee.
CARNEY, Judge.
The petitioners, Charles O. Hon, Jr., Margaret Hon Snodgrass, Elizabeth Hon Poynton, as the surviving adult descendants of Mary B. Hon along with Hamilton National Bank of Chattanooga and Charles O. Hon, Jr., as co-executors under the will of Mary B. Hon, deceased, have filed a petition for writ of error to review the action of the Chancellor in denying their intervening petition and rendering a judgment in favor of the respondent, Raymond Prater, administrator ad litem of the estate of Daniel B. Hon, deceased. More specifically, this case involves the construction of a clause in a deed reserving to the adult descendants of Mary B. Hon the right to purchase a lot in Chattanooga, Tennessee, at $1.00 more than any bonafide offer which the grantee or his successor might receive for said property. The petitioners exercised their right of purchase and agreed to pay $25,001 for the lot. They then filed an intervening petition in court insisting that since the $25,000 purchase price included a $2,500 real estate sales commission, they should be allowed to purchase the property for $22,501.
The original grantee, Daniel B. Hon, and his wife, Barbara S. Hon, were owners as tenants by the entirety of the lot described as located on River Vista Drive in Chattanooga. They were divorced and became owners as tenants in common. They also owned another parcel of property known as 1514 Riverview Road, Chattanooga, which was not subject to the restrictive agreement referred to above.
The estate of Daniel B. Hon was being administered as an insolvent estate in Chancery Court. Mrs. Barbara Hon claimed $25,000 back alimony. Other creditors’ claims and costs approximated $25,000.
The administrator ad litem, Raymond Prater, made an agreement with Barbara S. Hon, former wife of Daniel B. Hon subject to court approval to divide the property so as to give Barbara Hon title to the 1514 Riverview Road property and the administrator ad litem full title to the lot on River Vista Drive with the agreement that the River Vista Drive lot would be sold and proceeds used to pay creditors. The balance, if any, was to be paid to Mrs. Barbara Hon on the back alimony claim.
The administrator ad litem employed the services of Ferger Bros. Realty Company to advertise and find a purchaser for the lot at a price of not less than $25,000. The real estate broker was to receive a ten percent commission. The property was advertised for a period of twelve months during which time the intervening petitioners who owned property adjacent to the lot in question were consulted as potential purchasers. The intervening petitioners, Charles O. Hon, Jr., et al, mentioned their option to purchase under the restrictive clause and refused to make an offer saying that they preferred to wait and probably exercise their option to purchase the lot for $1.00 more than the bonafide price being offered.
The real estate agent then obtained a bonafide offer in writing to purchase the property from Harry Berke at a total price of $25,000 accompanied by a tender of the purchase price. This contract was dated June 20, 1969. Thereupon on July 1, 1969, the intervening petitioners made the following offer in writing to purchase the property:
“To Raymond Prater, Administrator Ad Litem of the Estate of Daniel B. Hon
We, the undersigned, being the surviving adult descendants of Mary B. Hon, and The Hamilton National Bank of Chattanooga and Charles O. Hon, Jr., Co-executors under the will of Mary B. Hon, will pay One Dollar ($1.00) more than the offer of Harry Berke dated June 20, 1969, made known to us June 23, 1969. The deed is to be made in the name of said Coexecutors and is to describe the same lands as in Book 1160, page 220 in the Register’s Office of Hamilton County, Tennessee.
This 1st day of July, 1969. 0
THE HAMILTON NATIONAL BANK OF CHATTANOOGA,
Coexecutor under the will of Mary B. Hon
By /s/ T. Hooke McCallie_
T. Hooke McCallie, Trust Officer /s/ Charles O. Hon, Jr._
Charles O. Hon, Jr., Individually, and as Coexecutor under the will of Mary B. Hon /s/ Elizabeth Hon Poynton_
Elizabeth Plon Poynton
/s/ Margaret Hon Snodgrass_
Margaret Hon Snodgrass
By E. K. Meacham_
HARRIS, MOON, MEACHAM & FRANKS”
The real estate agent agreed to reduce his commission from $2,500 to $2,000 in order that the creditors of Daniel B. Hon exclusive of Mrs. Barbara Hon might be paid the full amount of their claims without interest. On August 29, 1969, the administrator ad litem filed his petition in the Chancery Court to confirm the sale of the real estate to intervening petitioners; to pay the creditors; and to close the estate.
On September 29, 1969, the intervening petitioners, Charles O. Hon, Jr., et al, tendered into court $22,501 as the full purchase price of the lot in question averring that the real estate agent was not entitled to a commission of $2,500 or to any other amount and that they were entitled to purchase the property for $1.00 more than the net amount to be received by the administrator ad litem after payment of the ten percent real estate commission.
The Chancellor denied the petition and confirmed the sale of the lot to the intervening petitioners-appellants herein at a total price of $25,001. He ordered the petitioners to pay the additional $2,500 into court as the balance of the purchase price. This order the petitioners-appellants alleged to be error.
A copy of the restrictive clause in the deed is as follows:
“4. In the event that the grantees herein desire to sell a part or the whole of this property to anyone other than the descendants of grantor herein, said part or whole of said property must be first offered to the grantor herein and her adult descendants and then to all the owners of the said twenty-two and fifty-nine hundredths (22.59) acre, more or less, tract, exclusive of owners of lots in the subdivision in the northwest corner of said tract, at One Dollar ($1.00) above the bona fide price offered, and said offerees shall have ten (10) days to accept or reject said offer of sale, but this restriction will not apply to a conveyance to a trustee or mortgagee to secure an indebtedness or any subsequent purchaser from said trustee or mortgagee.”
The petitioners-appellants, Charles O. Hon, Jr., et al, insist that the case is controlled by the ruling of this court, eastern section, in the case of Joe V. Williams, Jr., complainant-appellee v. Mrs. Gertrude Williams Gaston, et al, defendants-appellants, from the Chancery Court of Hamilton County announced September 10, 1958, unpublished. In the Williams case the appel-lee, Joe V. Williams, Jr., had an option to purchase a tract of land owned by his sister, Mrs. Gertrude Williams Gáston, in Chattanooga, Tennessee, under a deed from his mother which contained the following restrictive clause:
“If after the death of Grantor the Grantee shall at any time desire to sell the property herein conveyed. the said Gertrude Williams Gaston shall notify the other three children of Grant- or Mrs. Annie Sholze Williams, to-wit, Robert S. Williams, Joe V. Williams, Jr., and Mrs. Margaret Williams Robbins, that said Gertrude Williams Gas-ton desires to sell, and she shall give them the name and address of the proposed purchaser, the price that has been offered, and shall accompany said notice by an affidavit of said Gertrude Williams Gaston that such prospective sale is bona fide, and that she intends to sell and convey said property at said price, unless said three named persons, or any one or more of them, desire to purchase the property at said price, and upon the terms offered by the prospective purchaser.”
Mrs. Gertrude Williams Gaston, sister of Joe V. Williams, Jr., contracted through a real estate agent to sell her lot for $25,000 out of which she was to pay a real estate commission of $2,500. Joe V. Williams, Jr. filed suit in Chancery Court enjoining the sister, Gertrude Williams Gaston from selling the property and insisting upon his right to purchase the property at the net amount of $22,500. The real estate agent was made a party defendant along with Mrs. Gaston. The sister, Mrs. Gaston, was willing to pay the commission of $2,500 if the court sustained a purchase price of $25,000 but was. unwilling to pay a commission if the complainant was entitled to buy the property for only $22,500.
The complainant Williams paid into court the full $25,000 and the lawsuit continued between Williams and the real estate agent. The Chancery Court held that complainant Williams was entitled to buy the property for $22,500 and that the real estate agent was not entitled to collect his fee because he was never able to complete the sale for Mrs. Gaston. This court affirmed the action of the lower court on the authority of Bewley & Rader Land Co. v. Whitaker, 29 Tenn.App. 106, 194 S.W.2d 244.
The facts in the case of Bewley & Rader Land Co. v. Whitaker are not similar to the facts in the case at bar. In the Bewley case there was a suit for real estate commission against a husband whose wife refused to join in the sale of property. The Court of Appeals held that since the real estate agent knew that the wife had not agreed to sell the property and he had not insisted on her joining in the contract of sale the agent could not recover under the brokerage contract after the wife refused to sign the deed. However, the court did allow the real estate broker compensation on a quantum meruit basis.
In the case at bar we see no substantial difference between the restrictive clause contained in the deed in the Williams case and that contained in the case at bar quoted above. In principle the holding of the Chancellor below in the case at bar is contrary to the rationale and holding of the Court of Appeals in the case of Joe V. Williams v. Gertrude Williams Gaston.
In our opinion the ruling of the Chancellor below is more consistent with the equities of the case at bar and Williams v. Gaston should be limited to the facts of that case. We reach this'conclusion upon the following circumstances which did not obtain in the Williams case: (1) In the case at bar the intervening petitioners were asked to make an offer on the property and they expressly refused to do so saying that they preferred to wait and probably exercise their option to pay $1.00 more than any bonafide offer. (2) After the administrator ad litem and the real estate agent had obtained a bonafide offer in writing to purchase the property at $25,000, the intervening petitioners submitted a counter offer in writing raising the price to $25,001 which offer was accepted by the administrator ad litem. (3) As found by the Chancellor the real estate agent rendered valuable services to the estate of Daniel Hon for which he was entitled to be compensated.
It would be inequitable to deny him compensation for his services. To sustain petitioners’ claim to buy for $22,501 and to pay the real estate agent a fee out of this sum would be inequitable to the creditors of Daniel Hon.
The decree of the lower court is affirmed and the petition for writ of error is denied at the cost of the petitioners.
MATHERNE and NEARN, JJ., concur. |
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Lawrence J. SCHWAB, Appellant-Appellee, v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO, LOCAL NO. 782 et al., Appellants-Appellees.
Court of Appeals of Tennessee, Western Section.
March 2, 1972.
Certiorari Denied by Supreme Court June 5, 1972.
Anthony J. Sabella, Memphis, J. Howell Glover, Union City, for plaintiff in error.
Goheen, Schultz & Yaffe, Paducah, Heathcock & Cloys, Union City, for defendants in error.
MATHERNE, Judge.
The plaintiff Lawrence J. Schwab sued for damages resulting from the malicious conduct of the defendants which caused plaintiff’s employer to discharge the plaintiff from his employment. The named defendants are International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (hereinafter referred to as International); Local 782 of the International (hereinafter referred to as Local) ; and Wayne Larrison, individually and as agent for the Local.
At the conclusion of the plaintiff’s proof the Trial Judge directed a verdict in favor of the International; the cause went to the jury as against the other two defendants. The jury returned a verdict for the plaintiff in the amount of $35,000.00. On motion for a new trial the Trial Judge suggested a remittitur of $10,000.00, which was accepted by the plaintiff under protest.
The Local raises two issues on appeal: (1) There is no material evidence to sustain the verdict, and (2) The verdict is excessive, and is so excessive as to indicate passion, prejudice and unaccountable caprice on the part of the jury.
The plaintiff on appeal raises the following issues: (1) The Trial Judge erred in excluding certain testimony of the plaintiff relative to statements made to him by the business agent of Local 290 of Dayton; (2) The Court erred in refusing to admit into evidence the Constitution and ByLaws of the International; (3) The Court erred in directing a verdict in favor of the International; and (4) The Court erred in suggesting a remittitur of $10,000.00.
