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tex/10009454.json

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+"{\"id\": \"10009454\", \"name\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees\", \"name_abbreviation\": \"Urquhart v. Antrum\", \"decision_date\": \"1988-12-22\", \"docket_number\": \"No. A14-88-214-CV\", \"first_page\": \"595\", \"last_page\": \"598\", \"citations\": \"776 S.W.2d 595\", \"volume\": \"776\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:12:31.437839+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.\", \"parties\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees.\", \"head_matter\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees.\\nNo. A14-88-214-CV.\\nCourt of Appeals of Texas, Houston (14th Dist.).\\nDec. 22, 1988.\\nRandy L. Fairless, Houston, for appellant.\\nJeffery L. Scott, Tom A. Dickens, Houston, for appellees.\\nBefore J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.\", \"word_count\": \"1548\", \"char_count\": \"9628\", \"text\": \"OPINION\\nMURPHY, Justice.\\nThis appeal follows a suit for personal injuries. Curtis Elijah Antrum was driving a taxi for the Yellow Cab Company in the parking lot of a Houston strip center when his cab struck and injured David Urquhart, a pedestrian. David suffered a broken leg in the accident. Individually and on his son David's behalf, appellant Greg Urquhart sued Antrum and Yellow Cab, the appel-lees. A jury found David ninety-five percent negligent. We conclude the trial court erroneously admitted Antrum's hearsay statements contained in the police report.\\nIn his first point of error, the appellant maintains the trial court erred by permitting the investigating police officer to testify concerning the cause of the accident. Appellant has not referred us to specific portions of the record in compliance with Tex.R.App.P. 74(d) & (f). As best we can determine from his brief and oral argument, he complains of portions of the officer's deposition testimony in which he opined that the cab driver was not the direct cause of the accident but that David's failing to look was. Appellant did not object to the two questions appellants posed or the officer's answers. In the absence of a proper, timely objection, appellant has waived any error. Tex.R.App.P. 52(a); see Tex.R.Civ.Evid). 103(a)(1); Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.1986) (opinion on rehearing); Wilfin, Inc. v. Williams, 615 S.W.2d 242, 244 (Tex.Civ. App.\\u2014Dallas 1981, writ ref'd n.r.e.). Although appellant made a preliminary objection to the officer's qualifications this could not preserve error in admitting the officer's statements to which appellant did not object. In re Dahl, 590 S.W.2d 191, 199 (Tex.Civ.App.\\u2014Amarillo 1979, writ ref'd n.r.e.). We overrule the first point of error.\\nIn his second point of error, the appellant contends the trial court erred because it overruled his objections to the investigating police officer's testifying, by deposition, to statements recorded in his police report at the scene of the accident. The cab driver, Curtis Antrum, and a witness, Frances Ward, made the statements. Neither testified at trial. The trial court withdrew its original ruling sustaining appellant's objections to Ward's statement and permitted the officer's deposition testimony in which he referred to both her statement and Ant-rum's. The record does not reflect the court's reasons for its rulings. We conclude the trial court committed reversible error when it overruled appellant's hearsay objections to both statements.\\nUnless Tex.R.Civ.Evid. 801(e) defines the statement as non-hearsay, or unless the law provides an exception, an out-of-court statement offered for its truth is inadmissible. Tex.R.Civ.Evid. 802. By the express provisions of Tex.R.Civ.Evid. 801(e)(3) and Tex.R.Civ.P. 207, the officer's deposition testimony is non-hearsay and Tex.R.Civ. Evid. 803(6) creates an exception for those contents of the report which the officer made on personal knowledge. But the statements by Antrum and Ward, which the officer recorded in his report, are a different matter.\\nAppellant objects first to the following statement by Antrum: \\\"I was driving west in the parking lot and the kid ran out from behind the van and slipped and I swerved and caught his leg.\\\" Because Antrum did not testify at the trial, none of the exceptions in Rule 801(e)(1) apply. Because the statement was offered by, rather than against, the appellees, it does not constitute an admission by a party opponent under Rule 801(e)(2). See 1A C. McCormick & R. Ray, Texas Law of Evidence Civil & CRIMINAL \\u00a7 786 at 13 (Texas Practice Ed. 1980 & Supp.1986) [hereinafter \\\"Texas Law of Evidence\\\"]. And since Antrum did not make his statement at a deposition, Rule 801(e)(3) does not apply. Accordingly, the statement cannot escape hearsay status under Rule 801 and is hearsay, an out of court statement offered for its truth. Tex.R.Civ.Evid. 801(a)-(d); see Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982).\\nAs hearsay, Antrum's statement would be properly admissible only under an exception to the hearsay rule. Tex.R.Civ.Evid. 802. As hearsay within a hearsay excep tion, Antrum s statement must independently satisfy an exception to the hearsay rule. Tex.R.Civ.Evid. 805. All hearsay exceptions require a showing of their trustworthiness. Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex.1986).\\nThe appellees maintain the statement qualifies as an excited utterance under Rule 803(2). We disagree. Rule 803(2) creates a hearsay exception for \\\"[a] statement describing or explaining an event or condition made while the declarant was under the stress of excitement caused by the event or condition.\\\" Rule 803(2) appears to codify Texas common law which has required a showing that the declarant made the \\\"res gestae\\\" statement spontaneously, without reflection, in response to the exciting event and, therefore, within a close time proximity to the exciting event. E.g., Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984); Truck Ins. Exch. v. Michling, 364 S.W.2d 172, 174 (Tex.1963); 1A Texas Law of Evidence \\u00a7 917.\\nWhile the record shows that the officer arrived at the scene within six minutes of the accident, there is no showing that Ant-rum gave his statement at that time. Indeed, the officer testified to the many tasks he must perform at the scene of an accident before interviewing persons at the scene. Thus, while no precise time period is too long or too short, 1A Texas Law of Evidence \\u00a7 917 at 161, it is not clear exactly how long Antrum waited before giving his statement to the investigating officer. The circumstances in this case show only that Antrum \\\"appear[ed] to be excited.\\\" There is no showing that his excitement was spontaneous or in response to the accident. Nor is there a showing that Antrum did not make the statement in response to the investigating officer's questions, a factor which mitigates against spontaneity. See 1A Texas Law of Evidence \\u00a7 914 at 155. Rather, the record suggests that Ant-rum had time to reflect and gave his statement to the officer in order to shift blame for the accident. Compare Jones v. Hopper, 506 S.W.2d 768, 770 (Tex.Civ.App\\u2014Houston [14th Dist.] 1974, no writ) (inculpatory statement made within minutes of accident by injured defendant who did not testify at trial, held admissible as spontaneous utterance). If its decision to permit Antrum's statement rests on Rule 803(2), we conclude the trial court abused its discretion.\\nSimilarly, while Antrum's statement describes or explains the accident, there is no showing, under Tex.R.Civ.Evid. 803(1), that he made the statement while perceiving the accident or \\\"immediately thereafter.\\\" Since Rule 803(l)'s present sense impression exception requires an even closer time proximity than the excited utterance exception, we hold that Rule 803(1) does not provide an alternative basis for the hearsay reference to Antrum's statement. See 1A Texas Law of Evidence \\u00a7 916 at 33 (Supp.1986). Moreover, while the hearsay statement shows that Antrum admits hitting David, the overriding thrust of his statement is exculpatory because it tends to shift blame for the accident to David. Accordingly, Tex.R.Civ.Evid. 803(24), which creates an exception for statements against interest, does not apply to this case. Robinson, 711 S.W.2d at 621; Duncan v. Smith, 393 S.W.2d 798, 803 (Tex.1965).\\nAppellant also complains of the trial court's permitting the officer's hearsay reference to the following statement by the witness Ward: \\\"That the boy ran out from the store, ran in front of the cab, the kid did not look and ran out from behind the van.\\\" Although the appellees contend Ward's statement qualifies as an excited utterance under Rule 803(2), we further hold that the trial court erred by overruling appellant's hearsay objection to her statement. There is no showing that Ward was excited when she made the statement, or that she made the statement spontaneously, in response to the accident and within a close time proximity to the accident.\\nThe appellees contend that any error in permitting Antrum's and Ward's hearsay statements is harmless because the statements corroborate David's own responses under direct and cross examination. We cannot agree. David did concede that he looked to the right, but looked to the left, from whence the taxicab came, only as he was being hit. However, only Antrum's statement indicates that David \\\"slipped\\\" and only Antrum's statement indicates that he swerved to avoid hitting David. Moreover, while David's testimony is not without conflict, he never conceded that he ran, rather than walked, into the path of the oncoming taxi, as both Ward and Antrum maintained. We conclude the trial court erred when it permitted the reference to both hearsay statements because no hearsay exception made them admissible. We further hold that permitting Ant-rum's and Ward's statements amounted to such a denial of appellant's rights as was reasonably calculated to cause and did cause rendition of an improper judgment. Tex.R.App.P. 81(b)(2).\\nWe sustain appellant's second point of error. Accordingly, we reverse the judgment of the trial court and remand this cause for a new trial.\"}"

tex/10009828.json

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+"{\"id\": \"10009828\", \"name\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hernandez v. State\", \"decision_date\": \"1991-02-21\", \"docket_number\": \"No. 13-90-152-CR\", \"first_page\": \"858\", \"last_page\": \"860\", \"citations\": \"805 S.W.2d 858\", \"volume\": \"805\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:41:38.147648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NYE, C.J., and SEERDEN and HINOJOSA, JJ.\", \"parties\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee.\\nNo. 13-90-152-CR.\\nCourt of Appeals of Texas, Corpus Christi.\\nFeb. 21, 1991.\\nYolanda Jurado, Edinburg, for appellant.\\nRene Guerra, Theodore C. Hake, Dist. Attorney\\u2019s Office, Edinburg, for appellee.\\nBefore NYE, C.J., and SEERDEN and HINOJOSA, JJ.\", \"word_count\": \"1204\", \"char_count\": \"7344\", \"text\": \"OPINION\\nNYE, Chief Justice.\\nA jury found appellant, Fito Diaz Hernandez, guilty of voluntary manslaughter and assessed as punishment twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division, plus a $10,000.00 fine. By two points of error, appellant complains that the trial court erred in refusing to grant a mistrial, and that the jury considered the parole law in assessing punishment. We affirm the trial court's judgment.\\nThe State's evidence shows that on June 9, 1989, Officer Jaime Yasquez responded to a call relating to a woman screaming. Upon arrival, he saw appellant running through an alley in a \\\"crouched down manner.\\\" Police stopped the appellant. He told them that he had been involved in a fight at his residence. He pointed to the area where Officer Vasquez had first spotted him. Yasquez returned to the house where appellant had initially taken flight. A vehicle was parked in front of the house. Domingo Arrellano's body was partially underneath the vehicle. Arrellano had approximately five stab wounds and twenty cuts and abrasions to his body. Appellant told police that Arrellano came to his residence demanding beer. A fight ensued, and he stabbed Arrellano in the chest.\\nThe defense version of the events, showed that appellant and Arrellano arrived at appellant's residence together. They sat on the front steps and drank beer. Arrellano demanded more beer or money. He then decided to search the house for appellant's wallet. He tackled appellant and tried to choke him. Appellant grabbed a knife, put it to Arrellano's throat and took him outside. They tripped on the front steps and fell. Appellant stabbed Arrellano in the throat.\\nBy point one, appellant complains that the trial court erred in denying his motion for mistrial. He contends that the admission of blood spatter evidence violates the due process clause of the Fourteenth Amendment and the due course of law provision of Article 1, Section 19 of the Texas Constitution. After the defense rested its case, the State called Benjamin Wolfe as a rebuttal witness. Wolfe's testimony concerned a blood spatter investigation which he performed at the crime scene. He said that blood can produce a specific pattern when it contacts a surface. Blood spatter interpretations are used to determine the blood's origin, its distance from the point of origin, the number of blows to the victim, the positions of the attacker and the victim, and whether the victim was moved. Wolfe said that in this case, the blood spatters outside appellant's residence were consistent with violence and a lot of movement. Wolfe found no signs of blood or of a struggle inside the residence.\\nDuring Wolfe's cross-examination, the State gave counsel a copy of Wolfe's report and diagram pertaining to his investigation. Counsel told the trial court that she had not previously seen the report or diagram, and, therefore, did not have the opportunity to retain an expert to counter Wolfe's testimony. Counsel also told the trial court that even though she knew that the State listed Wolfe as a witness, she did not know that the State would call him as a rebuttal witness. Counsel made a motion that she be allowed time to retain an expert. The court granted the motion and postponed the case. Later, the trial court denied the motion. Counsel moved for a mistrial on the grounds that she did not receive a copy of Wolfe's report, that she was denied the opportunity to retain an expert, and that Wolfe's testimony had tainted the jury. The trial court denied the motion for mistrial and instructed the jury to disregard Wolfe's testimony. Counsel again moved for a mistrial, and the trial court overruled the motion.\\nAppellant's point of error is directed to the trial court's admission of Wolfe's testimony. An objection to testimony must be urged at the earliest opportunity in order to preserve error for appellate review. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App.1980); Duenez v. State, 735 S.W.2d 563, 565 (Tex.App.\\u2014Houston [1st Dist.] 1987, pet. ref d); Tex.R.App.P. 52(a); Tex.R.Crim.Evid. 103(a)(1). Here, in the instant case, appellant did not object to Wolfe's testimony until after he completed testifying on direct-examination. There is nothing preserved for review. In any event, an instruction to disregard is sufficient to cure error unless the testimony is clearly calculated to inflame the minds of the jury and is of such character that it suggests the impossibility of withdrawing the impressions produced. Livingston v. State, 739 S.W.2d 311, 335 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); West v. State, 790 S.W.2d 3, 4-5 (Tex.App.\\u2014San Antonio 1989, no pet.). We find nothing to indicate that Wolfe's testimony could not be cured by the instruction.\\nBy point two, appellant complains that the jury improperly considered the parole law in assessing punishment. He contends that the jury's conduct violated the due process clause of the Fourteenth Amendment and Article 1, Section 19 of the Texas Constitution. After the jurors had retired to deliberate on appellant's punishment, the trial court received a note from the jury which read, \\\"We want to know if the Defendant will serve the full amount of years given by the jury?\\\" The court responded, \\\"You are not to consider the decision of this issue. That is solely up to the authority of the Board of Pardons and Paroles.\\\" Appellant asserts that based upon the jurors' question, and their assessment of the maximum punishment, no other conclusion can be reached but that they considered the parole law in assessing punishment.\\nIf a defendant has not received a fair and impartial trial as a result of jury misconduct, a new trial may be granted. Beck v. State, 573 S.W.2d 786, 789 (Tex.Crim.App.1978); Tex.R.App.P. 30(b)(8). To show that a jury's discussion of the parole law constitutes reversible error, the defendant has an onerous burden. He must show that there was: (1) a misstatement of the law; (2) asserted as a fact; (3) by one professing to know the law; (4) which was relied upon by other jurors; (5) who for that reason changed their vote to a harsher punishment. Callins v. State, 780 S.W.2d 176, 191 (Tex.Crim.App.1989), cert. denied, \\u2014 U.S. -, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990); Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984). To determine if the five requirements were met, the reviewing court must have an adequate record. The record must show that the jury's discussion of parole was such misconduct that denied the defendant of a fair and impartial trial. Samuels v. State, 785 S.W.2d 882, 888 (Tex.App.\\u2014San Antonio 1990, pet. ref'd). In the instant case, appellant did not allege jury misconduct in his motion for new trial, nor did he present any evidence on this issue. Absent an adequate record, we cannot determine whether the jury's discussion or not of the parole law constituted reversible error.\\nThe trial court's judgment is AFFIRMED.\"}"