The defendant Local filed a motion to dismiss the plaintiff’s appeal in error because the plaintiff did not perfect and file a bill of exceptions within the time allowed by law; and the plaintiff did not file its assignments of error and brief within the time required by the Rules of this Court. The record reveals a complete bill of exceptions filed by the Local within the time allowed by law. That record does not belong to either party, but is equally available to both parties, whether on appeal in error or on writ of error. Waller v. Skeleton (1948) 31 Tenn.App. 103, 212 S.W.2d 690; Davidson v. Burger (1952) 36 Tenn.App. 486, 259 S.W.2d 541. The plaintiff can therefore assign errors on his appeal in error based upon the bill of exceptions filed. The plaintiff’s attorney, Mr. Sabella, filed an affidavit in this Court that he was associated by attorney John Hart of Union City, who is now deceased; that attorney J. Howell Glover of Union City replaced Mr. Hart, and through a misunderstanding between Mr. Glover and Mr. Sabella as to which would file the assignments of error, the time for filing was inadvertently allowed to expire. We will accept that explanation and treat the time for filing assignments of error, brief and argument by the plaintiff as extended to the date of filing. The motion to dismiss the plaintiff’s appeal in error is overruled.
It is established in this State that every man has the right of property in his own labor, and the right to work without interference; and whoever intentionally interferes with this right is liable in tort for the damages caused, unless he can show a privilege or justification for such interference. Dukes v. Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 437, et al (1950) 191 Tenn. 495, 235 S.W.2d 7; Large v. Dick (1960) 207 Tenn. 664, 343 S.W.2d 693. We further hold the fact the employment is for no stipulated period of time but may be ended at the will of the employer or the employee is of no consequence, because such a right to terminate by the parties does not render the employment subject to the will of others. See: Hill Grocery Co. v. Carroll (1931) 223 Ala. 376, 136 So. 789; Architectural Mfg. Co. of America v. Airotec, Inc. (1969) 119 Ga.App. 245, 166 S.E.2d 744. The form of an action at common law for malicious interference with a person’s employment has probably been most accurately designated as trespass on the case. See: Savard v. Industrial Trades Union of America (1950) 76 R.I. 496, 72 A.2d 660.
The record reveals the plaintiff is a member in good standing of the International, plaintiff’s home local being No. 678 of Lake Charles, Louisiana. The plaintiff was sent on a shipping letter signed by Mobley and Speed Cement Contractors to the Goodyear Tire and Rubber Company plant being constructed in Union City, Tennessee, to be a foreman for Mobley and Speed under its sub-contract to lay wire mesh and pour concrete for the floors of the Goodyear plant. This shipping letter under the custom of the trade was delivered to the defendant Wayne Larrison, the business agent for Local 782 of Padu-cah, Kentucky, it being the local out of which workers for the Goodyear plant would be obtained. Larrison and the plaintiff agreed on the number of workers the Local would supply for the particular job, which appears to have been six men.
According to the record the rules of the Local and the International require a foreman and a job steward on each job where union members work. The job steward is one of the workers and it is his duty to take up with the foreman any complaints of the workers. The job steward on this Mobley and Speed job was Julian Woods. The Local had the complete say as to what men worked on the job, and who was the job steward. The foreman was not supposed to do any work which was normally the duty of the workers or journeymen. The plaintiff foremen had immediate charge of the job; he supervised the work; saw that it was accomplished according to specifications; kept the time record of the men working under him; and was responsible to the field superintendent, B. J. Watkins, who in turn was responsible to the general superintendent of Mobley and Speed, B. M. Housewright, of Dallas, Texas.
There is material evidence to sustain a finding that the workers under the plaintiff made complaints to the job steward that the plaintiff shorted them on time worked; he did on occasion do work which was the duty of the workers; he worked them too many hours in one day on several occasions; and, he screamed at them while they were working. The job steward took these matters up with the plaintiff, and also with Mr. Watkins. There is no proof in the record of an actual shorting of time by the plaintiff; the errors were apparently committed by the time keeper to whom the plaintiff delivered the time book once a week; these errors were corrected. There were two proven minor violations of the regulation which prohibited the plaintiff from doing any work, which appear to be insignificant; the work did progress for long hours on certain days because of the necessity to complete a “pour” once it was started, but the hours worked without stopping were within the maximum number of hours the men agreed to work in any one day; the screaming charge did not cause any fright or apprehension on the part of the workers; there was on one occasion a failure to have drinking water available when a worker wanted a drink of water. These complaints do not, under the record, justify an interference with the plaintiff’s right to work.
The record reveals conflicting evidence on whether the plaintiff did or did not consume alcohol on the premises of the job. The plaintiff admitted bringing each worker one bottle of beer one night with their supper while they were working overtime. The plaintiff’s superior denied that plaintiff drank on the job, and rated him as an efficient and desirable foreman. There is material evidence from which the jury could conclude that the Local’s charge that the plaintiff drank alcohol on the job was unfounded as a reason or justification for the Local’s interference with the plaintiff’s right to work.
The record reveals Julian Woods the shop steward felt strongly about the regulations under which he and his men, members of the International, worked, and did jealously guard those rights. The record also reveals the plaintiff was a competent, hard working, get-the-job-done type of foreman, which probably resulted in his having been employed by Mobley and Speed in that capacity throughout the south and southeast. It is not unusual that these two men had various complaints about each other.
There is material evidence that on Friday, October 11, 1968, some conversation took place between the plaintiff and Julian Woods concerning an error in the workers’ checks. The plaintiff testified Woods told him he, Woods, was quitting and he wanted his check. The plaintiff got Woods’ check for time worked, and Woods left the job. The plaintiff left the job that morning to go to his home for the weekend. The job superintendent Watkins left the job at about 2:30 p. m. to go to his home. Woods testified that he did not quit but just went to the Local’s hall on business. That testimony is contradicted by the fact he did receive his checks as on a termination. Woods was told by the Local’s assistant business agent to return to the job; he did return to the job, and worked that weekend without permission from Watkins. The plaintiff and Watkins testified that when Watkins returned to the job on Monday morning, Watkins discharged Woods and paid him for work done that weekend. The testimony conflicts as to whether Woods told the other men to quit upon his being fired, but the fact is established they did all quit and go to the Local’s hall in Paducah.
Mr. Watkins telephoned the defendant Larrison at the Local’s hall and requested the job be manned immediately. Watkins stated he was told by Larrison that if the plaintiff was fired everybody would be a lot happier, and informed him that nobody was going to fire one of his stewards. Watkins notified his superior Mr. House-wright who flew to the job from Dallas, Texas. Mr Housewright testified that the defendant Larrison told him that Julian Woods was the only job steward they would have unless they fired the plaintiff; that if the plaintiff was discharged, Mr. Woods would be removed and the job re-manned, otherwise the job would not be manned. Mr. Housewright stated that the plaintiff was discharged from his job “in order to get Mr. Larrison to reman the job; Mr. Larrison stated this was the condition under which he would reman the job.”
The record establishes the plaintiff averaged $600.00 per week on the Goodyear job. The Mobley and Speed portion of the Goodyear job was completed in January, 1969. It is also established the plaintiff worked regularly prior to the present discharge and he averaged $500.00 to $600.00 per week on Mobley and Speed jobs prior to the Goodyear job. The plaintiff was off work for five weeks after his discharge. Plaintiff then obtained a job as foreman through his local 290 at Dayton with Baystone Construction Company; that employer did, however, specifically request the assignment of plaintiff to it as foreman. Plaintiff worked for Baystone about six to eight weeks. Local 290 sent him as a laborer with Metal Builders for four or five weeks; and, sent him to Daley Construction Company as a laborer for two weeks, that job being his last job until the date of trial, December 16, 1970. The plaintiff testified his Local No. 290 of Dayton had not assigned him to a job since he filed the present lawsuit on May 2, 1969. The plaintiff testified he has lost not only wages, but also other benefits such as pension rights and insurance. The record clearly reveals the only way a person in plaintiff’s avocation, and a member of the International, can obtain employment is by, through, or with the consent of a Local of the International. The record clearly reveals the plaintiff has lost his standing with his union, and there is material evidence upon which the jury could find the plaintiff “black-balled” from employment.
There is ample material evidence from which the jury could conclude that the defendant Local, acting through its business agent Larrison, did maliciously interfere with the employment of the plaintiff and thereby cause him to be discharged. The Local’s first assignment of error is overruled.
The second question on appeal by the Local raises the issue of the proper elements of damage in lawsuits of this nature. In the Dukes case, supra, the trial judge had sustained a demurrer to the declaration. On review, the Supreme Court held the declaration did not state a cause of action for slander, but it did allege a cause of action for damages because the defendants unlawfully procured the discharge of the plaintiff, and remanded for trial. In its opinion, the Supreme Court made the following statement as to the measure of damages:
“We think that a fair statement as to the measure of damages under the situation here presented is: ‘The measure of damages for unlawfully procuring the discharge of an employee is based on the direct and proximate results of the wrongful acts of the defendant and not on the breach of the contract of employment, and ordinarily plaintiff may recover the amount which would have been earned by him except for defendant’s interference, less such sums as were actually earned at other employments.’ 57 C.J.S. Master and Servant § 632, p. 439.”
The Local on appeal claims damages must be limited to the work lost by the plaintiff on the Goodyear job only; the plaintiff is not entitled to punitive damages ; and the amount as remitted is excessive. The plaintiff insists he is entitled to relief for all work lost because of the unlawful interference; future as well as past earnings are at issue; he is entitled to punitive damages; and the court erred in suggesting the remittitur. We will review these conflicting contentions in the light of the foregoing definition of the measure of damages as set out in the Dukes case, supra.
We hold punitive damages may be awarded aginst a party who maliciously induces an employer to discharge an employee; and punitive damages are contemplated in the measure of damages as stated in the Dukes case. See: Wyeman v. Deady (1906) 79 Conn. 414, 65 A. 129; Cotton v. Cooper (Tex.Com.App. 1919) 209 S.W. 135; Clarkson v. Laiblan (1919) 202 Mo.App. 682, 216 S.W. 1029; United States Fidelity & Guaranty Co. v. Millonas (1921) 206 Ala. 147, 89 So. 732; Hill Grocery Co. v. Carroll, supra; Brotherhood of Locomotive Firemen and Enginemen v. Hammett (1962) 273 Ala. 397, 140 So.2d 832.
Punitive damages are not based upon the nature and extent of the injury inflicted so much as upon the oppression exercised by the party who does the injury, and the basis therefor is not compensation for special injury, but is punishment for the mala fides of the party doing the injury. Louisville & N. R. Co. v. Ray (1898) 101 Tenn. 1, 46 S.W. 554. It has therefore been held that it is necessary to set out in the declaration the facts constituting fraud, malice, oppression, etc., upon which the claim for punitive damages is to be predicated; it is not necessary, however, that in so many words some of the damages claimed be stated as exemplary or punitive. Louisville & N. R. Co. v. Ray, supra; Allen v. Melton (1936) 20 Tenn.App. 387, 99 S.W.2d 219.
The declaration alleged the plaintiff faithfully performed his duties as foreman and as a member of the International, but the Local through its agent Larrison, did willfully, maliciously, and intentionally cause the employer to terminate plaintiff’s employment by informing the employer the Local would not man the job unless the plaintiff was discharged as foreman, and the only source of manpower for the job was through the Local. We hold these allegations would justify an award of punitive damages, if substantiated by the proof. The Trial Judge did not charge the jury on punitive damages, and the plaintiff made no special request therefor. We therefore conclude the plaintiff cannot now complain.
We further hold, where the damages are of a continuing nature, the employee is not confined to damages which have accrued up to the institution of suit, or even up to the date of the trial, but future as well as past damages may be proven. See: Hanson v. Innis (1912) 211 Mass. 301, 97 N.E. 756; Loudin v. Mohawk Airlines, Inc. (1964) 44 Misc.2d 926, 255 N.Y.S.2d 302. The proof in this lawsuit is such that the jury could find the damages continuous in nature, and that the plaintiff has been unable to work due to the acts alleged, since the filing of this lawsuit. In an action in tort for damages, “based on the direct and proximate results of the wrongful acts of the defendant” (Dukes case), the normal interpretation of those words would include damages which could foreseeably result from such wrongful action. The action proved in this record smacks of revenge rather than the legitimate protection of the economic interests of the union; the jury could find the Local acted out of spite and singled the plaintiff out and acted so as to deny him employment which other union members were allowed to obtain. This conduct where found is maliciously oppressive, and is actionable. See and compare: Barile v. Fisher (1949) 197 Misc. 493, 94 N.Y.S.2d 346; Brotherhood of Loc. Fire, and Eng. v. Hammett, supra; Savard v. Industrial Trades Union of America, supra.
The definition of the measure of damages in Dukes, supra, would not permit the application of the New York rule to the effect there is no duty on the part of a person who has been deprived of his contract of employment by the intentional wrong of another to minimize the damages to the wrongdoer by entering upon other employment. See: Hayes v. Utica Mut. Ins. Co. (1965) 24 A.D.2d 829, 264 N.Y.S.2d 142; Carmen v. Fox Film Corp. (1923) 204 App.Div. 776, 198 N.Y.S. 766. The Trial Judge properly charged the jury in the instant case on the plaintiff’s duty to minimize damages, and the consideration to be given the amounts received from other employment. Neither the Local nor the plaintiff has a legitimate complaint in this respect.
We further hold that where the conduct of the defendant in causing a breach by the employer of the employee’s contract to work is not only wrongful, but is also malicious and oppressive, the plaintiff may, in addition to other damages, recover for mental suffering occasioned thereby. Carter v. Oster (1908) 134 Mo.App. 146, 112 S.W. 995; United States Fidelity & Guaranty Co. v. Millonas, supra; Hill Grocery Co. v. Carroll, supra; Lopes v. Connolly (1912) 210 Mass. 487, 97 N.E. 80; Savard v. Industrial Trades Union of America, supra. The record in this cause would justify a finding of mental suffering, and damages therefor.
In summary we conclude there is no reversible error in the record as pertains to the amount of the verdict as remitted by the Trial Judge. There is no fixed rule by which unliquidated damages may be determined. The finding by the jury, as reduced by the Trial Judge demands great weight by this Court. We hold from the record the amount of $25,000.00 is within the proof adduced, is reasonable, does not in any manner shock the conscience of the Court, and is affirmed. All assignments by both appealing parties directed to the amount of the judgment are overruled.
On the issue of the directed verdict in favor of the International, we find no error under the record. Under the authorities herein cited, we hold an international may be held liable for maliciously depriving an employee of further employment,'even though the local is not so liable. See and compare: Brotherhood of Loc. Fire. & Eng. v. Hammett, supra; Savard v. Industrial Trades Union of America, supra. Under the record in the instant case, however, there is a total failure on the part of the plaintiff to prove a plan, scheme, conspiracy, or course of action on the part of the International which would justify a judgment against it; niether is there any proof of duties owed by the International.
The plaintiff offered a copy of an outdated constitution and by-laws of the International which was properly rejected by the Trial Judge. The plaintiff offered to testify as to a statement by the business agent of Local 290 of Dayton to the plaintiff that plaintiff would never get work through that Local unless this lawsuit was dismissed. That statement was properly excluded by the Trial Judge under the record as presented. The plaintiff did prove he paid dues to the International, but he failed to prove that to which he may have been entitled from that body by virtue of the payment of dues to it. Under this record any liability found on the part of the International would have of necessity been based on mere surmise, conjecture, and speculation. All assignments of error by the plaintiff relating to the rejection of evidence, and the directed verdict in favor of the International are overruled.
It results all assignmnts of error of all appealing parties are overruled and the judgment of the Trial Court is affirmed. The cost of this appeal is adjudged one-half against each appealing party, for which let execution issue.
CARNEY, P. J., and NEARN, J., concur. |
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Thomas Alton McCRARY, Petitioner, v. CITY OF ODESSA, Respondent.
No. B-2830.
Supreme Court of Texas.
June 7, 1972.
Rehearing Denied July 12, 1972.
Svanas & Svanas, Gloria T. Svanas, Odessa, for petitioner.
Shafer, Gilliland, Davis, Bunton & McCollum, Lucius D. Bunton and Ray Stoker, Jr., Odessa, for respondent.
POPE, Justice.
Leonard McCrary filed this action as next friend of Thomas Alton McCrary, a minor, against City of Odessa and Audie Shows for injuries sustained by Thomas McCrary in an automobile collision on May 23, 1966. Defendants filed their motion for summary judgment which the trial court granted. The court of civil appeals affirmed the judgment as to the City of Odessa and reversed the judgment and remanded the cause for trial as to defendant Shows. McCrary v. Shows, Tex.Civ.App., 466 S.W.2d 803. Shows has not appealed from that judgment. We reverse that part of the judgment of the court of civil appeals which affirmed the trial court’s judgment as to the City of Odessa and we remand the entire cause to the trial court for trial.
The basis for the trial court’s summary judgment, as it appears from the pleadings and the motion, may have been either that the City of Odessa was immune from liability since the accident arose out of its performance of a governmental function, or that plaintiff McCrary failed to comply with a city charter requirement that he give a prescribed notice within sixty days from the date of the accident. We shall examine both of these defenses.
On May 23, 1966, when McCrary was eighteen years of age, the vehicle which he was driving collided with a city vehicle driven by defendant Shows. City of Odessa pleaded its governmental immunity as one of its defenses. Since the accident occurred prior to the effective date of the Texas Tort Claims Act, the defense would be valid. Art. 6252-19, § 14(1), Vern.Tex. Civ.Stats. See also Section 14(8) for a claim arising after the effective date. City of Odessa’s motion for summary judgment was supported by a single affidavit, that of Ronald Neighbors, its city manager. Neighbors’ affidavit stated that Shows, at the time of the accident, was assistant fire chief “and was driving the City vehicle in his official capacity as Assistant Fire Chief.” The affidavit also stated that Shows was proceeding to the fire in line with a city policy that requires the assistant fire chief to be present at all fires. That was all of the summary judgment proof touching the defense of governmental immunity. The affidavit, however, also shows that Neighbors was not the city manager at the time of the accident, that he possessed no personal knowledge of any facts stated therein, and that he obtained his information from a search of the records in the City Hall. In our opinion, the summary judgment proof consisted of conclusions based upon hearsay and is no different from that which we rejected in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963), and Empire Finance Service, Inc. v. Western Preferred Life Ins. Co., 461 S.W.2d 489 (Tex.Civ.App.1970, writ ref’d). City of Odessa failed to establish its right to a summary judgment by reason of its defense of governmental immunity.
We turn now to the other possible basis for the summary judgment for City of Odessa. City of Odessa is a home rule city, see Tex.Const. art. XI, § 5, Vernon’s Ann.St. and its charter contains a provision which states, as a condition precedent to the institution of a suit for personal injuries or damage to property, that the claimant must give written notice to the mayor and City Council within sixty days from the date of the injury. The notice, according to the charter, must state the details of the occurrence, the nature and extent of the injuries, and the amount for which the injured party will settle his claim. The summary judgment proof shows that McCrary did not give notice of the accident until fifty-one weeks after the accident. Two and one-half months later, Leonard McCrary, his father, instituted this action as next friend.
McCrary attacks the validity of the charter provision which requires a minor to give notice within sixty days of an accident, saying that it is violative of Article I, Section 13 of the Texas Constitution. That section states that “[a] 11 courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
Article 1175, Section 6, Vern.Tex.Civ. Stats., authorizes home rule cities to provide exemption from liability from damage claims or to fix rules and regulations governing the city’s liability. Several Texas decisions have sustained the validity of similar charter provisions against a number of attacks. City of Brownsville v. Galvan, 139 Tex. 128, 162 S.W.2d 98 (1942); City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (1938); Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921); Cooper v. City of Abilene, 416 S.W.2d 562 (Tex.Civ.App.1967, no writ); Carrales v. City of Kingsville, 393 S.W.2d 952 (Tex.Civ.App.1965, no writ); Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.1946, writ ref’d); City of Waco v. Thralls, 128 S.W.2d 462 (Tex.Civ.App.1939, writ dism’d. jdgmt. cor.).
In City of Waco v. Landingham, 138 Tex. 156, 157 S.W.2d 631 (1941), a charter notice provision, as a condition precedent to the institution of suit, was sustained against an attack that such provision was in violation of Article I, Section 13 of the Texas Constitution. The court in doing so, however, recognized that there may be exceptions to the general application of such notice requirements and mentioned infants of tender years and those who are either so mentally or so physically incapacitated that they are unable to comply. And, indeed, this exception of mental or physical incapacity has been uniformly followed in Texas. See Simpson v. City of Abilene, 388 S.W.2d 760, 763 (Tex.Civ.App.1965, writ ref’d n. r. e.) ; City of Waxahachie v. Harvey, 255 S.W.2d 549, 551 (Tex.Civ.App.1953, writ ref’d n. r. e.); City of Wichita Falls v. Geyer, 170 S.W.2d 615, 619 (Tex.Civ.App.1943, writ ref’d w. o. m.); 40 Tex.Jur.2d Municipal Corporations § 651 (1962).
The reason for excusing compliance upon proof of such facts is that notice provisions presuppose the existence of a person capable of complying. As expressed in City of Tyler v. Ingram, 157 S.W.2d 184, 189 (Tex.Civ.App.1941), rev’d on other grounds, 139 Tex. 600, 164 S.W.2d 516 (1942), “To hold that a city may, upon adopting such a charter provision, wrongfully injure a person to the degree of rendering the victim powerless to comply with its terms, and then avoid liability by invoking such charter provision in bar of the right to sue, would constitute a complete denial and abrogation of the claimant’s right of recourse to the courts.”
Similar reasoning has excused persons of tender years, for they, too, are powerless to comply with such conditions. Simpson v. City of Abilene, 388 S.W.2d 760 (Tex.Civ.App.1965, writ ref’d n. r. e.) (7 years old). See also City of Barnesville v. Powell, 124 Ga.App. 132, 183 S.E.2d 55 (1971) (4 years old); McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476 (1918) (7 years old); Lazich v. Belanger, 111 Mont. 48, 105 P.2d 738 (1940) (7 years old); Murphy v. Village of Ft. Edward, 213 N.Y. 397, 107 N.E. 716 (1915) (5 years old); Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900 (1942) (8 years old); 18 E. McQuillan, The Law of Municipal Corporations § 53.159 (3d rev.ed. 1963).
This court has not previously determined whether minority alone will excuse compliance with the notice requirement of a municipal charter. In the recent carefully considered case of City of Houston v. Bergstrom, 468 S.W.2d 588 (Tex.Civ.App.1971, writ pending), the court held that minority alone excuses compliance. Language contained in the opinion of Wones v. City of Houston, 281 S.W.2d 133 (Tex.Civ.App.1955, no writ), expressed a contrary view. In that case, however, the twenty-year-old plaintiff had been emancipated. A reading of cases from other jurisdictions reveals no uniformity on this issue. See 56 Am.Jur.2d Municipal Corporations, Etc. § 782 (1971); Annot., 34 A.L.R.2d 725, 738-739 (1954).
We hold that McCrary was excused from compliance with the charter notice provision during the time he was under the disability of minority. Such a result is consistent with our decisions and rules in other areas of our law wherein minors are excused from strict compliance with time limitations. In Latcholia v. Texas Employers Ins. Ass’n, 140 Tex. 231, 167 S.W.2d 164 (1943), a seventeen-year-old boy was hurt in the course of his employment. He failed to comply with Section 4a of the Workmen’s Compensation Act, Art. 8307, Vern.Tex.Civ.Stats., by not giving notice of an injury within thirty days. We examined a broad range of precedents from outside this jurisdiction and there determined to follow those illustrated by the decisions of Illinois and North Carolina, citing Walgreen Co. v. Industrial Commission, 323 Ill. 194, 153 N.E. 831, 48 A.L.R. 1199 (1926), and Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429 (1941). We quoted this from Lineberry:
“It would create an anomalous situation to hold that a claimant who is without capacity to receive and receipt for compensation or to assert his right must nevertheless present his claim or forever thereafter be barred from so doing. Such an interpretation would be as unjust to the employer as to the employee.” [167 S.W.2d at 166]
We also held in Ladehoff v. Ladehoff, 436 S.W.2d 334 (Tex.1968), that a minor who was not personally served in a will contest proceeding which occurred when he was twelve years old, could bring a direct attack upon the same will when he became twenty-one. Unlike the present case, however, the Probate Code contained provisions which preserved the minor’s rights.