tex/10010281.json

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+"{\"id\": \"10010281\", \"name\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hall v. State\", \"decision_date\": \"1993-08-25\", \"docket_number\": \"No. 09-92-046 CR\", \"first_page\": \"710\", \"last_page\": \"719\", \"citations\": \"862 S.W.2d 710\", \"volume\": \"862\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:29:56.847804+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.\", \"parties\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee.\\nNo. 09-92-046 CR.\\nCourt of Appeals of Texas, Beaumont.\\nAug. 25, 1993.\\nTom Brown, Livingston, for appellant.\\nRobert Hill Trapp, Cr. Dist. Atty., Coldspring, for the State.\\nBefore WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.\", \"word_count\": \"4799\", \"char_count\": \"29455\", \"text\": \"OPINION\\nPER CURIAM.\\nAppellant was charged with three offenses, aggravated robbery, aggravated kidnapping and aggravated sexual assault. He plead not guilty to each. The jury found him guilty of aggravated robbery and aggravated sexual assault. An instructed verdict of not guilty was granted by the trial court on aggravated kidnapping. The indictment contained 15 enhancement paragraphs. Appellant plead \\\"not true\\\" to all the enhancement paragraphs. The jury sentenced appellant on both offenses to life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000, coupled with a finding of true as to at least two enhancement paragraphs. Appellant's counsel unequivocally stated that after a thorough and diligent search and review of the record and the law applicable thereto, he concluded that the appeal was and is wholly without merit, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978) and Currie v. State, 516 S.W.2d 684 (Tex.Crim.App.1974). Thereafter appellant filed a pro se brief. In his brief appellant concedes the record reflects he committed aggravated robbery and aggravated sexual assault.\\nPartial Statement of Facts\\nThe victim testified that on April 4, 1991, she was operating a store in San Jacinto County. When she arrived at the store at about 6:35 a.m. several people, including appellant, were waiting. After the others had left, appellant entered the store holding a gun covered with a towel. The victim testified appellant took money from the cash register and her purse. Appellant then put the gun to her back and ordered her to go with him.\\nAppellant ordered the victim into the back seat of a vehicle and ordered her to remove her shirt and pants. Appellant stopped the vehicle in a wooded area, instructed her to get out, removed her underwear and ordered her to take off her jewelry. Then appellant sexually assaulted the victim. During this assault the victim struck appellant who struck her back. Later appellant took the victim's necklace.\\nThe victim testified appellant had displayed and used a pistol and she was definitely in fear of her own life. Two other witnesses testified appellant was present at the store early in the morning. Employees of a store in Houston testified appellant had first used and then later on attempted to use, a credit card which had been in the victim's purse. Appellant's former girlfriend testified he came to her house in Houston the morning of April 4, 1991. He gave this former girlfriend a watch, two rings and a necklace, which were identified as belonging to the victim. The girlfriend testified appellant also had a money sack, some credit cards, a female's driver license and a pistol.\\nAppellant's niece testified he had lived at her house in Houston during the relevant time. The niece stated appellant was not there on the morning of April 4,1991. However, later, upon a search by peace officers, a gun and the victim's bank bag were found in the niece's house. A criminologist testified that she, the criminologist, had examined the victim's shirt and found semen on it. A Dr. Giles, who was a scientific director for Gen-eScreen, testified that he, and others under his direct supervision, tested various substances using a DNA fingerprinting technique. He stated that the DNA results, from a sample taken from appellant, matched a vaginal swab taken from the victim after the sexual assault. He further testified that appellant's DNA pattern was found in his own particular population in only one out of every 797,000 people.\\nA chemist with the Department of Public Safety testified that hair taken from the gun found in the appellant's residence was consistent with hair samples taken from the victim.\\nAppellant sets out twenty-one points of error. The first point alleges the trial court erred in not sustaining defense counsel's objections to tape recordings of telephone conversations between appellant and his girlfriend. Law enforcement officers went to the girlfriend's apartment and received permission to record conversations between herself and appellant. Counsel objected to the tapes based upon their quality, claiming they were unintelligible. Appellant now claims the tapes were inadmissible in violation of the Texas wiretap statute, Tex. Code CRIM.PROcAnn. art. 18.20, \\u00a7 3(b), 5(a), 14(b)(1) (Vernon Supp.1993). Points of error which do not correspond to the objection at trial are waived and nothing is preserved for review. Fuller v. State, 827 S.W.2d 919 (Tex. Crim.App.1992). Furthermore, the restrictions of the wiretap statute do not apply when a private individual consents to the taping of conversation with a defendant, even without the knowledge or consent of the defendant. See McDuffie v. State, 854 S.W.2d 195 (Tex.App.\\u2014Beaumont 1993, pet. filed); Ward v. State, 787 S.W.2d 116, 119 (Tex.App.\\u2014Corpus Christi 1990, pet. refd). This point of error is overruled.\\nThe next point of error urges the trial court erred in not forcing the state to make an election upon which count to proceed under the three count indictment. Appellant relies upon Holcomb v. State, 745 S.W.2d 903 (Tex.Crim.App.1988) for the proposition that Aggravated Sexual Assault and Aggravated Robbery may not be alleged in the same indictment. However, since the trial in Holcomb TexPenal Code Ann. \\u00a7 3.01 (Vernon Supp.1993) has been amended and it is permissible for a defendant to be prosecuted in a single criminal action for all the offenses arising out of the same criminal episode. See Letson v. State, 805 S.W.2d 801 (Tex.App.\\u2014Houston [14th Dist.] 1990, no pet.).\\nPoint of error number three alleges error in overruling counsel's hearsay objection to the question \\\"Did he give you any names regarding the name of the individual that did this?\\\" The question was asked in relation to appellant's use of a credit card belonging to the victim. The manager of a sporting goods store identified appellant as the person who had bought items using the credit card. The manager testified he had been contacted by an individual, Will Morris, who stated he might have knowledge about the credit card fraud. The witness was allowed to answer the question presented, but did not testify as to the name. Later Will Morris testified, without objection, that he had talked to the store manager and had given appellant's name to both the manager and the authorities. Consequently, we need not determine whether the first instance was error or not, for the same evidence was later admitted without objection, thereby curing any error. Lewis v. State, 759 S.W.2d 773 (Tex.App.\\u2014Beaumont 1988, no pet.). This point of error is overruled.\\nThe next point of error asserts the trial court erred in failing to sustain appellant's objection to the state amending the indictment. The indictment had fifteen enhancement paragraphs. During the reading of the enhancement paragraphs, at the beginning of the punishment phase, the state omitted paragraph number 12. After appellant plead \\\"Not True\\\" and the state had called its first witness, counsel objected to the state omitting paragraph twelve. The prosecutor responded it was within the state's prerogative and the court allowed the state to omit paragraph twelve. This was no.t an amendment of an indictment to correct or add allegations. See and compare Sodipo v. State, 815 S.W.2d 551, 555-556 (Tex.Crim. App.1990); Strickland v. State, 827 S.W.2d 406 (Tex.App.\\u2014Corpus Christi 1992, no pet.). The state may, with the permission of the trial court, abandon paragraphs or specific allegations of an indictment. Ex parte Scelles, 511 S.W.2d 300 (Tex.Crim.App.1974); Rodriguez v. State, 449 S.W.2d 469 (Tex. Crim.App.1970). This point of error is overruled.\\nPoints of error five through twenty-one complain of ineffective counsel.\\nThe Standard of Review on Effectiveness of Trial Counsel\\nThe landmark case on ineffectiveness of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It announces a two-prong test. First, an appellant must demonstrate counsel's performance was deficient, his professional assistance was not reasonably effective and his actions fell below community standards. Next, an appellant must also show that but for the lack of effective counsel the results or the outcome of the trial would have probably been different.\\nThe Strickland test has been adopted in Texas. An appellate court has to look at counsel's performance as of the date of trial. An isolated or infrequent failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance. The totality of the trial counsel's conduct and performance must be reviewed and analyzed. The constitutional right of counsel as guaranteed by the fundamental laws of both the United States and Texas does not mean an errorless trial. Importantly upon an appellate review, the judicial scrutiny of an intermediate appellate court must be highly deferential to the trial lawyer and his trial strategy. Any distorting effects of hindsight are to be eliminated and avoided. Even trial tactics that are not successful do not amount to ineffectiveness. Only reasonably effective assistance is required. Perhaps the final touchstone is a review of the totality of all the circumstances of the trial. Moreover, the allegations of ineffective assistance of counsel will only be sustained and adhered to if those same allegations are firmly established and founded. See Holland v. State, 761 S.W.2d 307, 319 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989). Appellant first alleges his defense counsel was ineffective in that he failed to move to quash the jury panel. This point is based upon the contention that there was a discriminatory use of racially motivated peremptory strikes by the State which engaged and brought about the systematic exclusion of minority members from the jury. Appellant places major reliance on Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987).\\nAt the conclusion of the voir dire, the defense counsel exercised all of his peremptory strikes. The State, however, exercised only four of its ten. The jury was then seated and sworn. The record seems clear that the trial court diligently and conscientiously excused many of the jurors who had any question about their ability to be fair and impartial or who had heard anything about the case or who had formed any opinion no matter how slight.\\nThere is nothing in the record to indicate trial counsel objected to the racial make up of the jury. Nor is the racial makeup itself shown. The record does not indicate the race of any person struck by the state or by the defense. Appellant's brief makes no reference to the record. No argument, as such, is contained. Appellant has not demonstrated that trial counsel was ineffective in failing to move to quash the venire panel. Point of error number five is overruled.\\nAppellant has failed to show a systematic exclusion of potential minority jurors in a discriminatory manner that violated the appellant's rights to due process or the appellant's rights to equal protection, or the appellant's rights to a jury trial by a cross section of the community. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Again, the record is silent as to any pattern of strikes against any minority jurors. Point of error number six is overruled.\\nThe next point of error alleges counsel was ineffective by failing to object to the jury charge. Appellant states the jury charge was \\\"fundamentally erroneous in that it authorizes a conviction under every con-eeivable theory under Statutes rather than limiting conviction to the theory alleged in the indictment.\\\" His real argument is that the indictment does not allege \\\"serious bodily injury\\\" while the charge makes extensive use of it. The indictment alleges appellant committed the sexual assault by \\\"threats, force and violence.\\\" The charge defined aggravated sexual assault in terms of placing the victim in fear of serious bodily injury. The variance between the indictment and the charge was error. See Bonfanti v. State, 686 S.W.2d 149 (Tex.Crim.App.1985). If the point of error simply involved the jury charge, then an analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) would be proper, i.e., since the error was unobjected to, whether in reviewing the entire jury charge, the state of the evidence and the record of the trial as a whole, was the error so egregiously harmful that appellant did not have a fair and impartial trial. However, this is not the standard of review under this point of error. We must look at counsel's failure to object. It can be argued that the charge places a higher burden on the state than did the indictment. Thus, it is certainly plausible that counsel did not object based upon trial strategy. This does not make his performance ineffective. Miniel v. State, 831 S.W.2d 310 (Tex.Crim.App.), cert. denied, \\u2014 U.S. -, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). The failure to object was not error. Point of error seven is overruled.\\nPoint of error eight urges ineffectiveness by not objecting to the prosecutor's opening statement reference to appellant. Contrary to appellant's assertion that this injected the prosecutor's personal prejudicial opinion, the remark was prefaced by a statement of what the State intended to prove and was proper. Marini v. State, 593 S.W.2d 709, 715 (Tex.Crim.App.1980). Counsel was not ineffective by failing to object to a proper opening statement. This point of error is overruled.\\nThe ninth point alleges counsel was ineffective by \\\"not moving to quash the improperly joined indictment.\\\" In view of our disposition of point of error two, this point is overruled.\\nPoint of error ten states counsel was ineffective in that he failed to object to extraneous testimony. The offending testimony was given by a witness who lived near the store. The witness testified appellant came to her residence on two occasions prior to the occurrence and asked directions to another house. All of the cases cited by appellant deal with extraneous offenses. This was not evidence of any extraneous offenses. It simply showed appellant was in the general area several days prior to the offense. We find no ineffective assistance. This point of error is overruled.\\nThe next point of error states counsel should have objected to conflicting testimony of witnesses. Appellant points out testimony during the guilt phase where a witness testified appellant came by her house on March 2, 1991, and testimony during the punishment stage where a witness stated appellant had been released on parole March 3, 1991. In the first place an objection was certainly not a proper vehicle. Appellant's real complaint is counsel's failure to somehow point out the inconsistent testimony, either by cross-examination or argument. However, appellant does not suggest how this tactic would have been helpful, much less its absence harmful. Nothing is presented for review. This point of error is overruled.\\nPoint of error twelve again urges error for failing to object to conflicting testimony. The victim testified appellant did not have a moustache. Another witness testified he saw appellant at the store the morning of the crime and appellant did have a moustache. As noted in the previous point of error, nothing is presented for review. This point of error is overruled.\\nThe thirteenth point of error alleges counsel was ineffective for not objecting to the introduction of a gun or moving to suppress the evidence. The victim identified the gun as the one appellant held on her during the robbery. Later, during cross-examination, she testified she really could not say whether the exhibit was the gun used or not. The gun was found at appellant's sister's house. A chemist testified that hair recovered from the gun and from the victim were similar. Pursuant to the execution of a search warrant, the gun was discovered, along with a bank bag taken in the robbery, in the residence where appellant was living. Appellant does not challenge the validity of the search warrant. He only advances the point of error because the victim equivocated on the identification of the weapon. Even with the equivocation, the gun was admissible. This point of error is overruled.\\nThe next point of error alleges ineffectiveness of counsel based on a failure to object to physical evidence taken from appellant. Samples of appellant's head hair, pubic hair, saliva and blood were taken from appellant at a hospital in Cleveland, Texas. These were taken after a search warrant was issued authorizing the taking of these samples. Appellant urges counsel should have objected to the introduction of the evidence or moved to suppress it. This would have been fruitless in light of a valid search warrant. Appellant produces nothing showing counsel had not reviewed the warrant. In fact, counsel had filed a motion for discovery requesting a copy of any search warrants and results of any scientific tests. Appellant has presented nothing but conjecture for review. This point of error is overruled.\\nPoint of error fifteen alleges counsel was ineffective for not objecting to hearsay testimony, that of Will Morris. Appellant asserts Morris' entire testimony is \\\"predicated on hearsay\\\", yet does not point to what particular portion of Morris' testimony is tainted. This allegation is only conclusory and presents nothing for review. We find no error. This point of error is overruled.\\nThe next point of error complains that counsel was ineffective in \\\"not objecting to 'conflict of interest' issue\\\". Appellant argues that the justice of the peace who arraigned appellant and set bail was the victim's spouse's uncle and was thus prejudiced. It appears the justice of the peace was related to the victim within the third degree of affinity, Tex.Rev.Civ.Stat.Ann. art. 5996h (Vernon Supp.1993). Thus, the justice of the peace was disqualified. Tex.Code CRIM.PROG. Ann. art. 30.01 (Vernon Supp.1993). However, all of the actions taken by the justice of the peace were prior to indictment. Therefore, the pre-indictment arraignment and setting of bonds were mooted by the indictment. Trial counsel had no basis for any \\\"conflict of interest\\\" objection during the district court trial. This point of error is overruled.\\nThe seventeenth point of error urges ineffectiveness for failing to move to suppress the evidence obtained as a result of the search warrant issued for appellant's residence. He also argues ineffectiveness for failing to object to the introduction of the items at trial. As with point of error fourteen, this would have fruitless in light of a valid search warrant. Appellant produces nothing showing counsel had not reviewed the warrant. In fact, counsel had filed a motion for discovery requesting a copy of any search warrants and results of any scientific tests. Appellant has presented nothing but conjecture for review. This point of error is overruled.\\nPoint of error eighteen complains of counsel's failure to move to suppress the hair samples found on the gun due to conflicting testimony. The chemist testified that the victim's hair and the ham removed from the gun were consistent with one another. His lab report stated that it was his opinion the unknown hair (found on the gun) could originate from the victim, but did not possess a specific, significant number of unique characteristics to be positively identified. As with a number of appellant's points, he is only con-clusory, cites no authority and presents nothing for review. Brooks v. State, 642 S.W.2d 791, 797 (Tex.Crim.App.1982). It was the province of the jury to resolve the inconsistencies, if any. This point is overruled.\\nThe next point of error urges counsel was ineffective for failing to object to the jury findings of guilty on both counts of the indictment. This is but the final argument based upon the joinder of the two offenses in the single indictment and trial. Having found no error in the joinder under point of error two, nor ineffectiveness in this regard in point of error nine, we find no error under this point of error. It is overruled.\\nThe twentieth point of error asserts appellate counsel was ineffective for filing a frivolous brief. We strongly disagree. Appellate counsel's brief was in compliance with Anders and High. As reflected by our disposition of appellant's pro se points, the appeal was wholly without merit. Appellate counsel discussed nine areas, many of which were adopted by appellant, and concluded no error existed in any of these areas. He was and is correct. This point of error is overruled.\\nThe last point of error is a cumulative ineffectiveness of counsel point. We have carefully reviewed each of the points of error concerning ineffectiveness of counsel at trial and on appeal. We have reviewed counsel's performance throughout the record. He was prepared. He was an aggressive advocate for appellant. Under any standard, especially the \\\"totality of the circumstances\\\" standard, appellant's counsel did an admirable job in representing appellant both at trial and on appeal. Appellant received reasonably effective assistance of counsel.\\nAppellant, in his pro se capacity, has failed to show any error, much less reversible error. We affirm the judgment.\\nAFFIRMED.\\n. The State asserts this follows the 1984 wording of the \\\"Texas Prosecutor Council indictment manual [sic].\\\"\\n. The State asserts the charge generally tracked \\\"the 1990 Revised Edition of McClung's Jury Charges for Texas Criminal Practice.\\\"\\n. Simply because we discharged our duty and reviewed appellant's pro se points, this does not somehow give the appeal more merit than it deserves otherwise.\"}"

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+"{\"id\": \"10014347\", \"name\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1993-11-24\", \"docket_number\": \"No. 01-92-01063-CR\", \"first_page\": \"760\", \"last_page\": \"765\", \"citations\": \"866 S.W.2d 760\", \"volume\": \"866\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:59:39.148563+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before OLIVER-PARROTT, C.J., and O\\u2019CONNOR and WILSON, JJ.\", \"parties\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee.\\nNo. 01-92-01063-CR.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nNov. 24, 1993.\\nDiscretionary Review Refused March 16, 1994.\\nTerrence Gaiser, Houston, for appellant.\\nJohn B. Holmes, Jr., Ernest Davila, Michelle Stansbury, Houston, for appellee.\\nBefore OLIVER-PARROTT, C.J., and O\\u2019CONNOR and WILSON, JJ.\", \"word_count\": \"2063\", \"char_count\": \"13569\", \"text\": \"OPINION\\nWILSON, Justice.\\nAppellant, Edward Troy Smith, was charged by information with the offense of operating a sexually oriented business without a permit. The trial court overruled his motion to quash the information. Pursuant to a plea agreement, appellant pled guilty to the charged offense and true to an enhancement paragraph. The trial court sentenced appellant to 90-days confinement and assessed a $350 fine. We affirm.\\nFactual background\\nAppellant owned and operated the Long-point Emporium. At the hearing on appellant's motion to quash, Houston Police Department Officer Steven Andrews testified that in February 1992, as a member of the police department's vice division, he was investigating sexually oriented businesses. On February 18, 1992, he and Officer R.E. McFarland visited the Longpoint Emporium. Officer Andrews noticed that the store was divided into three areas. He described the front of the store as a \\\"straight\\\" (or non-sexually oriented) area, containing old newspapers, books, and magazines, as well as some leather goods, including underwear, masks, and straps \\\"used for bondage type things.\\\" The second area of the store contained videotapes and magazines, as well as \\\"gel, poppers and that type of thing\\\" in a display case. Officer Andrews counted 510 videotapes in the second area. The second area also contained the manager's station, which contained several VCR's. The VCR's were connected to a television set in the third area, described as a \\\"viewing area,\\\" in which customers could watch the video being played. Officer Andrews described the viewing area as an unsanitary room with sofas and chairs and \\\"various little cubbyholes.\\\" During the officers' visit, the clerk was showing a video in which a man and woman were engaged in anal intercourse.\\nBased on the covers of the magazines and videotapes in the second area, some of which depicted \\\"sexual intercourse, deviate sexual intercourse, anal intercourse and oral sodomy,\\\" Officer Andrews concluded that they contained sexually explicit material and that the store was a sexually oriented business. The store did not have a sexually oriented business permit attached to the front door. After the officers arrested the store manager, they found nine rubber dildos in an opaque trash bag underneath a counter.\\nSometime before February 1992, appellant had applied for a sexually oriented business permit for the store. In his application, appellant described his business as an adult video and book store. Officer Andrews testified that he investigated appellant's application, and that appellant's application was denied because the business was in a residential area and across the street from one church and 660 feet away from another.\\nEnabling legislation and municipal ordinance\\nThe legislature has found that \\\"the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity.\\\" Tex.Local Gov't Code Ann. \\u00a7 243.-001(a) (Vernon Supp.1993). The legislature has therefore authorized municipalities to adopt certain regulations regarding sexually oriented businesses. Tex.Local Gov't Code Ann. \\u00a7 243.003(a) (Vernon Supp.1993). The definition of \\\"sexually oriented business\\\" includes adult bookstores. Tex.Local Gov't Code Ann. \\u00a7 243.002 (Vernon Supp.1993). A municipality may restrict the location of a sexually oriented business to certain areas; such businesses may also be prohibited within a certain distance of, among other things, schools, churches, and residential neighborhoods. Tex.Local Gov't Code Ann. \\u00a7 243.-006(a)(1), (2) (Vernon Supp.1993). A municipality may require that the owner or operator of a sexually oriented business obtain a permit for the operation of the business. Tex.Local Gov't Code Ann. \\u00a7 243.007(a) (Vernon Supp.1993).\\nPursuant to these provisions of the Local Government Code, the city of Houston has promulgated an ordinance governing sexually oriented businesses. The ordinance requires anyone owning, operating, or conducting any business in an \\\"enterprise\\\" located within the city to have a permit for the enterprise, and to post the permit at or near the enterprise's entrance. Houston Municipal Ordinance \\u00a7 28.122(a), (b). The definition of \\\"enterprise\\\" includes \\\"adult bookstore,\\\" which is defined in the ordinance as follows:\\nAn establishment whose primary business is the offering to customers of books, magazines, films or videotapes (whether for viewing off-premises or on-premises by use of motion picture machines or other image-producing devices), periodicals, or other printed or pictorial materials which are intended to provide sexual stimulation or sexual gratification to such customers, and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas.\\nId at \\u00a7 28-121 (emphasis added). The ordinance defines \\\"specified sexual activities\\\" and \\\"specified anatomical areas.\\\" Id The ordinance further provides that the police department shall issue a permit unless, among other things, the enterprise is located within 750 feet of a church, or if 75 percent of the surrounding tracts within a prescribed area are residential in character. Id at \\u00a7 28-125(b)(1), (3).\\nAppellant's first amendment argument\\nIn one point of error, appellant asserts the trial court erred in denying his motion to quash because \\\"the application of the Houston city ordinance to the facts of this case prohibiting appellant from owning his bookstore and operating that business without a permit violates the appellant's right to equal protection of the law under the Fourteenth Amendment to the Constitution of the United States.\\\" Specifically, he argues that because the ordinance defines \\\"specified anatomical areas\\\" and \\\"specified sexual activities,\\\" it is impermissibly directed at the content of the materials sold. He further argues that because the ordinance applies only to enterprises whose primary business is selling sexually oriented material, it violates the first and fourteenth amendments \\\"by imposing a prior restraint and criminal sanctions to enforce a content-based restriction on the geographic location of adult bookstores that sell, lease or exhibit sexually explicit material,\\\" while exempting businesses that do not deal primarily in sexually explicit material.\\n1. Content\\nAppellant asserts that \\\"one need only look at the Ordinance's [definitions of \\\"specified anatomical areas\\\" and \\\"specified sexual activities\\\"] to see that it is the sexual content of the material offered to the public that is the target of the restrictions imposed.\\\" We think it is clear from the ordinance's title \\u2014 \\\"Sexually Oriented Businesses\\\" \\u2014 that the ordinance targets the content of the material. All written material is presumptively protected by the first amendment. Davis v. State, 658 S.W.2d 572, 577 (Tex.Crim.App.1983). However, an ordinance is not invalid merely because it subjects the commercial exploitation of materials protected by the first amendment to licensing or zoning requirements. Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976); Jolar Cinema of Houston, Inc. v. City of Houston, 695 S.W.2d 353, 355 (Tex.App.\\u2014Houston [1st Dist.] 1985, no writ).\\nIn City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court considered a zoning provision that prohibited sexually oriented businesses from locating near churches, residential areas, schools, and parks. 475 U.S. at 44,106 S.Ct. at 927. The Court held that the ordinance could be treated as content-neutral because its purpose was not to curb speech, but was, rather, to curb the secondary effects of certain businesses on the surrounding community. 475 U.S. at 47,106 S.Ct. at 928; SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir. 1988), cert. denied M.E.F. Enter., Inc. v. City of Houston, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The constitutionality of such ordinances is tested by the time, place, and manner of their regulation. City of Renton, 475 U.S. at 47, 106 S.Ct. at 928; SDJ, Inc., 837 F.2d at 1273. These t\\u00edme, place and manner regulations are acceptable as long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. City of Renton, 476 U.S. at 47, 106 S.Ct. at 928.\\nA \\\"city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect.\\\" American Mini Theatres, Inc., 427 U.S. at 71, 96 S.Ct. at 2453. For this reason, ordinances similar to the one now before this Court have repeatedly been found to serve a substantial governmental interest. See SDJ, Inc., 837 F.2d at 1274-75 (holding that an earlier version of the ordinance now before this Court did not violate the first amendment); Lindsay v. Papageorgiou, 751 S.W.2d 544, 549 (Tex.App.\\u2014Houston [1st Dist.] 1988, writ denied) (upholding Harris County regulations regarding the location of sexually oriented enterprises); Rahmani v. State, 748 S.W.2d 618, 622-23 (Tex.App.\\u2014Houston [1st Dist.] 1988, pet. ref d) (upholding the city of Houston's ordinance regulating adult arcades); Jolar Cinema, 695 S.W.2d at 355 (upholding an earlier version of the ordinance currently before this Court). We find that this ordinance similarly serves a substantial governmental interest.\\nWe also find that the ordinance leaves open alternative channels of communication. The ordinance does not totally ban operation of all such enterprises, and does not limit the number of such enterprises. The ordinance merely places a limit on the locations where such expression may be expressed. Papageorgiou, 751 S.W.2d at 550.\\n2. Equal protection\\nAppellant asserts that the ordinance denies him equal protection because it requires the permitting of enterprises whose primary business is offering sexually oriented material, but exempts those businesses whose activities might incidentally include the offering of sexually oriented material. We disagree.\\nAs previously noted, the legislature has determined that the unrestricted operation of certain sexually oriented businesses may contribute to \\\"the decline of residential and business neighborhoods and the growth of criminal activity.\\\" Tex.LoCAL Gov't Code Ann. \\u00a7 243.001(a) (Vernon Supp.1993). Additionally, in 1982, before enacting regulations on sexually oriented businesses, the city of Houston conducted a study to determine the effects of such businesses within the city. The results of this study were described by the Fifth Circuit:\\nThe committee conducted public hearings, studied the regulations and experiences of other cities, and concluded that sexually oriented businesses can exert a dehumanizing influence on persons attending churches and schools, can contribute to an increase in criminal activity, can contribute to the impairment of character and quality of residential neighborhoods, and, when concentrated in one area, can contribute to a decline of surrounding property.\\nSDJ, Inc., 837 F.2d at 1272. It is clear from the city's findings that sexually oriented businesses generate undesirable secondary effects. The Fifth Circuit found that in drafting its ordinance regulating sexually oriented businesses, the city's predominant concern was with these secondary effects and not with the content of the expression itself. Id. at 1273.\\nIf a statutory scheme infringes upon fundamental rights or interests or burdens an inherently \\\"suspect\\\" class, the scheme is subject to strict scrutiny, and the statutory classification must promote a compelling state interest. If, however, the statutory scheme does not involve a fundamental right or a suspect class, then the appropriate standard of review is whether the classification is reasonable, not arbitrary, and bears a reasonable relationship to a legitimate state objective. Suber v. Ohio Medical Prod., Inc., 811 S.W.2d 646, 651 (Tex.App.\\u2014Houston [14th Dist.] 1991, writ denied); Jack v. Jack, 796 S.W.2d 543, 550 (Tex.App.\\u2014Dallas 1990, no writ). Suspect classes are those likely to reflect deep-seated prejudice rather than legislative rationality in pursuit of a legitimate objective. Suber, 811 S.W.2d at 651, Owners or operators of sexually oriented businesses do not constitute a suspect class.\\nWe note that sexually oriented materials are due less protection than other forms of expression. SDJ, Inc., 837 F.2d at 1274; see also American Mini Theatres, Inc., 427 U.S. at 70, 96 S.Ct. at 2452. However, we think that under either test articulated above, the ordinance in question withstands appellant's equal protection challenge. The city has a significant interest in the character and quality of its neighborhoods and the effect of sexually oriented businesses upon its populace. The ordinance currently before this Court is narrowly tailored to affect only those businesses that produce unwanted secondary effects.\\nWe overrule appellant's point of error, and affirm the judgment of the trial court.\"}"