The court of civil appeals in its opinion in City of Houston v. Bergstrom, supra, draws an analogy to the policy of our State as expressed in its limitation statutes and particularly Article 5535, Vern.Tex.Civ.Stats., which excuses a minor from the commencement of an action for personal injuries while he is under the disability of minority.
We conclude that legal incapacity should be treated in a manner similar to and consistent with our rules concerning mental and physical incapacity and hold that Thomas Alton McCrary, being under legal incapacity to institute or settle a claim in court, was excused from compliance with the notice requirement until he reached the age of twenty-one or until his disabilities were removed.
We leave undisturbed that part of the judgment of the court of civil appeals which reversed the summary judgment of the trial court as to Audie Shows and remanded that part of the cause for retrial. We reverse that part of the judgment of the trial court and the court of civil appeals affirming the summary judgment for City of Odessa and remand that part of the cause to the trial court.
WALKER, STEAKLEY and McGEE, JJ., dissent.
WALKER, Justice
(dissenting).
A home rule city has full power to enact any ordinance not inconsistent with the Constitution or with general law. The ordinance now in question contravenes no general law and is expressly authorized by Art. 1175, V.A.T.S. It seems particularly inappropriate then for this Court to promulgate an arbitrary judicial exception. The ordinance may not be constitutionally applied, of course, in a manner that will destroy the rights of one who was, in fact, physically or mentally incapable of giving notice, and anyone under a legal disability obviously could not be expected to make an offer of settlement. These and the other exceptions mentioned in Wones v. City of Houston, Tex.Civ.App., 281 S.W.2d 133 (no writ), are entirely proper, but I would not hold that the ordinance has no application to every person under 21 years of age.
STEAKLEY and McGEE, JJ., join in this dissent. Opinion delivered June 7, 1972.
. Art. Ill, § 12, Charter of the City of Odessa :
Before the City of Odessa shall be liable for damages for personal injuries of any kind or for injuries to or destruction or damaged [sic] to property of any kind, the person injured or the owner of the property so injured, damaged or destroyed or someone in his behalf, shall give the mayor and city council notice in writing of such injury, damage or destruction, duly verified, within sixty days after the same has been sustained, stating in such written notice when, where and how the injury, damage or destruction occurred, the apparent extent thereof, the amount for which the claimant will settle, the street and residence number of the claimant at the time and date claim was presented and the actual residence of such claimant for the six months immediately preceding the occurrence of such injuries, damage or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim; and a failure to so notify the mayor and city council within the time and manner provided therein shall exonerate, excuse and exempt the city from any liability whatsoever.
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sw2d_482/html/0155-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Ellis Kennedy DOUTHIT, Appellant, v. The STATE of Texas, Appellee.
No. 44266.
Court of Criminal Appeals of Texas.
Dec. 21, 1971.
Rehearing Denied May 17, 1972.
Second Rehearing Denied July 12, 1972.
Herrington, Levgarg, Weeks & Jones by J. Terry Weeks, Austin, Charles W. Tess-mer (on appeal), Ronald L. Goranson, Dallas (on appeal), for appellant.
Robert O. Smith, Dist. Atty., Herman Gotcher, Lawrence Wells and Sykes Houston, Asst. Dist. Attys., Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction by a jury for assault with the intent to commit rape. The court assessed the punishment at sixteen years.
The sufficiency of the evidence is challenged.
At approximately 11:00 p. m., September 6, 1969, the prosecutrix, a married woman twenty-two years of age who had been visiting her parents, was returning to their room in the Chariot Inn Motel in Austin with some hamburgers and cigarettes for them. Just as she turned into the motel driveway, a car behind her flashed a red light. She pulled over and parked. The appellant, who was the driver of the other car, identified himself as Sergeant Reed showing her a badge and identification card. He told her she had made an illegal turn, that he had a pickup on a car like hers, and wanted to talk to her. Appellant told her to leave the hamburgers, get her keys and purse and get into his car.
After the prosecutrix entered appellant’s car he told her he wanted to talk to her husband so they might bring the matter to a close without taking her to jail. Appellant did not turn at her house but turned off and drove down a gravel road. He stopped, turned on the inside light and placed a gun to her neck. He told her that he had killed a policeman, that killing her would make no difference and that he needed a hostage. He tied her hands behind her and tied her ankles.
Appellant told prosecutrix he needed to hide the car in a safe place and asked her where he could do so and then told her that she would not be hurt if she followed his instructions. All of this took place in Travis County.
The prosecutrix then directed appellant to drive toward Wimberley where she and her husband had once lived. Outside San Marcos and on the way to Wimberley he turned onto a side road and stopped. He untied her hands and tied her left arm to her left leg. Appellant then smoked a cigarette , drank a beer and took some pills. They left this spot because he said it was too close to the highway. Appellant then drove into a field and stopped behind a tree, untied her ankles and left hand but then tied her left leg to something under the seat. He smoked, drank more beer and consumed more pills which he told her were dexadrine. This, along with some conversation, lasted about an hour.
Then appellant took off his shirt, saying his shoulder hurt, and told prosecutrix to rub it. After smoking another cigarette he told her to remove her dress. When she hesitated he got angry, put the gun to her stomach and told her she had better do as he said. He had her completely undress and then he undressed. Then appellant forced her to perform oral sodomy upon him. The prosecutrix tried to pull away and began crying, but he held her head down. Appellant then forced her to have sexual intercourse with him. She did not resist because of fear. After reaching a climax the appellant had another cigarette and forced her again to perform oral sodomy. After a few minutes of this he forced her into anal intercourse. She testified that she was in constant fear of her life and would not have otherwise complied with his demands. Around 6:00 or 7:00 a. m. the next day they left this location and went to a motel in San Marcos. Again he had sexual intercourse with her. These events took place in Hays County.
Around 2:30 p. m. they returned to Austin and appellant went to the Austin Municipal Airport and exchanged the rental car he had been driving for his own. The testimony shows that they then went to a motel in Georgetown in Williamson County and again had sexual relations.
Around 9:00 p. m., the appellant let prosecutrix out of the car just outside Austin. She went to the apartment of some friends where the police were called. Dr. Milton J. Railey testified that he examined her, determined that she had recently had sexual intercourse, found markings on her wrists and found the anal area irritated.
The appellant called witnesses from the motel in San Marcos and the one in Georgetown, where he registered under a different name, in an apparent attempt to show that the prosecutrix might have had an opportunity to escape from him. The appellant did not testify.
It appears that appellant was tried for the offense of rape of the prosecutrix and found not guilty in Williamson County. The record contains nothing else regarding that trial.
Appellant contends the trial court erred in its charge to the jury and in refusing to give his requested charge on what constitutes the offense of assault with intent to rape.
The court charged:
“To warrant a conviction of the defendant of an assault with intent to commit the crime of rape, it must appear from the evidence beyond a reasonable doubt, first, that the .defendant, at the time and place alleged in the indictment, made an assault in and upon_ (prosecutrix), and second, that the defendant then and there had the intent by such assault and by threats, as above defined, to obtain carnal konwledge of the said _ (prosecutrix) without her consent and against her will.”
The appellant requested the court to charge:
“To constitute the offense of ‘assault with intent to rape’ there must be an assault and a present intent on the part of the accused to subject the prosecutrix to his will, with her consent or not, so that he may then, at the very time, have intercourse with her.”
Appellant contends that not only must there be an assault accompanied by a present (then and there) intent to rape, but the intent must also be to carry out that intent then and there, i. e. immediately. He relies upon Griffin v. State, 151 Tex.Cr.R. 185, 206 S.W.2d 259. In Griffin, the defendant had forced a woman at gunpoint to get into his car. She inquired as to his intent and he replied that he was going to “get in her pants.” Griffin attempted to fondle the woman during their drive. He stopped at a gate to a field where she tried unsuccessfully to get away. She did manage to throw away the magazine to his gun. He then drove into the field, tried to force her out of the car and threatened to shoot her. Knowing his gun was not loaded she refused. He then took her back to town. Acknowledging the difficulty of the fact situation, this Court, however, did not rule on the sufficiency of the evidence “in view of the fact that the case is to be reversed upon another question.” That other question was the charge. The charge stated that the jury must find beyond a reasonable doubt the defendant “did then and there, unlawfully and by means of force or threats, make an assault upon [prosecu-trix] and that said assault, if any so committed, was made with the intent of the defendant then and there to have carnal knowledge of the said . . . (prosecu-trix), with or without her consent, . This Court said that under such a charge the jury could convict upon facts showing that the accused touched the prose-cutrix or drew the pistol upon her with the ulterior purpose of having intercourse with her. The opinion says this was the former rule but was changed in Cromeans v. State, 59 Tex.Cr.R. 611, 129 S.W. 1129, and since then the rule “appears to be that to constitute the offense of assault with intent to rape there must be a present intent on the part of the accused to subject the prosecutrix to his will, with her consent or not, so he may then, at the very time, have intercourse with her.” (Emphasis supplied.)
We are constrained to look at this question more closely. Particularly we must look at the Cromeans case which is cited in Griffin v. State, supra, as changing the former rule.
In Cromeans v. State, supra, a 16-year-old boy asked a 15-year-old girl to show him her sexual organs and to have sexual intercourse with him. She refused both requests. He then grabbed her hand and she broke loose. He then grabbed her arm; she broke loose and ran. The boy was convicted of assault with intent to rape and assessed a two year punishment. On original submission the judgment was affirmed on the authority of McAvoy v. State, 41 Tex.Cr.R. 56, 51 S.W. 928. In McAvoy, this Court upheld an instruction to the jury stating that “the slightest touching of the person of Carrie Race (a girl under 15 years of age), with the ulterior purpose and intent on the part of the defendant at the time to force his male organ into' the female organ of the said Carrie Race, would constitute an assault with intent to rape.”
In Cromeans, supra, at the second motion for rehearing Special Judge Cobb wrote the opinion reversing the judgment and thereby limiting McAvoy. He stated the Court’s holding as follows:
“Solicitation, accompanied by the expectation of consent and laying on of hands without the use of such force as indicates a purpose to obtain intercourse at the very time, does not amount to assault with intent to commit rape on a girl under 15 years of age.”
The opinion shows concern with the following: (1) the ages of both parties; (2) the slightness of the assaultive action; and (3) what was intended by this action, especially in connection with the immediately preceding solicitation. The Court pointed out that to slightly assault her intending to obtain her consent was not sufficient to establish the crime.
We do not agree with the Griffin interpretation of the rule in Cromeans, Nor do we understand how the charge in Griffin would authorize what the opinion said it would.
The Cromeans case must be limited to its factual situation and holding. It was there stated:
“We hold that the evidence, taking all the circumstances, the age of the parties, the surroundings, the meagerness of the interview, the few words, the slight act of touching, does not justify the verdict.” 129 S.W. at 1135.
If it has ever been the rule that where a man makes an assault by threatening and holding a gun upon a woman with intent to forcibly have intercourse with her against her will, that such intent must be to have intercourse “then, at the very time,” it is now no longer the law.
We hold that when an assault is made with intent to forcibly rape a woman, the offense is complete at that time though he planned to take the victim to some other location, even to another county, to carry out his purpose.
To the extent that Griffin v. State, supra, and any other cases are in conflict with the holding in the present case they are overruled.
The charge in the present case adequately sets out the essential elements of an assault with intent to rape.
Ordinarily the accused will be prosecuted in the same county where he attempts to carry out his design.
Next, the appellant contends the evidence was insufficient to show a present intent to rape in Travis County since there he neither made remarks to the prosecutrix concerning any intent to rape nor did he engage in any sexual acts with her in Travis County. As noted above, a present intent to rape must accompany the assaul-tive action. If there was no intent in Travis County but it arose later in another county, he could not properly be convicted for assault with intent to rape in Travis County.