tex/10017028.json

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+"{\"id\": \"10017028\", \"name\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee\", \"name_abbreviation\": \"Priest v. Texas Animal Health Commission\", \"decision_date\": \"1989-11-06\", \"docket_number\": \"No. 05-88-01417-CV\", \"first_page\": \"874\", \"last_page\": \"884\", \"citations\": \"780 S.W.2d 874\", \"volume\": \"780\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:16:18.477214+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HOWELL, THOMAS and OVARD, JJ.\", \"parties\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.\", \"head_matter\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.\\nNo. 05-88-01417-CV.\\nCourt of Appeals of Texas, Dallas.\\nNov. 6, 1989.\\nMark J. Calabria, Rebecca L. Calabria, Kaufman, for appellants.\\nMolly D. Shannon, Austin, for appellee.\\nBefore HOWELL, THOMAS and OVARD, JJ.\", \"word_count\": \"6132\", \"char_count\": \"38307\", \"text\": \"OPINION\\nTHOMAS, Justice.\\nD. Priest and Van Zandt Commission Company (hereafter collectively \\\"Priest\\\") appeal from a permanent injunction entered by summary judgment, enjoining Priest from: 1) failing to maintain proper cattle ownership records for cattle sold through them; 2) refusing to allow Texas Animal Health Commission (hereafter \\\"Commission\\\") representatives to examine such records; and 3) failing to brand cattle exposed to brucellosis. In two points of error, Priest contends that the trial court erred in granting the Commission's motion for summary judgment because: 1) the summary judgment evidence did not entitle the Commission to judgment \\u00e1s a matter of law and did not establish that there were no genuine issues of material fact; and 2) the affidavits and attachments to the Commission's motion for summary judgment were inadequate as a matter of law to establish that no material issue of fact existed. We agree that the proof failed to establish that Priest failed to keep records as required by law. We conclude, however, that the other grounds for injunction were properly established. Thus, the trial court's judgment is affirmed in part and reversed and remanded in part.\\nSTANDARDS OF REVIEW\\nA. Permanent Injunction\\nA successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 (Tex.App.\\u2014Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983).\\nThe grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court and, on appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion. Janus Films Inc. v. City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589, 589 (1962) (temporary injunction); Mejerle v. Brookhollow Office Products, 666 S.W.2d 192, 193 (Tex.App.\\u2014Dallas 1983, no writ) (temporary injunction); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.\\u2014Dallas 1974, no writ) (temporary injunction, but suggesting that abuse of discretion standard applies to all injunctions); Lee v. Bowles, 397 S.W.2d 923, 926 (Tex.Civ.App.\\u2014San Antonio 1965, no writ) (permanent injunction). Where the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the violation and in such case there is no discretion to be exercised. City of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex.Civ.App.\\u2014Houston 1960, writ ref'd n.r.e.).\\nAlthough a litigant has the right to a trial by jury in an injunction action, only ultimate issues of fact are submitted for jury determination. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979). The jury does not determine the expediency, necessity or propriety of equitable relief. Id.; Alamo Title Co. v. San Antonio Bar Ass'n, 360 S.W.2d 814, 816 (Tex.Civ.App.\\u2014Waco 1962, writ ref d n.r.e.). As the supreme court has noted:\\nWe do not consider the question of likelihood of [defendant's] resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury.... A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief.... It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases.\\nTexas Pet Foods, 591 S.W.2d at 803, quoting Alamo Title Co., 360 S.W.2d at 816.\\nB. Summary Judgment\\nThe function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently un-meritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Under rule 166a of the Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions, interrogatory answers, and affidavits show 1) that there is no genuine issue as to any material fact and 2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c).\\nThe applicable standards for reviewing a summary judment may be summarized as follows:-\\n1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judment as a matter of law.\\n2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.\\n3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.\\nNixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). With the standards of review for injunction and for summary judgment in mind, we turn to the summary judgment proof offered in support of Priest's violations of the Texas Agriculture Code.\\nFAILURE TO KEEP PROPER RECORDS\\nThe Texas Agriculture Code requires that each livestock auction commission merchant keep a record of transportation of livestock to and from the place of sale, including the name and address of the original owner and the purchaser of the livestock. TEX.AGRIC.CODE ANN. \\u00a7 147.042 (Vernon 1982). The statute provides that the commission merchant shall retain the records for at least one year after the date of sale. Id. \\u00a7 147.042(d).\\nThe Commission also points to section 147.041 of the Texas Agriculture Code and to rule 85.2(e) of the Texas Bovine Brucel-losis Regulations promulgated by the Commission pursuant to sections 161.046 and 163.061 of the Texas Agriculture Code, as requiring Priest to keep records of the names and addresses of sellers and purchasers of cattle. Section 147.041 requires Priest to keep records of all livestock sold. TEX.AGRIC.CODE ANN. \\u00a7 147.041(a). It does not explicitly state that Priest must keep records including the name and address of sellers and purchasers of livestock, although the statute requires him to file with the commissioners court a quarterly report containing this information. TEX.AGRIC.CODE ANN. \\u00a7 147.041(c). Because the statute does not specifically require Priest to keep the information the Commission contends he failed to keep, we conclude that violation of this provision will not support the injunction. Rule 35.2(e) provides that the market will supply certain information to the veterinarian making a market test of cattle, including the full name and address, including zip code, of the owner of the cattle at the time the cattle are delivered to the market. Again, although the rule certainly implies a requirement to keep records in order to supply the information to the veterinarian, there is no explicit requirement that Priest keep such records. The Commission has not alleged that Priest failed to give the required information to the veterinarian. Thus, violation of rule 35.2(e) will not support the injunction.\\nAs proof that Priest failed to keep records including the name and address of the original owner and the purchaser, the Commission attached to its motion for summary judgment Priest's answers to interrogatories, an affidavit of Wayne Rogers, a postmaster, and excerpts from the United States Government Manual pertaining to mail. The Commission served on Priest two sets of interrogatories. The sixty questions in the two sets each asked Priest to: \\\"Provide full name, address including county and telephone number for seller/original owner of [certain cattle identified by back tag number] sold through Van Zandt Commission Company, Inc. on [a certain date].\\\" The dates of sales were between January 4, 1986 and December 20, 1986. Priest's answers to the interrogatories were served on counsel on June 17, 1988. Priest's responses to a number of the interrogatories included name, address including route number and box number or street address, city and state, and zip code. Several interrogatory answers included a name and route number, city and state, but did not include a box number and zip code. Others included a name, city and state, or merely a name. In response to one interrogatory asking for the name and address of the seller/original owner of back tag #74 493 sold through Van Zandt Commission Company on November 22, 1986, Priest responded, \\\"Information not available.\\\" The affidavit of the postmaster and the excerpts from the Government Manual concerning the elements of a proper address were offered to show that the information provided by Priest did not, in many respects, constitute full names and addresses.\\nThe Commission's theory for summary judgment was that Priest's inability to produce names and addresses for his responses to the interrogatories was proof that, as a matter of law, Priest did not keep the records required by the Agriculture Code. The hypothesis is compelling, except for one failing. The Agriculture Code required Priest to retain records from sales for only one year. TEX.AGRIC.CODE ANN. \\u00a7 147.042(d). The fact that Priest could not produce information on June 17, 1988, concerning sales in 1986, constitutes no proof that Priest failed to keep the records of sale for one year as required by the Code. In fact, Priest stated in his affidavit that he has always maintained the proper records. Such statements of the nonmov-ant must be taken as true. Nixon, 690 S.W.2d at 548.\\nWe recognize that Priest did not raise this precise argument in his response to summary judgment, nor in his brief on appeal. We note, however, that this point concerns a deficiency of proof that Priest is entitled to raise without first complaining in his response to the motion for summary judgment. No response from the nonmov-ant is required when the movant's summary judgment proof is legally insufficient. Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex.1980). Further, Priest's points of error aver generally that the trial court erred in granting the summary judgment because the Commission failed to prove its entitlement to such judgment. These points embrace all reasons for the failure of proof which rendered the granting of the summary judgment improper. Id. at 517. We hold that the summary judgment proof failed to establish the Commission's entitlement to summary judgment on the basis of a failure by Priest to maintain proper records. Without proof of unlawful conduct or proof of intent to commit such conduct, injunctive relief is improper. Frey, 632 S.W.2d at 881. We sustain that portion of point of error one contending that the Commission failed to establish its right to judgment on the ground of failure to keep proper records.\\nREFUSAL OF ACCESS TO RECORDS\\nSection 147.042 of the Texas Agriculture Code provides that the commission merchant shall prepare the transportation records referenced above and make them available for public inspection within twenty-four hours after receipt of the livestock and that these records are to be retained for at least one year after the date of sale. TEX.AGRIC.CODE ANN. \\u00a7 147.042. The Commission contended that Priest had refused to allow Commission representatives to examine these records. As proof, the Commission offered the affidavit of Richard Hanson, Animal Health Inspector. Hanson averred that on several occasions in the exercise of his official duties he had attempted to examine the records of the Van Zandt Commission Company and was told by Priest or his wife, who acted as bookkeeper for the company, that he would not be allowed to view any of the records unless he brought a search warrant. He lists several dates upon which he was refused access to the records, such dates being within one year of sales referenced in the interrogatories.\\nPriest argues that Hanson's affidavit will not support summary judgment because Hanson is an interested witness. Rule 166a of the Texas Rules of Civil Procedure provides that a summary judgment may be based on uncontroverted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. TEX.R.CIV.P. 166a(c); Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). We conclude that the statements in Hanson's affidavit that on several listed dates he was refused access to records by Priest and his wife are clear, positive, direct and could have been readily controverted. Further, this evidence was not controverted by Priest. Thus, the summary judgment could be based upon Hanson's affidavit. Hanson clearly stated that he was not allowed to view records which the Agriculture Code required Priest to retain and make available for public inspection. We hold that this evidence established the Commission's entitlement to summary judgment on this ground as a matter of law.\\nFAILURE TO BRAND CATTLE EXPOSED TO BRUCELLOSIS\\nThe Texas Bovine Brucellosis Regulations require cattle infected with brucello-sis and cattle exposed to infected cattle to be appropriately branded. Cattle identified as being infected with brucellosis are branded on the left jaw with the letter \\\"B.\\\" Cattle from the same herd as any infected cattle are considered suspects, and are to be branded on the left jaw with the letter \\\"S.\\\" Tex. Animal Health Comm'n, 4 TEX. ADMIN. CODE \\u00a7 35.2(h) (West Oct. 15, 1988) (brucellosis). All exposed cattle are to be branded prior to moving, except that cattle on the premise of origin may be moved to a livestock market where they are to be indentified by \\\"S\\\" brand upon arrival. Id. \\u00a7 35.2(h)(2).\\nAs proof that Priest had moved suspect cattle without first \\\"S\\\" branding them, the Commission offered the affidavits of Rick Nabors, director of the State-Federal lab oratories in Texas, and veterinarian Edward L. Ptacek. In addition, Nabors's affidavit was accompanied by documents reflecting the results of brucellosis tests of cattle passing through the Van Zandt market. Nabors stated that he is a microbiologist and that the attached documents correctly reflect that brucellosis tests were conducted on blood samples received from a herd of cattle owned by the Malouf Ranch. The test results on two animals, identified by backtag numbers, were positive. Nabors averred further, \\\"Based on the card test, the veterinarian classified both animals as reactors [infected with bru-cellosis]. The State-Federal laboratory tests confirm his results.\\\" Edward Ptacek stated that he had been employed by the Commission as the director of Area 5; the area in which the Van Zandt Commission Company conducted business. On a certain date, he personally observed seventy-three head of cattle from the Malouf Ranch, which herd contained two brucello-sis-infected animals, being moved without proper \\\"S\\\" branding as required for the seventy-one exposed cattle.\\nPriest argues that Nabors's affidavit and attachments do not support the summary judgment because the affidavit contains hearsay, is not based upon personal knowledge, and fails to establish the admissibility of the attachment. Priest's hearsay complaint is directed to the statement that \\\"the veterinarian classified both animals as reactors.\\\" We agree that such statement is inadmissible hearsay, properly objected to in Priest's response to the motion for summary judgment, and should be disregarded. Priest further contends that this hearsay statement shows that Nabors's affidavit is not based on personal knowledge, but rather upon the statement of some unknown veterinarian. We disagree. The affidavit states that Nabors confirmed this statement from his own laboratory tests. Priest also argues that the documents attached to Nabors's affidavit are inadmissible because the documents are not directly referenced or identified in the affidavit, the affidavit does not reflect whether the attachments are true and correct copies of the originals, and the affidavit does not establish the admissibility of the documents.\\nPriest is mistaken in stating that the affidavit does not refer to the documents. The affidavit clearly states, \\\"The attached documents correctly reflect . \\\"; thus, the affidavit does directly reference the documents. Priest's argument that the affidavit fails to state that the copies are true and correct copies is more troublesome. Priest correctly states that such words are not used. Rule 166a states that attachments referred to in an affidavit shall be sworn or certified copies. TEX.R. CIV.P. 166a(e). Documents which are not sworn to or certified in any way do not constitute summary judgment proof. Lopez v. Hink, 757 S.W.2d 449, 450 (Tex.App.\\u2014Houston [14th Dist.] 1988, no writ).\\nThe supreme court has held, however, that copies of documents which are attached to a properly prepared affidavit are sworn copies within the meaning of rule 166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983). An affidavit which avers that the documents are true and correct copies is considered a properly prepared affidavit. Schindler, 717 S.W.2d at 607. Schindler does not, however, limit a properly prepared affidavit to one containing these magic words. We hold that Nabors's statement that the documents accurately reflect the results of tests performed by the laboratory he supervises properly verified the documents.\\nPriest's last complaint directed to Nabors's affidavit and attached documents is that the affidavit fails to establish the admissibility of the attachments \\\"with respect to who made the document, when they were prepared or whether or not they were business records.\\\" Priest does not aid us with citation to authority; nevertheless, we discern that his complaint is that the documents were hearsay in that they were not shown to be admissible business records. Priest raises this complaint for the first time on appeal. Because he failed to raise this hearsay objection in his response to the motion for summary judgment, he has waived any complaint as to consideration of inadmissible evidence as part of the summary judgment record. Dolenz v. A.B., 742 S.W.2d 82, 83-84 n. 2 (Tex.App.\\u2014Dallas 1987, writ denied).\\nPriest attacks Ptacek's affidavit because the witness references \\\"the foregoing test records,\\\" an apparent reference to the documents attached to Nabors's affidavit, which preceded Ptacek's affidavit when presented to the court. Priest again complains that the documents were not properly sworn. We reiterate that Nabors's affidavit properly verified the exhibit. Priest further complains that the referenced document was not attached to Ptacek's affidavit. Rule 166a(e) provides that sworn copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Priest does not contend that the documents attached to Na-bors's affidavit were not served together with Ptaeek's affidavit when the Commission's motion for summary judgment was served.\\nHaving determined what parts of the summary judgment proof may be considered, we turn now to the sufficiency of that proof. Nabors stated that two animals from the Malouf herd tested positive for brucellosis, and were therefore considered reactors. The test results show that the test was conducted at Priest's facility. Further, Ptacek stated that he personally observed, at the Van Zandt Commission Company, suspect cattle that were moved without first being branded \\\"S\\\".\\nWe conclude that the summary judgment proof showed that Priest had moved suspect cattle without first branding the cattle with the letter \\\"S\\\" as required by the Texas Bovine Brucellosis Regulations promulgated by the Commission. Thus, the Commission established its entitlement to summary judgment on this ground as a matter of law.\\nSUMMARY\\nWe hold that the trial court properly granted the summary judgment concluding that Priest had refused to allow Commission representatives to examine records and that Priest had allowed suspect cattle to be moved without first branding them as required by state regulations. We also conclude that the trial court did not abuse its discretion in entering the permanent injunction on these grounds. We further hold that the evidence failed to show that, as a matter of law, Priest failed to keep records as required by law. Thus, we conclude that the trial court abused its discretion in entering the injunction on this ground. We reverse the summary judgment on this ground and remand for further proceedings. In addition, the permanent injunction enjoining Priest from failing to maintain proper records is dissolved.\\nHOWELL, J., dissents.\"}"

tex/10123109.json

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+"{\"id\": \"10123109\", \"name\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hignite v. State\", \"decision_date\": \"1975-04-30\", \"docket_number\": \"No. 49861\", \"first_page\": \"210\", \"last_page\": \"214\", \"citations\": \"522 S.W.2d 210\", \"volume\": \"522\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:11:37.867418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee.\\nNo. 49861.\\nCourt of Criminal Appeals of Texas.\\nApril 30, 1975.\\nJim G. Bray, Jr., Plano, for appellant.\\nTom O\\u2019Connell, Dist. Atty., Elliott Knott, Bill Jouette and Verla Sue Holland, Asst. Dist. Attys., McKinney, Jim D. Vollers, State\\u2019s Atty., and David S, McAngus, Asst. State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"1969\", \"char_count\": \"11467\", \"text\": \"OPINION\\nONION, Presiding Judge.\\nThis is an appeal from a conviction under the former Penal Code for robbery by assault with a firearm, wherein the punishment was assessed by the jury at life imprisonment.\\nThe sole contention on appeal is that the court erred in failing to grant his motion for instructed verdict at the conclusion of the State's .case since the undisputed evidence showed that the alleged offense occurred in Dallas County, not in Collin County, as charged.\\nThe indictment alleged that the appellant had taken from John W. K. Simon \\\"a 1959 Chrysler automobile, the same being the property of the said John W. K. Simon, and with the intent then and there to deprive the said John W. K. Simon of the value of the same and to appropriate the same to the use of him, the said Dennis Leroy Hignite.\\\"\\nSimon testified that he lived in Richardson, and on the night of December 25, 1973, he had gone to a small youth church known as Shepherd's Bush. He left the church near midnight and was returning to his home in Richardson driving his Chrysler automobile north on North Central Expressway, Highway 75, when he saw two hitchhikers between the S.M.U. campus and North Park Shopping Center. He stopped to give them a ride when one of the hitchhikers, the appellant Hignite, opened the passenger side of the car and stuck a gun \\\"right in.\\\" Simon related he took his hands off the wheel and said, \\\"O. k., I'm scared.\\\" Appellant then ordered Simon away from the wheel and instructed his companion, Stephen Horner, to get in the driver's seat. Simon testified that the appellant noticed the broken gas gauge registered \\\"empty\\\" and instructed Horner \\\"to get off on Forest\\\" and go west on \\\"LBJ,\\\" where they found a Texaco service station and purchased gas using some mon ey taken from Simon's wallet and some of their own. All during this time appellant held a gun on Simon. They later returned to Highway 75 and continued in a northerly direction, stopping briefly in Plano, at which time Horner displayed a pistol to Simon. Another stop was made in the vicinity of McKinney, at which time Simon was asked if he wanted \\\"to die slow or fast.\\\" They returned to Highway 75 and drove just north of McKinney and again made an exit off the highway. Simon was ordered out of the car and to walk. As he started to walk \\\"back toward Dallas,\\\" the appellant shot him in the back and again in the leg after he was on the ground. A third shot missed. Appellant and his companion then fled in the Chrysler. The badly wounded Simon was able to make his way to a residence. Law enforcement officers were summoned and Simon gave a description of his car, its license number and a description of his assailants. They were spotted by a law enforcement officer in Collin County, and as they headed south on Highway 75 a roadblock was set up and appellant and Horner were apprehended and disarmed in Collin County.\\n\\\"The venue in a robbery prosecution must be proved as alleged in the indictment. To sustain the allegation, however, the state need only prove that, by reason of the facts, the county where the prosecution is carried on has jurisdiction.\\\" 50 Tex.Jur.2d Rev., Robbery, Sec. 41 (Venue), p. 201.\\nIt is well established that venue in a criminal case need not be proven beyond a reasonable doubt but only by a preponderance of the evidence. Article 13.17, Vernon's Ann.C.C.P. (as amended 1973); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). Venue is sufficiently proven if from the evidence the offense was committed in the county alleged. Harden v. State, 417 S.W.2d 170 (Tex.Cr.App.1967); Edwards v. State, supra.\\nUpon the question of venue raised, appellant relies upon Article 13.18, Vernon's Ann.C.C.P., which provides:\\n\\\"If venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.\\\"\\nIn addition he cites Etzler v. State, 143 Tex.Cr.R. 327, 158 S.W.2d 495 (1942), and Busby v. State, 143 Tex.Cr.R. 72, 157 S.W.2d 394 (1942).\\nBusby involved a complaining witness who picked up two hitchhikers and, while traveling in Williamson County, Busby's companion produced a pistol and ordered the complaining witness to turn the car over to them. The witness got out from under the wheel, and the defendant then began to drive, and the two robbers turned around \\\"and came back to Travis County.\\\" It is not clear from the opinion where the complaining witness picked up the hitchhikers or whether he remained in the car after he got out from under the wheel. Nevertheless, the court held that in view of the witness' undisputed testimony that the offense occurred in Williamson County, venue was properly laid in that county.\\nIn Etzler the defendant, posing as a prospective buyer of a used car, asked the salesman in Tahoka, Lynn County, for a demonstration of a car and, after driving seven or eight blocks, pulled a pistol, ordered the salesman to get a suitcase under a bush and place't in the car. The salesman was commanded to reenter the car, and the appellant then drove to Lubbock in another county before releasing the salesman, telling him the car could be recovered the next morning in Big Spring. In Etzler the court held that the robbery took place in the county where the defendant took possession and control of the automobile, and not in the county where the defendant made the salesman get out of the car. The court in Etzler observed that if the appellant had abandoned the car before he was apprehended, then the issue of whether or not he intended to permanently appropriate it would have been raised, but he did not do so.\\nThe State urges that Etzler should be read as approving the fact that venue was properly laid in Lynn County, but not condemning the possible prosecution in Lubbock County.\\nThe State takes the position that the evidence is unclear as to in what county the complaining witness picked up the hitchhikers, but the evidence clearly shows that the complaining witness was forced out of the car and shot in Collin County, and thereafter the appellant fled in the car and then permanently appropriated the car to his own use and benefit, and he was subsequently apprehended in the car in Collin County.\\nWe do observe that Article 13.19, Vernon's Ann.C.C.P., provides that:\\n\\\"If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.\\\"\\nThe State further urges that robbery is but an aggravated form of theft. Thomas v. State, 168 Tex.Cr.R. 225, 324 S.W.2d 869 (1959); Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165 (1960); Johnson v. State, 463 S.W.2d 736, 738 (Tex.Cr.App.1971). See and compare Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462 (1960). And felony theft and robbery by assault have long been held to be offenses of like character. Ex parte Romines, 419 S.W.2d 358 (Tex.Cr.App.1967); Cherry v. State, 447 S.W.2d 154, 158 (Tex.Cr.App.1969), and cases there cited.\\nArticle 13.08, Vernon's Ann.C.C.P., provides that:\\n\\\"Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.\\\"\\nIn Wallace v. State, 458 S.W.2d 67 (Tex.Cr.App.1970), this court on rehearing held that where the robbery was a continuing offense which lasted for hours, testimony of the owner of the vacant house in which the victim was found that the house was in the forum county, and by the sheriff that both the house and a gas station where the robbers and victim stopped for gas were in the forum county was sufficient to show the continuing offense was committed in the forum county and the venue was laid in that county.\\nIn the instant case, if it can be validly argued that it is not clear just where the offense commenced or was completed, then venue was properly laid under the provisions of Article 13.19, supra, since it is undisputed that the appellant was apprehended in Collin County. If, on the other hand, it can be argued that the evidence is sufficient to show that the offense commenced and was completed in Dallas County, venue was still properly laid in Collin County in view of the provisions of Article 13.08, Vernon's Ann.C.C.P. As we view the provisions of that statute, it is not limited to theft cases, but if the property is stolen by other unlawful means, such as robbery, the statute would have application and authorize venue in either Dallas County or Collin County where the property was removed. Still further, it appears that the robbery alleged (the taking of the Chrysler automobile) was a continuing offense over a period of time, and venue was properly laid in Collin County, where the complaining witness was finally forced from his car and shot, and where the appellant was apprehended. See Wallace v. State, supra.\\nEtzler and Busby appear to have been properly decided, but to the extent they infer venue could not have been properly laid in another county they are overruled to the extent of any conflict with this decision.\\nThe judgment is affirmed.\\n. An examination of the record reflects that the complaining witness picked up the defendant and his companion in Travis County while on his way home to Taylor and that after the twosome had taken possession of the car in Williamson County, they drove back to Travis County. The complaining witness remained in the car, but after reaching Travis County was forced from the car and his money was taken from him. He was tied and left, but soon untied himself and summoned law enforcement officers. The automobile was later recovered in Indiana.\\n. We note that in Smallwood v. State, 464 S.W.2d 846 (Tex.Cr.App.1971), the defendant's contention was exactly opposite that of the appellant in the instant case. The robbery indictment in Smallwood alleged the defendant took one automobile, one watch and $14.00 in money from the complaining witness in Dallas County. The evidence showed that the defendant forced his way into the complaining witness' car in Dallas County and ordered the witness to drive to the Central Expressway, where he took the witness' watch and money, as well as money from the witness' female companion. The defendant then drove into Ellis County, where be and his companion raped the female and then departed in the car. On appeal he contended that venue was not proved in Dallas County because the automobile was not finally taken until the parties were in Ellis County. In Smallwood the court, without reaching the question here involved, held that in a robbery all the property alleged taken need not be proven, and proof of the taking of a part is sufficient. The court concluded that evidence showing the taking of the watch and money was in Dallas County, and venue was properly laid. Etzler was not mentioned or cited.\"}"

tex/10126295.json

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+"{\"id\": \"10126295\", \"name\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee\", \"name_abbreviation\": \"Aero Services, Inc. v. Aero Service Corp.\", \"decision_date\": \"1976-06-09\", \"docket_number\": \"No. 1336\", \"first_page\": \"226\", \"last_page\": \"227\", \"citations\": \"538 S.W.2d 226\", \"volume\": \"538\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:15:02.535914+00:00\", \"provenance\": \"CAP\", \"judges\": \"COULSON, J., dissents.\", \"parties\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee.\", \"head_matter\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee.\\nNo. 1336.\\nCourt of Civil Appeals of Texas, Houston (14th Dist.).\\nJune 9, 1976.\\nJerry W. Bussell, Engel, Groom, Miglicco & Gibson, Houston, for appellant.\\nBen L. Reynolds, James Patrick Cooney, Royston, Rayzor, Vickery & Williams, Houston, for appellee.\", \"word_count\": \"602\", \"char_count\": \"3829\", \"text\": \"CIRE, Justice.\\nThis is an appeal from the granting of a temporary injunction. The suit was originally instituted by appellant Aero Services, Inc. seeking to enjoin appellees from conducting business in Texas under the names \\\"Aero Services\\\", \\\"Aero Service\\\", \\\"Aero Services Division\\\", or \\\"Aero Service Division\\\". Appellee answered by way of counterclaim that it is the owner of the service mark \\\"Aero Service\\\", registered in the United States Patent and Trademark Office, and of the trademark \\\"Aero\\\", registered with the Secretary of State of Texas, and has used the name \\\"Aero Service\\\" in Texas since the year 1940. Appellee sought to enjoin appellant from using the symbols \\\"Aero Service\\\" or \\\"Aero Services\\\" in Texas.\\nAfter separate hearings on each party's motion, the trial court granted the temporary injunction prayed for by appellee.\\nThe record reflects that appellee was originally incorporated in 1919 in Delaware as \\\"The Pennsylvania Aero-Service Corporation\\\", and changed its name in 1920 to \\\"Aero Service Corporation\\\". In November, 1961 Aero Service Corp. was acquired by Litton Industries, Inc. Under that agreement Litton acquired Aero's right to the use of the corporate name \\\"Aero\\\". In June, 1974 Aero Service Corp. was merged with Western Geophysical Co. of America, another subsidiary of Litton Industries. The company headquarters was moved to Houston, where it now conducts business under the name \\\"Aero Service\\\" or \\\"Aero Service Division\\\" of Western Geophysical Company. The company engages in the business of making aerial maps and surveys.\\nAppellant was issued a certificate of incorporation in Texas on August 1, 1961 under the corporate name \\\"Aero Services, Inc.\\\" and engages in the business of supplying repair parts for jet aircraft. The parties are not in competition with each other.\\nThe record reflects, and the trial court found, that appellee has used the name \\\"Aero Service\\\" in Texas since at least the early 1950's. Portions of the deposition of Harry Bradley, appellant's president, were introduced at the hearing in which Mr. Bradley testified that he had had knowledge, \\\"back in the '50's\\\" that appellee was operating in Texas under the name \\\"Aero Service\\\". It is also clear that appellant has used the name \\\"Aero Services, Inc.\\\" in Texas for approximately 14 years.\\nAppellee offered no proof at the injunction hearings of any harm which has resulted to appellee by virtue of appellant's use of its corporate name. Appellant offered evidence that there had been some confusion in mail and telephone service, but did not show any harm to appellant other than the resulting inconvenience.\\nIt is clear that appellant used its corporate name for approximately thirteen years before this suit was filed, and that appellee has used the name \\\"Aero Service\\\" for an even longer period. Both parties have built their businesses on the use of their respective names. We feel that appellant's \\\"actual, peaceable, and non-contested\\\" use of its corporate name for thirteen years could not equitably be interrupted now by a temporary injunction, especially on a showing of such little, if any, harm to either party. Burge v. Dallas Retail Merchants Association, 257 S.W.2d 733, 736-37 (Tex.Civ.App. \\u2014Dallas 1953, no writ); see Dallas Plumbing Co. v. Dallas County Plumbing Co., 253 S.W. 308 (Tex.Civ.App. \\u2014 Dallas 1923, no writ).\\nThe judgment of the trial court is reversed, and judgment is here rendered denying the temporary injunction.\\nReversed and rendered.\\nCOULSON, J., dissents.\"}"

tex/10142402.json

@@ -0,0 +1 @@
+"{\"id\": \"10142402\", \"name\": \"Ex parte Terry Martin COLLINS\", \"name_abbreviation\": \"Ex parte Collins\", \"decision_date\": \"1970-03-25\", \"docket_number\": \"No. 42839\", \"first_page\": \"454\", \"last_page\": \"454\", \"citations\": \"452 S.W.2d 454\", \"volume\": \"452\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:19:02.530596+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex parte Terry Martin COLLINS.\", \"head_matter\": \"Ex parte Terry Martin COLLINS.\\nNo. 42839.\\nCourt of Criminal Appeals of Texas.\\nMarch 25, 1970.\\nNo attorney on appeal for appellant.\\nJim D. Vollers, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"221\", \"char_count\": \"1380\", \"text\": \"OPINION\\nDOUGLAS, Judge.\\nThis is an appeal from an order of the Honorable Jerry Woodard, Judge of the 34th Judicial District Court of El Paso County, in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Louisiana.\\nThe Executive Warrant of the Honorable Preston Smith, Governor of Texas, regular on its face, was introduced making a prima facie case. The Warrant recited that appellant stood charged by affidavit made before a magistrate, with a warrant, before proper authorities with the crime of forgery of a check.\\nAppellant's counsel contends that extradition should not be granted where there is only an affidavit and no information or indictment. Article 51.13, Sec. 3, Vernon's Ann.C.C.P., provides for extradition when there is a copy of an affidavit before a magistrate with a copy of any warrant which is issued thereon. See Ex parte Preston, Tex.Cr.App., 434 S.W.2d 136, and Ex parte Krarup, Tex.Cr.App., 422 S.W.2d 173.\\nThe supporting papers which contained two affidavits before magistrates were introduced, and they support rather than defeat the prima facie case made by the introduction of the Governor's Warrant.\\nThe judgment is affirmed.\"}"