On direct examination regarding the first alleged sexual acts in a field near Wimber-ley in Hays County, the following was stated:
“Q. Okay, one other point I would like to clarify. As you were in the field as you testified yesterday, and I believe you stated that the defendant pointed a pistol in your stomach.
“A. Yes, sir.
“Q. And he told you to undress. Was there a conversation at this point?
“A. Well, he asked me if I had any idea that this was going to happen, and I said, well, that I presumed that it was, that I couldn’t think of any other reason why he would have stopped me.”
The asking of the question plus his acts indicate appellant’s intent when he had the prosecutrix enter his car and forced her at gunpoint to come with him, and he inquired whether she realized this intent. She stated that she did. Apparently the jury had no reasonable doubt about appellant’s intent to rape when he began his assaultive action in Travis County both from the acts which occurred during the entire episode as well as this testimony. The fact that he forced her to commit sodomy upon him does not show as contended by appellant that he could have taken her for that purpose alone. He could have taken her for both purposes. The fact that he stated that he needed a hostage because he had killed a policeman did not disprove that he assaulted her with the intent to rape. From the facts and circumstances it was reasonable for the jury to so conclude that the assault with the gun in Travis County was made for the purpose of rape. We find the evidence is sufficient to support their conclusion.
Appellant also contends that a completed act of sexual intercourse will not support a conviction for assault with intent to rape. He cites Taylor v. State, 50 Tex.Cr.R. 362, 97 S.W. 94; Bourland v. State, 49 Tex.Cr.R. 197, 93 S.W. 115; Callison v. State, 37 Tex.Cr.R. 211, 39 S.W. 300. These cases describe assault with intent to rape as incomplete rape, but they do not support appellant’s contention which was explicitly rejected by this Court in Carr v. State, 158 Tex.Cr.R. 337, 255 S.W.2d 870. See Nielson v. State, Tex.Cr.App., 437 S.W.2d 862, and the cases there cited. No error is shown.
Complaint is made that the trial court erred in refusing to grant a new trial because the jury conducted an experiment and considered evidence not introduced at the trial. At the hearing on the motion for new trial, one of the jurors testified that she had been worried about no bruises on the prosecutrix’s ankles from the electric cord which was tied around them. She testified that during their deliberations she took the cord from the coffee pot and had another juror assist her in tying it around her ankles. She stated that “[t]he cord was so thick we couldn’t do anything with it, and I thought, well, this is silly, so I took off the cord.”
While as a general rule it is improper for a juror to perform experiments or demonstrations in the jury room, it is not every demonstration that calls for a reversal. McLane v. State, Tex.Cr.App., 379 S.W.2d 339. It must be shown that some new fact, hurtful to the appellant, was discovered by the experiment and influenced the jury in the case. Ingram v. State, Tex.Cr.App., 363 S.W.2d 284. No such showing is made in the present case.
Next, the appellant contends the carving and former acquittal doctrines bar prosecution in the present case because he was acquitted on a charge of rape arising out of the same transaction.
Under the carving doctrine the State may carve as large an offense out of a single transaction as it can but it must cut only once. Suber v. State, Tex.Cr.App., 440 S.W.2d 293. Appellant contends that the entire episode beginning in Travis County, continuing through the other two counties, and ending in Travis County was a single transaction. Because the prosecutrix was under a continuous assault appellant cites Paschal v. State, 49 Tex.Cr.R. 911, 90 S.W. 878, as authority for his contention. In Paschal, the defendant
“. . . threw an orange at his wife, and struck her between the eyes with it, and she fell; ... he then hit her with his fist, knocked her down, and kicked her, and then threw a rock and hit a cow; ... he then stamped and choked his wife; . . . the latter then went to the hogpen, and he hit her again; . appellant’s wife and witness then started to the house, and at the fence appellant caught her again, and cut her clothes; . . . they then went in the house, and he began cutting her clothes with a knife again; ... he jerked her to the floor and kicked her, and made as if he was going to kick her again; they then went into the south room and appellant then went out into the yard and got a stick, came back into the room, and held the stick up over witness and appellant’s wife, but never struck either one of them with it; . . .” Id., at 879.
Paschal had already been convicted for the offense of aggravated assault growing out of the above-stated facts. Hence, this Court stated:
“This is one continuous transaction, within the contemplation of the clause of the Constitution which inhibits a second trial for the same offense; and, being such, the state cannot be permitted to prosecute again for assault with intent to murder. The state can carve the minor part of the transaction and convict on that, or can carve the major part of the transaction and convict on that. However, the state can carve only the one time.” Id., at 880.
The various methods of assault by throwing an orange, hitting, cutting clothes, stomping, and the like, with one following almost immediately upon the other and virtually at the same place constitute a single transaction.
In the present case we have a continuous assaultive action during which several other transactions and completed crimes occurred. In Ledesma v. State, 141 Tex.Cr.R. 37, 181 S.W.2d 705, the appellant and another raped the prosecutrix alternatively six times each while the other held a knife to her throat. This Court referred to the “several acts of sexual intercourse” as “transactions” which were “accomplished by one continuous act of force and threats.” In the present case the transactions were even more separated in time and place.
The carving doctrine does not preclude a prosecution for assault with intent to rape in Travis County after a prosecution for rape in Williamson County because, even though the prosecutrix was under one continuous act of force and threats, the two offenses were not part of a single transaction. The proof shows more than one assault with intent to rape.
The appellant also contends the doctrine of former acquittal bars his being convicted for assault with intent to rape after the acquittal for rape. He relies upon Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
Ashe, the case most in point for our question, applied the federal doctrine of collateral estoppel to the states and said:
“It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443, 90 S.Ct. at 1194.
Further, the Supreme Court stated:
“Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Id., at 444, 90 S.Ct. at 1194.
The appellant in this case pled former acquittal prior to trial. But no record of the former trial is before this Court to examine so we do not know upon what the jury grounded its verdict. See Ex parte Billy Ray Johnson, Tex.Cr.App., 472 S.W.2d 156, and Hutchings v. State, Tex.Cr.App., 466 S.W.2d 584. Even without the record we do not see how a verdict of not guilty of rape in Williamson County would determine any issue of ultimate fact precluding a verdict of guilty for assault with intent to rape in Travis County.
The appellant also contends the trial court erred when it authorized the jury to convict him if they found that he did make an assault and did then and there intend by threats to have carnal knowledge of the prosecutrix. He relies upon Milton v. State, 23 Tex.App. 204, 4 S.W. 574; Taylor v. State, 22 Tex.Cr.R. 529, 3 S.W. 753, for the proposition that the offense of assault with intent to rape cannot be committed by threats or fraud. Appellant admits that there was no objection or special requested charge as required by Articles 36.14 or 36.15, Vernon’s Ann.C.C.P. He, however, contends this was fundamental error so that this Court has authority to review the unassigned ground of error in the interest of justice. See Article 40.09, Section 13, V.A.C.C.P. Even if the instruction may have been erroneous, the evidence shows more than threats by appellant toward the prosecutrix so that the error, if preserved, would not be calculated to injure the rights of the appellant. See Article 36.19, V.A.C.C.P. No fundamental error is shown.
Finally, appellant complains, again as unassigned error, that the trial court committed reversible error in allowing the prosecutrix to reiterate on rebuttal the testimony she gave on direct examination. No objection was made. The matter is discretionary with the court and not fundamental error. See Lee v. State, 67 Tex.Cr.R. 137, 148 S.W. 706.
The evidence is sufficient to support the conviction.
There is no reversible error. The judgment is affirmed.
ONION, P. J., dissents.
MORRISON, J., dissents to that part of the opinion on carving.
ON MOTION FOR REHEARING
Rehearing denied.
ONION, Presiding Judge
(dissenting).
Article 1162, Vernon’s Ann.P.C., provides that:
“If any person shall assault a woman with intent to commit the offense of rape, he shall be confined in the penitentiary for any term of years not less than two.” (emphasis supplied)
To constitute an assault with intent to commit rape, the State has the burden of proving a specific intent to rape, and said burden is not satisfied by evidence showing only a mere possibility of such specific intent. Moreover, the rule has been that there must be a present intent to commit rape accompanying the assault, with a few cases stating that there must be a showing that the assailant intended rape “at the very time” or “at once” or “then and there.”
Consistent with these authorities the indictment in the instant case charged the appellant with assaulting the prosecutrix “with the intent then and there to commit the offense of rape.” (emphasis supplied).
The court also instructed the jury in its charge as follows:
“To warrant a conviction of the defendant of an assault with intent to commit the crime of rape, it must appear from the evidence beyond a reasonable doubt, first, that the defendant at the time and place alleged in the indictment, made an assault in and upon S- E-, and second, that the defendant then and there had the intent by such assault and by threats, as above defined, to obtain carnal knowledge of the said SE-without her consent and against her will.” (emphasis supplied)
In the instant case, the prosecutrix entered the appellant’s car at his request after he had identified himself as Sergeant Reed under the circumstances described in the opinion on original submission.
After they had driven a while the appellant stopped the car, placed a gun to the prosecutrix’s neck, told her he had needed a hostage as he had killed a policeman and would kill her if necessary. He tied her hands and ankles. This assault took place in Travis County, and it was this assault which is made the basis of this prosecution.
The appellant asked the prosecutrix to suggest a place where he might hide his car, and she suggested Wimberley where she had once lived. They drove the thirty miles from Austin to San Marcos and then toward Wimberley. After a while appellant stopped, smoked a cigarette, drank a beer and took some pills. Later he drove on “out by Devil’s Backbone” and stopped in a field. Here he drank some more beer, smoked and consumed more pills and talked to the prosecutrix. Later he asked her to rub his shoulder and then told her to take off her clothing and he undressed. It was at this point that the act of oral sodomy was committed, and this was followed by the act of sexual intercourse and other acts described in the earlier opinion. These sexual acts all took place in Hays County.
The prosecutrix testified that they were in the field approximately one hour before the first sexual relations were had.
As stated in the opinion on original submission,
. .As noted above, a present intent to rape must accompany the assaul-tive action. If there was no intent in Travis County but it arose later in another county, he could not properly be convicted for assault with intent to rape in Travis County.”
In order to find the requisite intent in Travis County the majority opinion calls attention to the prosecutrix’s testimony that as she was told to undress and just prior to the act of oral sodomy, appellant asked her if she “had any idea that this was going to happen.” She replied, “[TJhat I presumed that it was, that I couldn’t think of any other reason why he would have stopped me.”
The majority has seized upon this conversation in Hays County as evidence of appellant’s intent at the time of the assault in Travis County. The prosecutrix’s presumption certainly cannot be utilized for such purpose. This leaves only appellant’s inquiry directed to the prosecutrix while in Hays County, and the testimony never did clarify what “this” in the question had reference to — whether it was to the act of undressing which was then occurring, the act of sodomy which followed or the subsequent sexual intercourse or all of these.
In this regard the prosecutrix’s testimony on cross examination is highly significant.
“Q Mrs. E-, tell me every sexual overture Ken Douthit made to you in Travis County, Texas.
“A None in Travis County.
“Q Did he put a hand on you ?
“A Yes, sir, he did.
“Q And tie you up? Is that correct?
“A Yes, sir.
“Q But sexually, he did not—
“A No, sir.
“Q At all?
“A No, sir.
“Q At the time you left Travis County, had you had any indication that you were —that he was going to have sexual relations with you, any indication by word or sign?
“A I didn’t know.
“Q Had he said anything?
“A No, sir.
“Q Had he done anything that indicated to you he was about to have sexual relations with you?
“A Not that I can recall.”
I cannot agree that the evidence, considered in the light most favorable to the jury’s verdict, shows any more than a mere possibility of the existence of the requisite intent, and this mere possibility is not sufficient to sustain the conviction. Because the evidence relied on to show the requisite intent in Travis County is circumstantial, proof amounting to only a strong suspicion or mere probability is not sufficient. The proof in this case does not exclude every reasonable hypothesis except the guilt of the accused for the offense charged. Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).