tex/10142566.json

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+"{\"id\": \"10142566\", \"name\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee\", \"name_abbreviation\": \"Southwestern Life Insurance Co. v. Scarborough\", \"decision_date\": \"1975-11-06\", \"docket_number\": \"No. 7743\", \"first_page\": \"871\", \"last_page\": \"874\", \"citations\": \"530 S.W.2d 871\", \"volume\": \"530\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:01:39.555722+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee.\", \"head_matter\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee.\\nNo. 7743.\\nCourt of Civil Appeals of Texas, Beaumont.\\nNov. 6, 1975.\\nDewey Gonsoulin, Beaumont, for appellant.\\nK. M. Armstrong, Kountze, for appellee.\", \"word_count\": \"957\", \"char_count\": \"5810\", \"text\": \"KEITH, Justice.\\nThis is a venue appeal and we will designate the parties as they appeared in the trial court.\\nPlaintiff is the administrator of the Estate of Frank A. Scarborough, Deceased, by virtue of his appointment by the Probate Court of Jefferson County. The intestate was a lifetime resident of Jefferson County; he made application to the defendant for the policy now in issue while a resident of such county and it was delivered to him therein. He died in Jefferson County and his estate is in the probate court of that county.\\nThe policy provided that the death benefits would be paid to the beneficiary, designated in this case to be: \\\"To the Executors or Administrators of the Estate of the Proposed Insured.\\\"\\nPlaintiff, a resident of Hardin County, brought suit in his representative capacity in the District Court of Hardin County seeking to recover the death benefits provided in the policy, penalties, and attorney's fees. Defendant filed its plea of privilege to be sued in Dallas County, where it is domiciled. Plaintiff's controverting affidavit invoked only the provisions of Subdiv. 28, Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964).\\nUnder this venue exception, suits may be brought against life insurance companies in the county where \\\"the policyhold er or beneficiary instituting such suit resides.\\\" (emphasis supplied) Under this exception, a plaintiff is not required to prove a cause of action. Darnell v. Southwestern American Ins. Co., 226 S.W.2d 239, 241 (Tex.Civ.App.\\u2014Dallas 1949, writ ref'd n. r. e.); American Sec. Life Ins. Co. v. M. D. Anderson H. & T. Inst., 408 S.W.2d 155, 158 (Tex.Civ.App.\\u2014Houston 1966, writ dism'd).\\nThe nature of plaintiff's suit was established by his petition which was before the trial court. Commercial Standard Insurance Company v. Caylor, 333 S.W.2d 161, 163 (Tex.Civ.App.\\u2014Austin 1960, no writ).\\nMoreover, defendant did not deny under oath any of the allegations of plaintiff's petition required to be denied under oath by Tex.R.Civ.P. 93; thus, the trial court properly admitted the policy into evidence.\\nUpon the hearing, plaintiff proved his residence in the county where the suit was instituted, his appointment as administrator of the insured's estate, and tendered the policy in evidence. Defendant thereupon offered in evidence an instrument bearing the same date as the application for the policy of insurance designated \\\"Assignment of Life Insurance Policy as Collateral\\\" whereby the insured assigned to a third party, inter alia: \\\"The sole right to collect from the Insurer in one sum the total net proceeds of the Policy payable by reason of the death of the Insured or the maturity of the Policy.\\\" However, the insured, or assignor, retained the right, inter alia, \\\"to designate and change the beneficiary\\\" named in the policy without prejudice to the rights of the assignee.\\nDefendant's proof showed that it had no record of any revocation of this assignment; and, we note in passing that the assignee was not a party to this proceeding.\\nDefendant argues that a beneficiary of a life insurance policy is the person designated by the terms of the contract as the one to receive the proceeds of the insurance, supporting the argument with citation to Bankers Protective Life Ins. Co. v. Mozingo, 127 S.W.2d 525 (Tex.Civ.App.\\u2014Dallas 1938, no writ). There is language in the cited case supporting defendant's argument; but, the context in which the statement appears does not make it applicable to the case at bar. As made plain by the abbreviated opinion, the holding was to the effect that a beneficiary of a policy was not a party to fraud in the procurement thereof so that her residence \\u2014 and not that of the insured \\u2014 determined venue in a suit for cancellation or rescission of the policy.\\nWe now have a statute covering the subject: Tex.Ins.Code Ann. Art. 3.01, \\u00a7 9 (1963), reading: \\\"The 'beneficiary' is the person to whom a policy of insurance effected is payable.\\\" Under the very terms of the policy in suit, it was payable to the executors or administrator of the insured; not to the assignee.\\nMoreover, as we have noted, the assignment which defendant offered in evidence recognized the distinction between a beneficiary and an assignee since the insured retained the right to change the beneficiary but subject to the rights of the as-signee. We conclude, therefore, that plaintiff was a \\\"beneficiary\\\" as that term is used in the cited provision of the insurance code and in Subdiv. 28 of the venue statute. Republic Bankers Life Ins. Co. v. Bunnell, 478 S.W.2d 800 (Tex.Civ.App.\\u2014Austin 1972, no writ).\\nDefendant's tender of the assignment was, essentially, a defensive plea which may properly be shown only upon the trial on the merits. The sole issue in the plea of privilege hearing is that of venue\\u2014 not liability upon the merits of the case. General Motors Acceptance Corporation v. Howard, 487 S.W.2d 708, 711 (Tex.1972).\\nDefendant's reliance upon McAllen State Bank v. Texas Bank & Trust Company, 433 S.W.2d 167 (Tex.1968), is misplaced. There, at the conclusion of a full trial upon the merits, the Court was considering the rights of a beneficiary and a pledgee to the proceeds of a life insurance policy. We do not find this case to be either controlling or persuasive.\\nFrom our review of the policy and the record as a whole, we are of the opinion that plaintiff properly invoked the jurisdiction of the court under the provisions of Subdiv. 28, Art. 1995, of the statutes, and the judgment of the trial court is\\nAffirmed.\"}"