As pointed out in the appellant’s brief the facts of this case present a brutal criminal transaction, but these facts do not deprive the appellant of his right to have the State prove the crime alleged in the indictment beyond a reasonable doubt. I agree. As this court said in Robat v. State, 91 Tex.Cr.R. 468, 239 S.W. 966 (1922), “[t]he fact that the conduct attributed to the appellant was atrocious and merited punishment cannot take the place of proof establishing the elements of an assault with intent to rape.”
There is direct evidence in the record tending to show that the following crimes were committed by appellant in Travis County: (1) assault with a prohibited weapon (Article 1151, Vernon’s Ann.P.C.) ; (2) aggravated assault (Article 1148, Vernon’s Ann.P.C.) ; and (3) false imprisonment (Article 1169, Vernon’s Ann.P.C.). Further, there is direct evidence that the following offenses occurred in Hays County: (1) false imprisonment (Article 1169, Vernon’s Ann.P.C.); (2) aggravated assault (Article 1148, Vernon’s Ann.P.C.); (3) assault with a prohibited weapon (Article 1151, Vernon’s Ann.P.C.) ; (4) sodomy (Article 524, Vernon’s Ann.P.C.), and (5) rape (Article 1189, Vernon’s Ann.P.C.). The record also reflects evidence of a rape in Williamson County for which appellant was tried and acquitted.
The State chose to prosecute appellant in Travis County for the offense charged in the indictment and was bound by the requirements of the laws regarding such offense. For these reasons I cannot agree to overrule appellant’s motion for rehearing and to affirm the conviction.
Further, I have grave doubts as to the new rule established by the majority in overruling Griffin v. State, supra, and Cromeans v. State, supra. The law as announced by the majority now returns to the “ulterior purpose” principle first stated as dictum in McAvoy v. State, 41 Tex.Cr.R. 56, 51 S,W. 928 (1899). As I read the majority opinion, it is sufficient for there to be an assault coupled with a “present intent” to rape the victim at some future occasion, i. e., a present intention to do a future act. The law has been well-settled since Griffin, and I see no reason to change it now.
Still further, Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705 (1944), seems to have been misapplied in answering the appellant’s contention regarding the State’s right to carve but one time. Ledesma dealt with the question of whether the trial court should have required the State to elect upon which of several acts the State relied for conviction. It does not stand for the proposition that appellant could be tried and separately convicted for each act of sexual intercourse.
I dissent.
MORRISON, J., joins in this dissent.
. At the penalty stage of the trial it was shown that appellant had been convicted for violating the Federal Mann Act.
. Griffin v. State, supra, and other eases cited by the appellant, e. g. Winans v. State, 114 Tex.Cr.R. 182, 24 S.W.2d 421, and Huebsch v. State, 94 Tex.Cr.R. 461, 251 S.W. 1079, do use the words “then, at the very time” and “immediate” to describe when the intent was to be carried out. The real import of those decisions was to connect the assaultive action with an intent to rape. To the extent that this was not their import they are overruled.
Other cases affirmed by this Court indicate that it is unnecessary to intend to carry out the felonious design immediately at the beginning of the assault. See Shelton v. State, 150 Tex.Cr.R. 368, 200 S.W.2d 1004; Fowler v. State, 66 Tex.Cr.R. 500, 148 S.W. 576; Rogers v. State, 65 Tex.Cr.R. 105, 143 S.W. 631.
. For a general treatment of this and similar doctrines in Texas see Steele, The Doctrine of Multiple Prosecution in Texas, 22 S.W.L.J. 567 (1968).
. House v. State, 9 Tex.Cr.R. 567 (Tex.Ct.App.1880); Robertson v. State, 30 Tex.App. 498, 17 S.W. 1068, 1070 (1892).
. Adams v. State, 215 S.W.2d 327 (Tex.Cr.App.1949); Selby v. State, 103 Tex.Cr.R. 499, 281 S.W. 561 (1928); Robat v. State, 91 Tex.Cr.R. 468, 239 S.W. 966 (1922); Cotton v. State, 52 Tex.Cr.R. 55, 105 S.W. 185 (1907).
. Adams v. State, supra note 2; Winans v. State, 114 Tex.Cr.R. 182, 24 S.W.2d 421 (1929); Selby v. State, supra note 2; Robat v. State, supra note 2; Cotton v. State, supra note 2.
. Willis v. State, 473 S.W.2d 200, 202 (Tex.Cr.App.1971); Maynard v. State, 154 Tex.Cr.R. 594, 228 S.W.2d 185, 187 (1950); Bell v. State, 135 Tex.Cr.R. 651, 122 S.W.2d 630 (1938); Munoz v. State, 132 Tex.Cr.R. 218, 104 S.W.2d 25 (1937); Bartlett v. State, 117 Tex.Cr.R. 468, 38 S.W.2d 103, 108 (1931); Williams v. State, 106 Tex.Cr.R. 183, 291 S.W. 893 (1927); Grant v. State, 105 Tex.Cr.R. 193, 287 S.W. 254 (1926); Vinsen v. State, 102 Tex.Cr.R. 235, 277 S.W. 644 (1925); Stoker v. State, 93 Tex.Cr.R. 24, 245 S.W. 444 (1922).
. Cromeans v. State, 59 Tex.Cr.R. 611, 129 S.W. 1129 (1910); Griffin v. State, 151 Tex.Cr.R. 185, 206 S.W.2d 259 (1947).
. Huebsch v. State, 94 Tex.Cr.R. 461, 251 S.W. 1079, 1081 (1923).
. Bell v. State, supra note 4.
|
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Holmes Marcy DAVENPORT, Appellant, v. The STATE of Texas, Appellee.
No. 45045.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Donald D. Koons, Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the possession of heroin. The jury assessed the punishment at eight years.
The sufficiency of the evidence is challenged.
P. M. DeHoyas, at the time of the offense a detective in the narcotics section of the Dallas Police Department, testified that he secured a search warrant for 2136 Love-dale in Dallas on April 18, 1969. At about 2:15 p.m., he and other officers executed the warrant. He and Officer Ball went to the side door. Other officers went to the front door and announced that they were officers and had a search warrant. Officer DeHoyas saw through the glass door a man with a gun in his belt (later identified as Johnny Ralph Dupree) running toward him. Officers DeHoyas and Ball entered the residence, disarmed, searched and handcuffed Dupree and placed him on the couch. The front door was then unlocked and the other officers entered. The appellant on a cot in the front room was “completely out on drugs.” The officers “half way aroused him,” inquired if he lived there and, “He said he and his old lady, I believe were the words, his exact words, lived there.” They then searched the appellant, handcuffed him and placed him on the couch with Dupree. Officer DeHoyas further testified that the appellant had “numerous needle marks, old and new” on his arm.
Dorothy Manson was found at the kitchen table talking on the telephone. She, too, was searched, handcuffed and placed on the same couch with the two men.
Officers DeHoyas and Ball then searched the remainder of the house. In one of the dresser drawers in the bedroom the officers found a small brown prescription vial containing a thick, clear liquid. They found four disposable hypodermic syringes and needles in a suitcase. Officer DeHoyas further testified that he found a black suitcase that contained burglary tools in a closet.
While the officers were at the house, Fred Allen Marsh came to the front door, was admitted and searched. The search revealed a brown prescription vial containing several white tablets. Marsh was handcuffed and placed at the kitchen table.
When the front or living room was searched the officers found heroin inside a crumpled up cigarette package underneath the couch.
Officer Ball testified substantially to the same facts and circumstances as Officer DeHoyas.
Officer Wiley Flynn, a narcotics officer with the Department of Public Safety, testified that he had awakened the appellant and was of the opinion that appellant was under the influence of a drug. He remained in the living room watching the prisoners as the house was searched and was present when the heroin was found.
Lieutenant J. C. Day of the Dallas Police Department testified regarding his role in transporting the evidence to the criminal investigation laboratory. By consent of the State and appellant, oral stipulations were entered into before the jury that the evidence was received by a chemist at the criminal investigation laboratory from Lieutenant Day and another, not altered in any way, and was turned over to Dr. Morton F. Mason for analysis. Dr. Mason, director of the laboratory, testified that the substance in the crumpled cigarette package contained heroin and morphine. He further testified that one of the tablets found on Marsh was analyzed and found to contain methadone.
Peggy Pauline Smith, called by the appellant, testified that she rented the residence searched and had been taken to the beauty shop by Marsh on the day in question. She testified that appellant occasionally stayed at her apartment and slept on a rollaway bed in the living room. The night before the search she, Dorothy Manson, Marsh and appellant had been out drinking. The appellant was still asleep when she left for the beauty shop. Johnny Dupree, her former husband, had come in just before she left.
The appellant testified that he had no knowledge of the heroin except that Dorothy Manson had told him that Dupree had thrown it under the couch. He said he was never put on the couch and was in another part of the house when the heroin was found.
Complaint is made that the trial court erred in denying his motion for continuance upon learning that his subpoena for Dorothy Manson to appear as his witness was returned unexecuted. The record shows the subpoena to have been issued on September 3, 1970, to be served on Dorothy Manson at her place of employment. It was returned the same day noting that she was no longer employed at the designated place and her whereabouts were unknown. The trial court denied the motion “without prejudice to reurging.” In his motion for a new trial the appellant did not reurge the motion for continuance and show what the testimony of the absent witness would have been which is a prerequisite to raising this as a ground of error on appeal. Baker v. State, Tex.Cr.App., 467 S.W.2d 428.
Appellant contends that error was committed when the court admitted the heroin into evidence. He now claims that it was obtained as the result of an illegal search warrant. Since the appellant did not object when the heroin was introduced and did not show that he had no opportunity to object at the time of introduction, the ground of error is not before this Court for review. See, e.g. Brown v. State, Tex.Cr.App., 460 S.W.2d 925; McLaughlin v. State, Tex.Cr.App., 426 S.W.2d 244; 5 Tex.Jur.2d, Section 39, page 61.
Next, the appellant contends that error was committed when the jury was made aware of extraneous offenses when Officer DeHoyas told of finding the burglary tools. An objection was sustained and the jury instructed to disregard the testimony. A motion for a mistrial was overruled. If there was any error in the testimony it was made harmless by the trial court’s instruction to disregard. See generally 5 Tex.Jur.2d, Appeal and Error, Section 447, page 711. Appellant further complains of the admission of evidence that Marsh had methadone in his possession. The rule against admitting evidence of extraneous offenses generally refers to other offenses by the defendant and not by another. See generally 1 Branch’s Ann.P. C.2d, Section 188, page 200. The same rationale of irrelevance to the crime for which the defendant is charged, however, would seem to apply where the extraneous offense is committed by another and somehow implies a “guilt by association.” Where, however, as in the present case the other offense is part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper. Mayes v. State, Tex.Cr.App., 472 S.W.2d 528. The contentions concerning what was found during the search are overruled.
The appellant also contends that the oral stipulation showing a portion of the chain of custody of the heroin was insufficient because not reduced to writing. Article 1.15, Vernon’s Ann.C.C.P., as applicable at the time of this trial made oral stipulations insufficient to support a conviction “except upon the verdict of a jury.” Hence, the statute had no application to a trial before a jury. Further, upon direct examination Officer DeHoyas testified without objection that he found some heroin in the living room portion of the residence inside a crumpled up cigarette package. This contention of error is overruled.
Complaint is made that the evidence is insufficient. He urges that since this is a circumstantial evidence case the proven circumstances must exclude every other reasonable hypothesis except that of guilt and that the proven circumstances in the present case do not exclude the reasonable hypothesis that another, and not the appellant, possessed the heroin and threw it under the couch. He relies upon Kinkle v. State, Tex.Cr.App., 474 S.W.2d 704; Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56; and Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745.
The mere presence of the accused in the residence where the heroin was found does not of itself justify an inference of possession. See, e. g., Carr v. State, Tex.Cr.App., 480 S.W.2d 678 (1972); Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713. In the present case no heroin was found on appellant’s person. Cf. Alaniz v. State, Tex.Cr.App., 458 S.W.2d 813.