tex/10143658.json

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+"{\"id\": \"10143658\", \"name\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees\", \"name_abbreviation\": \"Jones v. Hunt Oil Co.\", \"decision_date\": \"1970-06-12\", \"docket_number\": \"No. 17450\", \"first_page\": \"506\", \"last_page\": \"514\", \"citations\": \"456 S.W.2d 506\", \"volume\": \"456\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:01:46.612512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees.\", \"head_matter\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees.\\nNo. 17450.\\nCourt of Civil Appeals of Texas, Dallas.\\nJune 12, 1970.\\nRehearing Denied July 10, 1970.\\nJohn A. Pace, Payne, Pace & Benners, Dallas, for appellants.\\nRalph B. Shank, Shank, Irwin, Conant & Williamson, Dallas, Frank L. McClendon, Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, for appellees.\", \"word_count\": \"4826\", \"char_count\": \"29187\", \"text\": \"CLAUDE WILLIAMS, Justice.\\nMildred Mitchell Jones, joined by her husband, Harry C. Jones, brought this action against Hunt Oil Company, Hunt Petroleum Corporation, Caroline Hunt Trust Estate, and its Trustees, Atlantic Richfield Company, Mobil Oil Corporation, and others, seeking to recover damages resulting from acts which were alleged to constitute wrongful conspiracy.\\nVenue having been held to be properly laid in Dallas County, certain of the defendants filed their motions for summary judgment, supported by numerous affidavits, admissions and exhibits. Plaintiffs filed a reply to the motion, verified by one of their attorneys. Following a hearing the trial court sustained the motion and thereafter rendered judgment decreeing that plaintiffs take nothing against the named defendants. Certain other defendants not parties to the motion were dismissed. From this judgment plaintiffs have perfected their appeal.\\nProper consideration and resolution of appellants' points of error require that we set forth the following essential and relevant antecedent facts which appear to be uncontroverted in this record.\\nAppellants were the owners in fee to a certain tract of land in Henderson County, Texas consisting of 20.55 acres. On August 16, 1951 appellant Mildred Mitchell Jones (then a single woman), as lessor, executed an oil, gas and mineral lease covering the land in question to S. S. Long, referred to in the record as the Long Lease. The primary term of this lease was ten years with an annual delay rental which was paid throughout the primary term of the lease. Long subsequently assigned the lease so that on July 12, 1961 title to the leasehold estate was vested in S. H. Kil-lingsworth, subject to certain overriding royalty interest. Subsequently Killings-worth assigned certain interests in the lease to Hunt Oil Company, Hunt Petroleum Corporation and Caroline Hunt Trust Estate. On July 12, 1961 Killingsworth, joined by Hunt Oil Company, Hunt Petroleum Corporation and other owners of leases in the immediate vicinity of the Long Lease, entered into a pooling agreement establishing a unit called the \\\"Hunt-West Poynor Unit\\\" for the purpose of drilling for and producing of oil and gas from the James Lime Formation. The entire pooling unit contained 170.86 acres, including the Long Lease. Thereafter the unit operators commenced drilling operations on land located in the Hunt-West Poynor Unit, but not on the Long Lease, and completed a producing oil well on or about August 16, 1961 which well has continued to produce oil in paying quantities. No well has been drilled on the lands actually described in the Long Lease.\\nOn November 14, 1961 Hunt Oil Company, Hunt Petroleum Corporation, S. H. Killingsworth and the remaining lessees of the leases in the Hunt-West Poynor Unit executed a written instrument designated as an amendment to the unit agreement so as to exclude from the boundaries of the unit approximately 10 acres of land, leaving within the unit approximately 160 acres.\\nOn February 27, 1962 Mildred Mitchell Jones and husband filed an action in the District Court of Henderson County against those named as appellees herein, but excluding Mobil, such suit being in the nature of an action for trespass to try title and in which they set forth the facts relating to the lease, the pooling arrangement, the amended designation of unit, and contended that the attempted pooling was invalid and not authorized under the terms of the lease so that the lease terminated on August 16, 1961 at the expiration of its primary term. Plaintiffs in that case prayed judgment that the lease be adjudicated as having been terminated and that the cloud cast by same be removed and for title and possession of said land. In that action plaintiffs did not seek or pray for the recovery of any damages by reason of the acts complained of in said suit nor were there any allegations concerning wrongful conspiracy. During the trial of the case in the district court plaintiffs, appellants here, stipulated in open court that if they prevailed in that suit and recovered the land in question they would ratify the Hunt-West Poynor Unit. Also it was stipulated that it was not the contention of plaintiffs that defendants (appellees here) acted in bad faith in pooling the lease; in drilling the well on the unit; in making application to drill the well; or in amending the description of the unit area. Judgment for defendants was rendered in the trial court and affirmed on appeal to the Court of Civil Appeals. However, on June 23, 1965 the Supreme Court of Texas reviewed the case and reversed the judgments of the lower courts. The Supreme Court held that appellants here were not bound by said unit agreement, that none of the unit production was effective to maintain the lease in force, that the lease terminated on August 16, 1961, the end of its primary term, and that appellants recover the land free of the Long Lease. The Supreme Court, in its opinion, specifically held that Killingsworth and the other unit owners in the unit acted in good faith in forming the unit, and securing a permit to drill and in drilling the well on the unit. The second motion for rehearing was denied by the Supreme Court on April 20, 1966. Jones et vir v. Killingsworth et al, 403 S.W.2d 325.\\nOn February 3, 1968 the present suit was filed in which the pooling arrangement, the amendment to the same, the application to the Railroad Commission for permit to drill a well on the unit, the drilling of the well and production of oil and gas therefrom, as well as numerous other ancillary acts constituted wrongful acts of civil conspiracy which resulted in damage to plaintiffs.\\nDefendants answered with specific denials and also affirmative defenses of limitation, res judicata, estoppel, ratification, and the absence of any facts which could legally constitute wrongful conspiracy resulting in damages.\\nOPINION\\nAs a basis for reversal of the summary judgment against them appellants assign six points of error.\\nThe first point of error is: \\\"The trial court erred in granting Appellees' Motion for Summary Judgment, because the record before the Court discloses that genuine FACT issues exist as to one or more disputed material facts. Para. 1.\\\"\\nIn the statement and argument under this point appellants say \\\"that an examination of Plaintiffs' First Amended Original Petition will show that Appellant alleges that the Appellees entered into a wrongful conspiracy in connection with the formation of the Hunt-West Poynor Unit in the Fairway Field in Henderson County, Texas; that Appellees in furtherance of the announced purpose of the formation of the unit, the drilling of the well and the production of oil and gas interfered with the Appellants' property rights and the enjoyment of her right of ownership.\\\" They further say: \\\"Acts of wrongful conspiracy and damages are specifically alleged in Plaintiffs' First Amended Petition Further, they allege: \\\"Therefore, all of the allegations of damages and conspiracy are in issue.\\\" Finally, in their conclusion, appellants say: \\\"The allegations of Plaintiffs' First Amended Petition in a Motion for Summary Judgment must be taken as true and were all denied by the Defendants who filed answers; that, under these circumstances, the court was in error in rendering Summary Judgment.\\\"\\nFrom these statements by appellants it is quite evident they are proceeding on the theory that the propriety of the action of the trial court in granting appellees' motion for summary judgment must be reviewed in the light of the sufficiency of appellants' pleadings alone. This position runs counter to the specific provisions of Rule 166-A, Vernon's Texas Rules of Civil Procedure, which was wisely designed to set it apart from other rules set up to test the sufficiency vel non of pleadings alone. In Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App., Dallas 1968), we had occasion to pass upon the identical question and there pointed out:\\n\\\"The summary judgment rule goes much further by permitting the parties to support their motions for summary judgment, as well as their opposition thereto, with affidavits, depositions, requests for admissions, and other 'summary judgment evidence.' It is this summary judgment evidence, and not the pleadings, that is looked to by the court to determine the existence or nonexistence of issuable facts. Moreover, it has been held that there is a duty on the part of a court to 'pierce the pleadings' in determining the question of the existence or nonexistence of issuable facts. Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App., Dallas 1953, writ ref'd).\\\"\\nOur Supreme Court has had occasion in numerous instances to reiterate the longstanding rule that pleadings alone do not form the basis for judicial determination of the propriety of the trial court's action on a motion for summary judgment. The court has held, many times, that in summary judgment proceedings when the moving party supports his motion with affidavits or other summary judgment evidence it then becomes incumbent upon the adverse party to come forward and file counter affidavits or other summary judgment evidence in opposition thereto and, failing to do so, suffer the consequences thereof. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960); Allen v. Western Alliance Ins. Co., 162 Tex. 572, 349 S.W.2d 590 (1961).\\nIn Rothchild v. Fannin Bank, 407 S.W.2d 878 (Tex.Civ.App., Texarkana 1966, writ ref'd n. r. e.), the court reasserted the rule that a pleading even verified, was not sufficient to overcome a proper motion supported by appropriate summary judgment evidence. To the same effect see St. Clergy v. Northcutt, 448 S.W.2d 847 (Tex.Civ.App., Beaumont 1969, no writ).\\nIn Maxey v. Rodman, 444 S.W.2d 353 (Tex.Civ.App., El Paso 1969, writ ref'd n. r. e.), the court considered a similar summary judgment\\\" in a conspiracy action. The court said:\\n\\\"Admittedly, it is difficult to prove a conspiracy or a fraud under these facts. But allegations of fraud or conspiracy do not, in and of themselves, raise fact issues prohibiting the granting of a summary judgment. Martin v. Coastal States Gas Producing Company, 417 S.W.2d 91 (Tex.Civ.App., 1967, n. w. h.); Midwestern Development Co. v. Dunlap, 389 S.W.2d 112 (Tex.Civ.App., 1965, n. r. e.). In order that there be a conspiracy, it can generally be said that the evidence must establish (1) there is a combination of two or more persons, (2) there is an agreement or meeting of the minds among these persons, (3) on a common object, purpose or course of action, (4) knowledge of the object and purpose, (5) one or more overt acts, and (6) intent to participate therein. Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854 (Tex.Sup.1969).\\\"\\nHere we are faced with a summary judgment filed by appellees in proper form and supported by a host of exhibits, affidavits, admissions, and other forms of summary judgment evidence. Appellants did not counter the motion with like summary judgment evidence but, obviously proceeding on the theory of sufficiency of pleadings, relied upon an answer, though verified, by one of their attorneys. We have carefully reviewed this answer or reply and find that the same amounts to nothing more than repetitive assertions to those things pled in the first amended original petition. After repeating the operative facts set forth in the petition the attorney repeatedly states that such facts amount to a wrongful conspiracy. We are convinced that this verified reply does not legally meet the requirements of the rule as well as the opinions of our Supreme Court on the question.\\nWe agree with appellees that appellants' first point of error is too general and indefinite so that it does not comply with the briefing rules. Rule 418, T.R.C.P. Almost identically worded points were condemned by us as being too general in White v. Great American Reserve Ins. Co., 342 S.W.2d 793 (Tex.Civ.App., Dallas 1961) ; Little v. Employees Security Life Ins. Co., 343 S.W.2d 517 (Tex.Civ.App., Dallas 1961); Crutchfield v. Associates Investment Co., 376 S.W.2d 957 (Tex.Civ.App., Dallas 1964, writ ref'd); Ballard v. Associates Investment Co., 368 S.W.2d 232 (Tex.Civ.App., Dallas 1963); and Cotten v. Republic Nat. Bank, 395 S.W.2d 930 (Tex.Civ.App., Dallas 1965). In practically all of these decisions, applying the rule of liberal construction, we looked to the argument and authorities under the point to determine if we could ascertain the issues of fact claimed to have been presented. We have done so in this case but find nothing in the argument and authorities under Point 1 which would advise us of the specific issuable facts claimed by appellants to have been presented to the trial court on the hearing of the motion for summary judgment. Not finding the issues relied upon by appellants in their brief we turn to Paragraph 1 of appellants' amended motion for new trial, found in the transcript, and there we find enumerated nine alleged overt acts which appellants 'allege interfered with their property rights in the fee ownership of the land causing damages. While we entertain doubt that we are required to do so we have proceeded to carefully examine each of the alleged overt acts which are contended by appellants to constitute issuable facts on the question of wrongful conspiracy.\\nPrior to a consideration of the alleged overt acts we deem it appropriate to examine the law relating to civil conspiracy which has been definitely settled by our Supreme Court. In Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 (Tex.Sup.1969), Chief Justice Calvert reviewed the guidelines of this phase of the law:\\n\\\"A civil conspiracy has been defined by this court as 'a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.' Great Nat'l Life Ins. Co. v. Chapa, Tex., 377 S.W.2d 632, 635 (1964); State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937). But the gist of a civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the conspiracy itself. Starling v. Hill, 121 S.W.2d 648 (Tex.Civ.App.-Waco 1938, no writ); Shelton v. Lock, 19 S.W.2d 124 (Tex.Civ.App.-Amarillo, 1929, writ dism.); 16 Am.Jur.2d 149, Conspiracy, \\u00a7 344.\\\"\\nWith these rules of law in mind we turn to the alleged acts claimed by appellants to constitute civil conspiracy, which are: (1) that defendants entered into the Hunt-West Poynor Unit agreement claiming a valid oil and gas lease to plaintiffs' land; (2) that defendants filed an application with the Railroad Commission for authority to drill a well upon land included in the unit but not upon the land included in the Long Lease; (3) that defendants entered into a joint operating agreement for the Hunt-West Poynor Unit designating Hunt Oil Company as operator and continued to operate the unit while claiming title to an oil and gas lease covering minerals under the plaintiffs' land; (4) defendants directed Mobil to enter upon and lay pipeline across plaintiffs' land; (5) defendants operated said Hunt-West Poynor Unit claiming title to an oil and gas lease on plaintiffs' land until final judgment of the Supreme Court which divested and removed their claim of title; (6) defendants claiming title to plaintiffs' land received from the Railroad Commission an allowable assuming title to 160 acres including plaintiffs' land; (7) defendant Mobil advised plaintiffs that it would withhold that part of the proceeds of sale of production of oil and gas from the Hunt-West Poynor Unit attributable to plaintiffs' land, but fraudulently and secretly made payment to other defendants; (8) defendants advised the plaintiffs they would not allow plaintiffs to obtain a permit to drill a well on plaintiffs' land; and (9) defendants, from August 1961 until April 20, 1966, produced oil from the Hunt-West Poynor Unit, claiming the title to that portion which defendants by their unit declaration, admitted was attributable to plaintiffs' land.\\nAn examination of the summary judgment evidence contained in this record convinces us that appellees have sustained their burden of demonstrating that they have established as a matter of law that there is no issue of fact on the question of conspiracy. As Chief Justice Calvert said in the recent case of Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970), in a summary judgment case:\\n\\\" the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of the plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action.\\\"\\nThe record demonstrates that the unit agreement was entered into on July 12, 1961 before the expiration of the primary term of the Long Lease. The unit agreement was amended on November 14, 1961 so as to provide for unit area of 160 acres. The unit agreement, as amended, was the same Hunt-West Poynor Unit which appellants agreed in open court to ratify if they prevailed in the Jones v. Killingsworth litigation. This is the same unit agreement of which the Supreme Court in its opinion in Jones v. Killingsworth said that Killings-worth and the other unit owners acted in good faith in forming. Throughout the litigation of Jones v. Killingsworth it was appellants' position that the unit agreement did not bind them in any way in that they were not parties thereto. In their answer to the motion for summary judgment appellants state: in this suit the Plaintiffs [appellants here] do not contend that they are entitled to share in the production, or that their land was a part of the unit, or that the defendants [ap-pellees here] were under a duty to offer the Plaintiffs the opportunity to ratify \\\" Appellants in their sworn reply to appellees' motion for summary judgment state: \\\"Plaintiffs have not claimed and do not claim that they were entitled to share in any of the Hunt Oil Company production from the unit.\\\"\\nConcerning the application with the Railroad Commission for authority to drill a well upon the unit, it is undisputed that in Jones v. Killingsworth appellants stipulated, among other things, that they were not contending that Hunt Oil Company had acted in bad faith in applying to the Railroad Commission for permit to drill a well on the unit. The Supreme Court specifically held that the permit granted by the Railroad Commission was valid. As to the joint operating agreement to operate the unit well the record is undisputed that appellants in this suit do not contend that they are entitled to share in the production or that their land was a part of the operating unit.\\nConcerning the laying of a pipeline across plaintiffs' land, the record reveals that on June 27, 1966 appellants executed and delivered to Magnolia Pipeline Company a right-of-way and easement over, across and through appellants' land, reciting receipt of money \\\"for all damages to this date caused by laying, maintaining and operating a four inch pipe in the place and manner in which it has been laid through the lands\\\" of appellants. Moreover, appellants, on July 16, 1966, ratified the \\\"Fieldwide Unit.\\\" This unit agreement recites in part: \\\"The parties hereto, to the extent of their rights and interests, hereby grant to Working Interest Owners the right to use as much of the surface of the land within the Unit Area as may be reasonably necessary for Unit Operations; \\u215d \\u2021 \\u215c \\u00bb\\nConcerning the Railroad Commissions' order in issuing allowable to 160 acres, the substance of this alleged overt act is that since the unit acreage was less than 160 acres the unit allowable granted to appel-lees by the Railroad Commission was too large. The Supreme Court in Jones v. Kil-lingsworth held that there was no contractual relationship between appellants, and appellees whereby appellees could allocate any of the unit production to the Long Lease and maintain it in force. The Supreme Court expressly held: \\\"The orders of the Railroad Commission cannot compel pooling agreements that the parties themselves do not agree upon. The Railroad Commission has no power to determine property rights.\\\"\\nThe record is undisputed that Mobil was a purchaser of the unit oil. It was not a signatory to the Hunt West Poynor Unit agreement. It purchased the unit oil and its duty was to account to the true unit owners for their share in the unit oil purchase. Appellants have disclaimed any right to an accounting or for any loss of oil or gas owned by them from their lease.\\nAppellants claim that appellees told them that they would not allow appellants to obtain a permit to drill a well on appellants' land and that such is an issuable fact. Permits to drill wells in search of oil and gas are granted or denied by the Railroad Commission upon application. It is undisputed that appellants never made an application to the Railroad Commission for a permit to drill a well on their land during the period of January 1, 1961 to April 25, 1969. Title disputes do not prohibit the issuance of permits by the Railroad Commission. Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189 (1943).\\nFrom this review of the record we find no evidence of a civil conspiracy as defined by the Supreme Court. The act of appellees in entering into the Hunt-West Poynor Unit agreement was neither for an unlawful purpose nor to accomplish a lawful purpose by unlawful means. There is no evidence that appellants were injured by such act. They specifically withheld any claim for injuries or damages when they filed Jones v. Killingsworth. Moreover, by appellants' own acts and conduct, by their stipulations, ratifications, and specific grants, they are barred from asserting damages.\\nAppellees' defense of ratification has been established in this record, as a matter of law. After the unit was created, and prior to the filing of Jones v. Killings-worth, appellants were offered an opportunity to ratify the unit agreement but they refused. Appellants continued to refuse to become bound to any unit established by appellees until they first sought to ratify same in May 1966. During the trial of Jones v. Killingsworth appellants stipulated in the record that if they prevailed in this suit to recover the land they agreed to ratify the unit. Throughout the entire litigation appellants' position was that their land was not bound by the unit and that they claimed no money damages for the use or taking of oil, gas and minerals from the unit. The Supreme Court upheld their position. Thereafter appellants ratified and confirmed the unit agreement and became active participants in the same. By doing so they became bound to the unit venture fully as if they had joined in the original execution. Such was held by the Supreme Court in Montgomery v. Rittersbacher, 424 S.W.2d 210 (Tex.Sup.1968), in which a non-participating royalty owner filed suit to participate in lease production unitized by reason of an entirety clause in the lease. The court said that Montgomery could not recover royalties from the date of the first production from the lease but could recover from the date of his ratification and said that by such ratification Montgomery was as much bound by the unauthorized terms of the lease as if he had joined in the original execution thereof. See also our opinion in Leopard v. Stanolind Oil & Gas Co., 220 S.W.2d 259 (Tex.Civ.App., Dallas 1949, writ ref'd n. r. e.).\\nConcerning appellants' claim that they suffered damages by Mobil not suspending payment of unit benefits allocated for accounting convenience to the Long Lease until the title suit had been finally concluded, we are of the opinion that appellants by their own acts and conduct have become estopped to assert such contention. Appellants took the position in Jones v. Killingsworth that they were not bound by the terms of the unit agreement and that their original lease had terminated. The Supreme Court held that they were not bound and that in the absence of a contractual relationship between appellants and appellees the unit production, regardless of how allocated, was not effective to maintain the Long Lease in force beyond its primary term. Said the Supreme Court: \\\"Absent express authority, a lessee has no power to pool interests in the estate retained by the lessor with those of other lessors.\\\" Thus not being bound to the unit it mattered not how appellees operated the unit or how the unit oil might be allocated for accounting purposes by Mobil.\\n\\\"One who has successfully taken and maintained, either by pleading, admission, or agreement, a particular position in a ju dicial proceeding is estopped by the judgment therein from taking an inconsistent position in subsequent proceedings, such as an appeal or a retrial of the case, or another suit involving the same subject matter.\\\" 34 Tex.Jur.2d, Judgments, \\u00a7 349, pp. 480-481.\\nHaving disclaimed any right to the unit or its production in Jones v. Killingsworth, appellants are in no position to now say that the disposition made of the overall proceeds from the sale of the production of the unit well resulted in their damage.\\nWe agree with appellees' counterpoint that appellants' action in failing to present their claim for damages in the prior suit of Jones v. Killingsworth effectively bars appellants' present suit for damages because in both suits the relief sought is based upon the same alleged operative facts. In the first case appellants sought the relief of possession, title and removal of cloud cast upon the Long Lease. In the present suit, based upon the same operative facts, appellants seek the relief of damages for alleged civil conspiracy. The relief of damages was available in the trespass to try title action. Rule 783, T.R.C.P. and Rule 805, T.R.C.P.\\nThe principle of law condemning splitting of causes of action is stated in 34 Tex.Jur.2d, Judgments, \\u00a7 516, p. 592, as follows: \\\"A party will not be permitted to split a single and indivisible claim or demand so as to make it a basis for successive suits, and if he attempts to do so, the judgment in the first case decided will bar prosecution of the others, \\\"\\nIn 1884 our Supreme Court, in Nichols v. Dibrell, 61 Tex. 539, said it was settled that the decision of a court of competent jurisdiction is conclusive, not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case and which they might have decided. The court said: \\\" the plea of res judicata, applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.\\\"\\nTo the same effect see: Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (Tex.Sup.1894); Cole v. Wadsworth, 376 S.W.2d 13 (Tex.Civ.App., Tyler 1964, writ ref'd n. r. e.); and Ladd v. Ladd, 402 S.W.2d 940 (Tex.Civ.App., Amarillo 1966, writ ref'd n. r. e.).\\nAppellees specifically pled that appellants' cause of action was barred by the two year statute of limitations. Art. 5526, Vernon's Ann.Civ.St. of Texas. Ap-pellees contend that the summary judgment proof demonstrates that all of the material overt acts complained of by appellants were committed as far back as 1961 and were certainly known to appellants at the time they instituted their suit in Jones v. Killingsworth in February 1962. With such knowledge no suit for damages based on wrongful conspiracy was filed for more than six years. We agree with appellees that the statute of limitations has effectively barred appellants' cause of action. There is no merit in appellants' contention that the statute of limitations did not begin to run until the judgment of the Supreme Court in Jones v. Killingsworth decreeing title to the land. The trespass to try title judgment did not act to create a new liability or a cause of action. Such judgment merely confirmed that the Long Lease covering appellants' land terminated on August 16, 1961.\\nWe have carefully examined all of appellants' points of error and find all to be without merit so that they must be overruled.\\nJudgment of the trial court is affirmed.\\nThe exact nature of plaintiffs' action was judicially determined by the Court of Civil Appeals at Eastland in an appeal of the venue question presented. Hunt Oil Co. et al. v. Jones et vir, 436 S.W. 2d 186 (1968, writ dism'd).\"}"