We must determine if the evidence links the appellant to the narcotics. Carr v. State, supra; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. There is some incriminating evidence of appellant’s control of the residence from his statement that he and “his old lady” lived there. See Boyd v. State, 118 Tex.Cr.R. 532, 39 S.W.2d 55. He was under the influence of a drug, had recent needle marks on his arm and was present in the room where the heroin was found. Further, all others, i. e. Dupree and Dorothy Manson, were searched and handcuffed before being brought into this room and placed on the couch. No furtive gestures were made by any of these persons. For the above reasons we hold the circumstantial evidence sufficient for a jury to conclude that appellant knowingly possessed the heroin either alone or in conjunction with others and to exclude every other reasonable hypothesis except that of appellant’s guilt.
No reversible error is shown. The judgment is affirmed.
. The statute was amended in 1971 to allow oral stipulations in a trial before the court.
. The trial court charged the jury on the law dence. : principals, knowledge and circumstantial evi-
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Ex parte Arturo ROCHA.
No. 44393.
Court of Criminal Appeals of Texas.
June 28, 1972.
Rehearing Denied July 28, 1972.
John W. Clark, Edinburg (Court appointed), for appellant.
Oscar B. Mclnnis, Dist. Atty., and Thomas P. Beery, Asst. Dist. Atty., Edin-burg, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., and in accordance with Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, in which the petitioner seeks his release from confinement in the Texas Department of Corrections. Petitioner was convicted for the offense of rape in Cause No. 9683 in the 92nd District Court of Hidalgo County on October 5, 1964, and punishment was assessed at life imprisonment. Review of that judgment by appeal was not sought.
In his application for the writ, petitioner alleges that his conviction is invalid “because applicant’s court appointed counsel refused to comply with applicant’s request that a timely notice of appeal be entered with the record at the time of sentencing to preserve applicant’s right to receive a direct review of his conviction by the Texas Court of Criminal Appeals.”
A hearing was held on petitioner’s application before the Hon. Magnus F. Smith, Judge Presiding, 92nd District Court of Hidalgo County. The record of such hearing reflects that petitioner was seventeen years old at the time of his trial, was indigent, and was represented by two court-appointed attorneys, one of whom is now deceased. Petitioner and the remaining attorney were the sole witnesses testifying at the hearing. Petitioner testified that he requested that the attorney who is now deceased appeal his case and was told “. . .to wait three years to appeal, because at the time of trial it was too hot. I just agreed to appeal my case when the time expired. And after three years I wrote a letter.” The record contains two letters written by petitioner to the attorney and the attorney’s responses thereto. In none of these letters is an appeal mentioned. In one of these letters, petitioner requested that an investigation be made as to why a second party who had been involved in the crime had received a sentence of only five years. In the other letter, petitioner requested the attorney to guarantee favorable action from the Board of Pardons and Paroles. The remaining attorney did not know anything concerning petitioner’s allegation.
At the conclusion of the hearing, the trial court found that: (1) petitioner was indigent at the time of his trial; (2) he was capably represented by two court-appointed attorneys; (3) these attorneys discussed the question of appeal with both petitioner and his parents; (4) no one told petitioner that he would have to wait three years in order to appeal; (5) a statement of facts was available but was not requested; (6) no statement of facts is available now; (7) the matter of requesting a statement of facts in forma pauperis was explained to appellant’s parents; and (8) that appellant acted upon the recommendation of his parents and did not request a statement of facts. Accordingly, the trial court denied relief.
In a habeas corpus proceeding, a petitioner bears the burden of overcoming the presumption of regularity of the judgment by showing that there is substantial evidence to the contrary. Ex parte Young, Tex.Cr.App., 479 S.W.2d 45. See also, Ex parte Cross, Tex.Cr.App., 427 S.W.2d 64; Ex parte Morgan, Tex.Cr.App., 412 S.W.2d 657; and, as we recently stated in Ex parte Young, Tex.Cr.App., 479 S.W.2d 45:
“While we do not desire to make an absolute rule concerning habeas corpus petitioners who do not assert their legal remedies promptly, we nevertheless feel that in some instances, a petitioner’s delay in seeking relief can prejudice the credibility of his claim. Compare Ex parte Thorbus, 455 S.W.2d 756 (Tex.Cr.App.1970).”
In the instant case, there is no question that petitioner and his parents knew that he had a right to appeal the conviction and that they were aware that a statement of facts could be obtained. Petitioner’s only excuse for not pursuing these remedies immediately after trial is that an attorney advised him to wait three years. That attorney is now dead. Approximately eight years have passed. Petitioner has filed two previous applications for habeas corpus, in neither alleging that he was denied a right to appeal. Only petitioner’s testimony supports such claim. Our holding in Ex parte Young, Tex.Cr.App., 479 S.W.2d 45, is applicable:
“We cannot hold the eleven-year-old conviction void solely upon the testimony of petitioner, motivated by his self-interest and the prospect of gaining his freedom. We will not overturn a presumably valid conviction at this late date merely because the State cannot rebut petitioner’s testimony.” 479 S.W.2d at 47.
In the instant case, we hold that petitioner has not met his burden of showing that he was denied an appeal.
The relief sought is denied. |
sw2d_482/html/0171-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Robert Earl ALDRIDGE, Appellant, v. The STATE of Texas, Appellee.
No. 44188.
Court of Criminal Appeals of Texas.
June 21, 1972.
Second Rehearing Denied July 28, 1972.
Sam Houston Clinton, Jr., Clinton & Richards, Austin, for appellant.
Robert O. Smith, Dist. Atty., Lawrence Wells, Philip A. Nelson, Jr., and Phoebe Lester, Asst. Dist. Attys., Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ON APPELLANT’S MOTION FOR REHEARING
DALLY, Commissioner.
Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.
This is an appeal from a conviction for possession of marihuana. The trial was before the court upon a plea of not guilty; punishment was assessed at ten years imprisonment.
At approximately 4:00 p. m. on April 28, 1970, plainclothes Officer Simpson of the Austin Police Department had stopped his unmarked police vehicle for a traffic signal at the intersection of Barton Springs Road and Lamar Boulevard; Simpson had been traveling eastward on Barton Springs Road. While at the intersection Officer Simpson observed appellant and four others in a 1962 black and white Ford in the southbound lane of Lamar, stopped at a red light. One of the passengers in the Ford, whom Simpson recognized, was hanging partially out of the window. He appeared to be shouting at a woman who was in an automobile in the adjacent lane; Simpson could not clearly hear what was being said but testified that his impression at the scene was that the youth was yelling obscenities.
After appellant’s vehicle had proceeded through the intersection, Officer Simpson turned south onto Lamar and followed, “The intention was to find out whether this was a carload of drunk boys; the way they were acting at the red light.” Simpson saw that the Ford was speeding. He pulled to within a few car lengths of it, and clocked its speed at forty-four miles per hour in a thirty-five miles per hour zone. The officer testified that he did not stop the automobile at that time because the vehicle he was in was unmarked and he had neither a red light on top nor a hand-operated light inside with him. He testified that he did not accelerate to a position beside the Ford and try to pull the appellant over because the traffic was such that he believed it would have been hazardous to do so.
Simpson followed appellant’s vehicle until they pulled into the parking lot at the Gibson’s Store on Ben White Boulevard; Simpson turned on the street beside the store, stopped at another entrance to the parking area from which he could see the entire lot. He lost sight of the Ford and called other uniformed units for assistance in locating it. As Officer Simpson proceeded to park on Manchaca Road to meet the police vehicle responding to his call, he again saw appellant’s automobile, this time proceeding eastward on Ben White. Simpson notified the other patrol car..
Pursuant to the radio dispatch, Officer Ferris stopped appellant on the “east frontage road — just north of [Interstate 35]” and arrested him for the speeding offense. Appellant got out of his car and accompanied Ferris to the police patrol car. The other occupants of appellant’s vehicle remained in the car. Officer Love then arrived and was asked to check the identification of the other occupants of the ’62 Ford. Shortly after Officer Love had appeared, Officer Simpson arrived.
Appellant’s arrest is only challenged insofar as appellant alleges that it was “a mere pretext to justify the officers in ‘checking out’ occupants of the car.” We reject this contention and proceed to consider the remainder of appellant’s argument under his first ground of error wherein he urges “The trial court erred in denying Motion to Suppress Evidence of fruits of search of automobile driven by Appellant and in admitting in evidence State’s Exhibit 2,” a paper sack found in the car which contained marihuana. At the hearing conducted upon appellant’s motion to suppress, Officer Love testified that he was on patrol duty in South Austin the afternoon of the arrest. Upon hearing Officer Ferris indicate on the police radio that he had stopped appellant’s vehicle on the frontage road, that there were several persons in the automobile, and that Officer Ferris was leaving his own unit to approach appellant’s vehicle, Officer Love went to the scene of the arrest. He testified that it is customary “for another unit to check by when there are four or five subjects in the car.” When Love arrived he observed Ferris, the arresting officer, in his police car with appellant. Upon approaching Ferris, Love was askpd to go to appellant’s automobile in order to identify the other occupants. As Love went to appellant’s Ford, leaned down and glanced inside, he smelled the odor of marihuana and saw what appeared to be a large knife on the floor in front of the driver’s seat. Believing the object to be a prohibited weapon, Love opened the door, reached in and picked it up. Next to it, and visible as he retrieved the “knife,” was a paper sack, which he also picked up because he thought it might contain more prohibited weapons. The sack contained fourteen packets of marihuana and was later shown to have had the fingerprints of one of the passengers, Longoria, on it. It was later learned that the knife was, in fact, a “shingle-saw” with a wood handle approximately seven inches long and a blade that folded like a pocket knife.
In Taylor v. State, 421 S.W.2d 403, 407 (Tex.Crim.App.1967), this court said:
“Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence. (citations omitted.) Under these circumstances, neither the arrest nor the search is tied to the traffic charge, but rather to the violation later discovered. Brown v. United States, 125 U.S.App.D. C. 43, 365 F.2d 976; United States v. One Cadillac Hardtop, D.C., 224 F.Supp. 210. This is true even if no specific statement of fact of the second arrest is made. Brown v. United States, supra.”
Officer Love, having smelled the smoke of marihuana, having seen what appeared to be a knife with a blade more than 5(4 inches in length in plain view, and, while retrieving the knife, having further observed a sack which might contain other prohibited weapons, was justified in searching the automobile for marihuana and prohibited weapons. The seizure of the marihuana under the facts presented was not unlawful. Appellant’s first ground of error is overruled. Taylor v. State, supra; Corbitt v. State, 445 S.W.2d 184 (Tex.Crim.App.1969); Grego v. State, 456 S.W.2d 123 (Tex.Crim.App.1970) and Forderson v. State, 467 S.W.2d 476 (Tex.Crim.App.1971).
Appellant next challenges the sufficiency of the evidence to show appellant’s guilt. Relying upon Culmore v. State, 447 S.W.2d 915 (Tex.Crim.App.1969) and Brock v. State, 285 S.W.2d 745 (Tex.Crim.App.1956), appellant urges that proof offered by the State “does not exclude every other reasonable hypothesis except guilt of appellant.” We do not agree. The marihuana was found in the automobile that belonged to appellant’s mother; the appellant was the driver of the automobile at the time of the arrest; and the sack of marihuana was found under the front part of the driver’s seat. Further, when Love approached the automobile he “could smell smoke of marihuana.” No one was seen smoking marihuana; it is reasonable, then, to conclude the smoke was present in the automobile prior to appellant’s having left it to get into the police vehicle. In Shortnacy v. State, 474 S.W.2d 713 (Tex.Crim.App.1972), this court quoted with approval from Carr v. State, 8 Ariz.App. 300, 445 P.2d 857, wherein it was said:
“The crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance. Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962). Although possession may be shown by direct or circumstantial evidence, the evidence must link the defendant to the narcotics in such a manner and to such an extent that a reasonable inference may arise that the defendant knew of the narcotics’ existence and of its whereabouts. Carroll v. State, supra.”
Appellant testified in his own behalf and denied having any knowledge that there was marihuana in the automobile or that it had been smoked there. He testified that Longoria had been driving the car all day and that he, appellant, had been driving another car. Appellant stated that he had gotten in his mother’s car, the 1962 Ford, a short time before the arrest for the purpose of taking passengers Longoria and Hamilton “to Gibson’s Discount Center, and they said a guy was supposed to pick them up there . . . that he was going to take them someplace, I don’t know where they were going.” He said the person to be met was not at Gibson’s and that he was taking Longoria and Hamilton to the intersection of Riverside Drive and Interstate Highway 35 when he was arrested.
The defense testimony offered by appellant was before the trial court for its consideration. The court, as the trier of facts, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of a witness’s testimony. Nalls v. State, 476 S.W.2d 297 (Tex.Crim.App.1972); Aguilar v. State, 471 S.W.2d 58 (Tex.Crim.App.1971); Maddox v. State, 466 S.W.2d 755 (Tex.Crim.App.1971) and Ellis v. State, 456 S.W.2d 398 (Tex.Crim.App.1970).
We conclude that the State met its burden and that the evidence is sufficient to show at least joint possession of the marihuana by the appellant. See Davila v. State, 169 Tex.Cr.R. 502, 335 S.W.2d 610 (1960); Ochoa v. State, 444 S.W.2d 763 (Tex.Crim.App.1969) and 30A Tex.Digest, Poisons, Key Numbers 4 and 9. This ground of error is overruled.
There being no reversible error, the judgment is affirmed.
Opinion approved by the Court.
. Article 483, Vernon’s Ann.P.O. provides that it is unlawful for “[a]ny person ftol carry on or about his person ... a knife with a blade over five and one half (5½) inches in length
. Officer Love first discovered the instrument had “a sawtype blade” when he opened it at the police station. The court, observing that State’s Exhibit No. 1 “folds like a knife, but has a saw blade,” allowed it to be described as either “a knife or a saw.”
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sw2d_482/html/0175-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Ex parte Jimmy Placido CHAVEZ.
No. 45541.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 19, 1972.
Will Gray, Houston, J. R. Hollingsworth, Amarillo, for appellant.
Tom Curtis, Dist. Atty., John J. Wheir, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is a post conviction habeas corpus proceeding brought under Article 11.07, Vernon’s Ann.C.C.P. See Ex Parte Young, Tex.Cr.App., 418 S.W.2d 824.
Petitioner contends that the trial court, in accepting his guilty plea, failed to comply with the mandatory requirements of Art. 501, C.C.P.
The convicting court deemed that an evi-dentiary hearing was not necessary and entered findings of fact and conclusions of law based on the petition and records on file with the court. All findings and conclusions were unfavorable to petitioner’s allegations. The transcription of the court reporter’s notes is before us from the original trial in the appellate record in Cause No. 39,677.
The record reflects that on December 13, 1965, the petitioner entered a plea of guilty in Cause No. 12,678 charging him in the 47th District Court of Potter County with the offense of rape, and penalty was assessed by the jury at death. The conviction was affirmed by this Court, in Cause No. 39,677, Chavez v. State, 408 S.W.2d 714.
The transcription of the court reporter’s notes reflects the following admonishment as being given after petitioner entered a plea of guilty to the indictment.
“The Court: Come up here in front of me with your counsel; I have some explanation I need to make to you. Now, Jimmy, you have heard the reading of this indictment. I know Mr. Howard has advised you of your legal rights, but before I permit you to plead guilty I must assure myself that you understand the nature of your plea and the consequences of it.
“Now, you know that the punishment provided for the offense with which you are charged is confinement in the State Penitentiary for not less than five years, or by life imprisonment, or by death in the electric chair, and that if you plead guilty you admit your guilt of all of the elements of this offense, and leave to the jury simply to determine what your punishment will be. Do you understand that?
“Defendant: Yes, sir.
“The Court: Have you ever been confined in any institution for the treatment of mental diseases — ever been in any insane asylum?
“A. No, sir.
“Q. You do not contend that you are insane at this time, nor that you were insane at the time of the commission of this offense?
“A. No, sir.
“Q. And as far as understanding what you are doing at this time, you do understand what you are doing at this time— you know what you are doing?
“A. Yes, sir.
“Q. How far did you go in school?
“A. To the tenth grade.
“Q. What school?
“A. Santa Fe.
“Q. Now, you understand the English language — you understand what is being done here and what is said?
“A. Yes, sir.
“The Court: I will permit you to plead guilty if that is your desire. I assume you have considered this fully with your counsel.
“A. Yes, sir.
“Q. Now, do you persist in pleading guilty after having the consequences of your plea explained to you ?
“A. Yes, sir.
“Q. You still want to plead guilty?
“A. Yes, sir.
“Q. The .plea of guilty will be entered as the plea of the defendant in this case. You may be seated.”
Article SOI, C.C.P. (1925), provided: “If the defendant pleads guilty, or enters a plea of nolo contendere he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”
In May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606, it was written, “. on account of the importance of the question we call attention of the trial judges to Art. 501, C.C.P. (statute quoted). It has been held that the foregoing provision of the statute is mandatory, and that the three things required must be done as a condition precedent to the validity of the plea of guilty, and that such question may be raised after conviction.”
In the instant case, the transcription of the court reporter’s notes reflects that the court did not determine whether any persuasion or delusive hope of pardon prompted appellant to confess his guilt.
Can this determination be made from events which subsequently transpire in the trial, or by a recital in the judgment or from pleadings at the habeas corpus hearing? We think not.
The statute plainly provided that no such plea shall be received unless it plainly appears that these conditions have been met. This Court has long held in interpreting the statute that the provisions of the statute are mandatory and must be complied with as a condition precedent to the validity of a plea of guilty, (emphasis supplied) Ex parte Battenfield, Tex.Cr.App., 466 S.W.2d 569; Rogers v. State, Tex.Cr.App., 479 S.W.2d 42; Miller v. State, Tex.Cr.App., 424 S.W.2d 430; Braggs v. State, 169 Tex.Cr.R. 405, 334 S.W.2d 793; Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779; May v. State, supra.
It is clear that the admonishment required must be manifest of record and that the admonishment cannot be supplied by inference, intendment or presumption. See Article 26.13, V.A.C.C.P., note four and cases cited therein.
Under the holdings of this Court, it is thus apparent that the admonishment required by Art. 26.13, V.A.C.C.P., (Art. 501, C.C.P., at the time of petitioner’s trial) must be complied with as a condition precedent to the validity of the plea of guilty (or nolo contendere) and that the admonishment must be manifest of record.
We next come to the question of whether the failure to properly admonish appellant before accepting his plea of guilty can be raised for the first time by post conviction habeas corpus. In May v. State, supra, Presiding Judge Hawkins called it to the attention of trial judges “that such question may be raised after conviction.” Cases which have followed May v. State, supra, continued to reaffirm this position. Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779; Miller v. State, supra; Ex parte Battenfield, supra. In Ex parte Battenfield, petitioner’s post conviction habeas corpus was granted by this Court, where the court reporter’s notes made it clear that there had not been a compliance with Art. 26.13, V.A.C.C.P., in accepting petitioner’s plea of guilty to a burglary charge.
The transcription of the court reporter’s notes, in the instant case, fails to reflect that the trial court made a determination of whether any persuasion or delusive hope of pardon prompted petitioner to confess his guilt before accepting the plea of guilty. The mandatory terms of Art. 501, C.C.P., and the cases construing it and its successor, Art. 26.13, V.A.C.C.P., compel us to hold that petitioner is entitled to the relief he seeks.
We sound the alarm to trial judges, first voiced by Judge Hawkins, in May v. State, supra, that the requirements of Art. 26.13, V.A.C.C.P., must be met as a condition precedent to the validity of a plea of guilty (or nolo contendere), compliance must be manifest of record and such question may be raised after conviction.
The petitioner is ordered released from further confinement by virtue of his conviction in Cause No. 12,678 and surrendered to the custody of the Sheriff of Potter County to answer the indictment charging him with the offense of rape.
It is so ordered.
Opinion approved by the Court.
. Art. 26.13, V.A.C.C.P., (Acts 1965, 59th Leg. Vol. 2, p. 317, Ch. 722, eff. Jan. 1, 1966) is identical to Art. 501, O.C.P., as amended in 1959.
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sw2d_482/html/0177-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
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Rufus LEWIS, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 44998.
Court of Criminal Appeals of Texas.
June 28, 1972.
Warren Weir, San Antonio, for appellant.
Ted Butler, Dist.,Atty., Gordon V. Armstrong, Bill Harris and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This is an appeal from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the court at ten years.
The record reflects that on May 19, 1970, Officer Jerry Rangel, who was at that time assigned to undercover investigation for the narcotics division of the San Antonio Police Department, went to the Cool Breeze Pool Hall in that city and learned that appellant was in possession of heroin. Officer Rangel then approached appellant and informed him that he had been told that appellant had “some good stuff”. Appellant questioned the officer as to how much he wanted, and Officer Ran-gel replied that he wanted “one cap”. Appellant gave the officer a capsule of heroin in exchange for $3.50.
Initially, appellant contends that the evidence is insufficient to support a conviction for the sale of a narcotic drug. He argues that at no time during the conversation between appellant and Officer Rangel was price discussed or heroin actually mentioned. He argues that such evidence would be necessary to prove that a sale occurred. We do not agree.
Article 725b, Sec. 1(10) Vernon’s Ann.P.C., defines “sale” to include: “barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.” Thus, even accepting appellant’s interpretation of the transaction, a sale occurred when appellant gave the capsule of heroin to the officer. The evidence is sufficient to support the conviction.
Finally, appellant complains that the “verdict of the jury was so ambiguous as to be insufficient to support the conviction” and that “[t]here was a fatal variance between the verdict of guilty and the entry of judgment by the court.”
The record reflects that on May 19, 1970, appellant was indicted for both unlawful possession of heroin and unlawful sale of heroin. The state elected to proceed on the “sale” count and waived the possession count. The verdict of the jury states:
“We, the Jury, find the defendant, Rufus Lewis, Jr., guilty of the offense of unlawfully selling a narcotic drug, to-wit: Heroin, as charged in the indictment.”
In reading this verdict, the trial judge stated:
“The verdict of the jury is, ‘We, the jury, find the Defendant, Rufus Lewis, Jr., guilty of the offense of unlawfully selling a narcotic drug, to-wit, heroin, as charged in the bill of indictment as amended.”
The judgment recites the jury’s verdict in the same words as does the jury’s verdict form.
A jury verdict will be held to be sufficient if its meaning cán be reasonably ascertained from the words used. Stewart v. State, Tex.Cr.App., 422 S.W.2d 928; Hensley v. State, 153 Tex.Cr.R. 616, 224 S.W.2d 245; Burton v. Anderson, 1 Tex. 93. When the verdict refers to the indictment, both the indictment and the charge must be read in order to determine the intent of the jury. Salas v. State, Tex.Cr.App., 474 S.W.2d 228; Pennington v. State, Tex.Cr.App., 364 S.W.2d 376; Caballero v. State, 171 Tex.Cr.R. 133, 346 S.W.2d 343; McGee v. State, 39 Tex.Cr.R. 190, 45 S.W. 709.
In the instant case, the verdict of the jury incorporates the indictment by reference. After the state elected not to proceed on the possession count which was alleged in the indictment, that indictment charged appellant with the unlawful sale of heroin. Under the above cited authorities, we have no difficulty in ascertaining that the jury intended to find appellant guilty of the offense of unlawful sale of heroin.
Nor do we perceive a fatal variance between the verdict, as read by the court, and the entry of judgment. The court’s oral reference to the “indictment as amended” simply refers to the state’s abandonment of the possession count alleged in the indictment. No error is shown.
The judgment is affirmed. |
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