tex/10160724.json

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+"{\"id\": \"10160724\", \"name\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee\", \"name_abbreviation\": \"Krieger v. Sheffield\", \"decision_date\": \"1960-11-19\", \"docket_number\": \"No. 3791\", \"first_page\": \"564\", \"last_page\": \"566\", \"citations\": \"341 S.W.2d 564\", \"volume\": \"341\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:41:10.481476+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee.\", \"head_matter\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee.\\nNo. 3791.\\nCourt of Civil Appeals of Texas. Waco.\\nNov. 19, 1960.\\nRehearing Denied Dec. 1, 1960.\\nRobert L. Sonfield, Houston, for appellant.\\nElledge & Urban, Geo. P. Murrin, Vinson, Elkins, Weems & Searls, Houston, for appellee.\", \"word_count\": \"793\", \"char_count\": \"4847\", \"text\": \"WILSON, Justice.\\nAppellee filed applications for writs of garnishment, alleging recovery of an unsatisfied judgment in a divorce case. Ap-pellee's assignor was appointed auditor in the divorce case, judgment in which fixed the reasonable cost of the audit and taxed the amount as costs of suit against appellant. Appellee filed an independent suit against appellant for recovery of this amount which was dismissed without prejudice. Appellant intervened in the garnishment proceedings, after garnishees admitted indebtedness to appellant, challenging issuance of the writs. His pleas and motions were overruled and judgment in garnishment was rendered for appellee.\\nAppellant's basic position is that since appellee \\u2014 appointed auditor in the divorce case under Rule 172, Texas Rules of Civil Procedure \\u2014 was not a party to the judgment in the divorce proceedings, the writ of garnishment is not available to him under the provisions of Art. 4076, Vernon's Ann.Tex.Stats., because he does not have \\\"a valid, subsisting judgment\\\" required by subdivision three thereof.\\nRule 172 provides that the court appointing an auditor shall award reasonable compensation \\\"to such auditor\\\", to be taxed as costs of suit. This provision is not materially unlike those in such examples as Rule 173, dealing with the fee of a guardian ad litem; Rules 244 and 759, concerning attorney's fees; and Rule 171 relating to masters in chancery. The fee is allowed \\\"as compensation for services rendered\\\", although taxed as costs. Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 96.\\nThis question is not free from doubt and has given us concern, but we are convinced appellant's contention must be sustained under this record. Ordinarily, processes to enforce collection of costs are available only in the names of parties \\\"and not in favor of officers in whose favor the costs have been adjudged.\\\" 15 Tex.Jur.2d Sec. 79, p. 94; 20 C.J.S. Costs \\u00a7 416, p. 654. The divorce judgment determined \\\"the reasonable cost of the audit\\\" and taxed it as costs of suit against appellant. The auditor is not designated as a party to the judgment, although his identity as the auditor appointed is shown by the judgment roll. The court had judicial knowledge of the existence and terms of the order appointing the auditor and the divorce judgment. King & King v. Porter, 113 Tex. 198, 252 S.W. 1022. This knowledge, however, does not make the auditor a \\\"party in whose favor the judgment was rendered.\\\" There is no award here \\\"to such auditor.\\\" To support a writ of garnishment the judgment in the main suit must be definite, final, and one upon which execution may issue. 20-B Tex. Jur., Sec. 42, p. 234. The clerk could not have properly issued an execution stating appellee's (or his assignor's) as the name of the party in whose favor the judgment was rendered as required by Rule 629. 18 Tex. Jur., Sec. 25, p. 559. No judgment was rendered in appellee's favor. This is not merely because the auditor was not named in the judgment. Had there been an award to the auditor, his identity might have been supplied. Laros v. Hartman, 152 Tex. 518, 260 S.W.2d 592, 594; Nicholson v. Mills, Tex.Civ.App., 227 S.W.2d 354, writ ref. He simply does not have a \\\"valid, subsisting judgment.\\\"\\nThe most liberal construction of the divorce judgment does not make the ancillary writ available to appellee, in our opinion, under Art. 4076, subd. 3. \\\"The remedy of garnishment is summary and harsh. [S]uch proceedings cannot be sustained unless they are in strict conformity with statutory requirements.\\\" Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042. The record shows only a judgment for costs in favor of plaintiff in the divorce judgment against defendant. We do not reach, nor imply opinion on the academic question of whether the writ would have been available to appellee had the judgment made an award to the auditor as provided by Rule 172, rather than merely fixing the amount and taxing it as costs.\\nThe judgment in garnishment is reversed and here rendered that appellee take nothing, and that garnishees are discharged. That portion of the judgment dismissing appellant's cross-action, however, is reversed and to such extent the cause remanded for further proceedings not inconsistent herewith on appellant's cross-action. Costs on appeal and in the trial court are taxed against appellee. The clerk of the trial court is directed to deliver any sums paid into the registry of the court by garnishees, under the judgment, to the garnishees so paying such sums.\"}"

tex/10161902.json

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+"{\"id\": \"10161902\", \"name\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees\", \"name_abbreviation\": \"Fisher Construction Co. v. Riggs\", \"decision_date\": \"1959-01-08\", \"docket_number\": \"No. 13334\", \"first_page\": \"200\", \"last_page\": \"211\", \"citations\": \"320 S.W.2d 200\", \"volume\": \"320\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:05:51.703582+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.\", \"head_matter\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.\\nNo. 13334.\\nCourt of Civil Appeals of Texas. Houston.\\nJan. 8, 1959.\\nRehearing Denied Jan. 29, 1959.\\nDyess, Dyess & Prewett, Arthur D. Dyess, Jr., Houston, for appellant B. B. Bettell' & Son, Inc.\\nMcGregor, Sewell & Junell, William L. Bowers, Jr., Houston, for appellant Fisher Const. Co.\\nStanley F. Swenson, Houston, for appel-lee Riggs.\\nCarey Williams, Houston, for intervenor I. C. T. Ins. Co.\", \"word_count\": \"6118\", \"char_count\": \"35838\", \"text\": \"WERLEIN, Justice.\\nAppellee, Robert E. Riggs, brought this suit for personal injuries sustained by him on August IS, 1955, when he hopped or jumped through a plate-glass window in an unfinished store space, a part of the Palm Center Shopping Center in the City of Houston, then in the process of construction. Appellant Fisher Construction Company, hereinafter referred to as Fisher, was the general contractor for the shopping center project consisting of some 42 stores covering approximately 6 acres of buildings. Appellant, B. B. Bettell and Son, Inc., hereinafter referred to as Bettell, was the painting contractor on the project, and appellee was a painter in the employ of Bettell. I. C. T. Insurance Company, carrier of workmen's compensation insurance on employees of Bettell, intervened. Fisher filed its third-party action against Bet-tell, basing such third-party action on an indemnity agreement entered into between them.\\nThe court entered judgment on the verdict of the jury in favor of appellee in the sum of $20,010, out of which $4,099.45 was decreed to the intervenor. It was further ordered and decreed that Fisher recover over against Bettell judgment for the sum of $850 attorney's fees and expenses incurred, plus such sums as Fisher may ultimately be required to pay appellee.\\nBettell's brief asserting 11 Points of error is adopted by Fisher with the exception of Points 10 and 11 relating to the indemnity agreement in answer to which Fisher has filed a separate brief.\\nWe shall first consider appellee's motion to dismiss this appeal or to require new cost and supersedeas bonds with two sureties. The supersedeas bond was executed by Bettell as principal and Fidelity & Deposit Company of Maryland as surety. The cost bond was executed by Fisher as principal and the Employers' Liability Assurance Corporation, Ltd., as surety.\\nArticles 7.01 and 7.02 of the Insurance Code of Texas, permitting private corporations to act as surety and requiring only one corporate surety, were repealed by act of the 55th Legislature, effective ninety days after May 23, 1957. In repealing such articles, the Legislature failed to enact any law in lieu thereof. Hence there is no statutory provision authorizing surety com- pa\\u00f1\\u00edes to execute bonds in judicial proceedings other than in prohate matters and certain proceedings not here pertinent, nor is there any statutory requirement that an appeal or supersedeas bond be executed by two sureties.\\nAppellants assert that appellee's motion to dismiss was not timely filed, under Rule 404, Texas Rules of Civil Procedure, since it was not filed within thirty days after filing of the transcript in this Court. We are of the opinion that appellee has waived the right to object to the sufficiency of the ap-. peal bond, but agree with the decision in Berry v. Curtis, 154 Tex.Civ.R. 579, 227 S.W.2d 396, no writ history, holding that Rule 404 does not apply to a supersedeas bond in view of the language of Rules 364 to 368. In any event, Rule 365 gives this Court the authority to review such bond and to require an additional bond upon a proper showing of insufficiency. See also Rule 430, T.R.C.P.\\nRule 354, T.R.C.P., covering cost bonds on appeal, provides that the appellant \\\"shall execute a bond to be approved, by the clerk.\\\" This rule also provides, \\\"Each surety on the bond shall give his post-office address.\\\" Appellee asserts that this last sentence implies the-necessity for more than one surety on the bond. Rule 354 does not so state, nor does the sentence quoted so imply. Whether there is one surety or more, each surety must give his postoffice address.\\nRule 364, T.R.C.P., relative to super-' sedeas bonds, provides only for \\\"a good and sufficient bond to be approved by the clerk,\\\" and does not specify the number of sureties.\\nThe Supreme Court, in Ex parte Wrather, 139 Tex. 47, 161 S.W.2d 774, 775, in which one of two personal sureties was financially able to pay the amount of the bond in the event of default, stated:\\n\\\"Rule 364 merely prescribes that an appellant must give 'a good and sufficient bond to be approved by the clerk.' Therefore, if one of the bondsmen was actually sufficient surety, and the clerk was willing to accept the bond, this made a 'good and sufficient bond,' and met the requirements of the rule.\\\"\\nFor a discussion of the history of various statutes and requirements with respect to bonds, .see Universal Automobile Ins. Co. v. Culberson, Tex.Civ.App., 51 S.W.2d 1071, 1072, no writ history, in which case the court stated:\\n\\\"The sole purpose of requiring an appeal or supersedeas bond must therefore necessarily be to furnish security to the appellee in addition to the personal responsibility of the appellant. Automobile Insurance Co. v. Teague (Tex.Com.App.), 32 S.W.(2d) 824, We therefore conclude that the, 'good and sufficient' supersedeas bond required by said article 2270 is one signed by a solvent surety or sureties ap-. proved by the clerk.\\\"\\nRule 364 supersedes'Article 2270.\\nSee also Pinkston v. Victoria Bank & Trust Company, Tex.Civ.App., 210 S.W.2d 612, 613, no writ history, where the court said:\\n\\\"When a district clerk is called upon to approve a bond as to its financial sufficiency he performs more than a ministerial duty, he is called upon to exercise discretion, his act becomes a quasi judicial one 'and his decision is conclusive in an administrative sense. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148.\\\"\\nAppellee does not contend that the sureties on the bonds in question are not au-, thorized to write bonds and do business in this State or that they.are not thoroughly solvent. Each'of the bonds appears to have been executed by the attorney-in-fact, respectively, of each surety. We are of the opinion that the bonds are sufficient and that it is not necessary for either bond to have been executed -by more than one surety. Appellee's motion is overruled.\\nAppellants' first two Points are that the trial court erred in overruling appellants' motion for an instructed verdict on the ground that appellee occupied the status of licensee on the premises at the time and place he received his injury, and that under the undisputed evidence there was no breach of any legal duty on the part of appellants with respect to appellee.\\nAppellee had been working on the Palm Center Shopping Center as a painter for Bettell approximately 10 days before the date of his injury. His first work had been spraying, and then on Saturday preceding the Monday when he was injured he had handled rollers and brushes in some of the stores where he had been painting. On the morning of the accident appellee had painted four or five rear doors to store spaces, having been assigned to such job. He testified that in painting the back door of the store space to be occupied by Napko, he observed that it had been painted on the inside also, and he therefore started through the building to see his foreman to find out whether he should paint the inside of the back doors of the other stores. He noticed the foreman passing in front of such store space. Failing to attract his attention, he undertook to overtake him. At such time appellee was about 20 or 30 feet from the front of the store space which was 40 feet in depth. He had paint on his hands and his clothes and for that reason undertook to step through what he thought was an open space to his right of the door, rather than use the door and get paint on it. He testified that he just sort of ran or walked fast and jumped over the bulkhead which was about one foot high. He never saw the plate-glass before he hit it and did not know it had been installed. There is no evidence indicating that the accident would have been avoided had appellee approached the glass more slowly.\\nAt such time a painter was painting inside the store space. Decorative wallpaper had already been hung but appellee testified he did not notice it. He was in a hurry to catch his foreman and get instructions as to his work. There were between 9 and 17 glaziers still working on the project and at least 12 painters. Some time prior to the accident, plate-glass had been installed in the front window of the Napko Paint Store space. When installed it was marked with large pieces of paper taped on with masking tape. Prior to the accident Fisher directed that such markings be removed and the plate-glass cleaned. Mr. Fisher, part owner of Fisher Construction Company, testified that the opening of .the Center was to be on September 1, 1955, and that a great deal of work remained to be done. He further testified that construction workers frequently use the openings where plate-glass windows are to be installed as an opening to pass through, and that one of the purposes of having tape and stickers on plate-glass is that it makes the glass easier to see so that it won't be broken by workmen carrying objects. At the time of the accident the plate-glass was unguarded, unmarked, highly polished and spotlessly clean.\\nMr. Fisher testified that he was sure the tenants were \\\"pushing us to get out of their way so they could complete their work in time for the opening.\\\" That morning the painting foreman had given his men a pep talk. He testified that if any of his men had questions concerning the work he would want them to hurry up and find out what it was they needed to have answered. Appellants' Exhibit No. 1, taken on August 26, 1955, indicates that 11 days after the accident there was still painting going on in front of the Napko store space.\\nThe testimony was undisputed that it was common practice for construction workers to use window openings as a means of ingress and egress to and from buildings in the course of construction. Appellee had used such openings at the Palm Center project before his injury.\\nRalph V. Barr, an experienced glazier, testified that he always marked newly installed windows for the purpose of keeping people from walking through them or throwing anything through them. Jesse Feagin, painting contractor, when asked why they put the tags or markings on the, windows, testified, \\\"The only thing I could see was to keep someone from running through it.\\\"\\nAppellee testified that in his experience he had never worked on a job where the plate-glass panels were completely cleaned up before other workmen had finished their jobs. McDaniels, a painter of 20 years' experience, stated that it was not customary for plate-glass windows to be cleaned up before painters have completed their work. Albert Atchison, a painter for 45 years, testified that it was not customary for windows on jobs such as those in question to be cleaned up and have markings removed before the painters leave the job. Painting contractor Jesse Feagin testified that in shopping center work window cleaners are the last craft on the job. It is undisputed that there were no guard rails, signs, posters, or warnings of any kind indicating the presence of plate-glass in the windows.\\nWe do not agree with appellants' contention that since appellee had been assigned to paint the back doors of store spaces he had no business inside the store space to be occupied by Napko Paint Company. The fact that he was assigned to paint back doors or the outside of back doors would not tie him down to just that particular spot and prevent him from entering a store space, the back door of which he was painting, and through which he was taking a short cut to contact his foreman, and especially at a time when painting was going on in such unfinished store space and a painter and, according to some testimony, also a painter foreman, were therein. We think that appellee was a business invitee and not a mere licensee at the time of his injury.\\nUnquestionably a person may be an invitee as to certain parts of the premises but not as to others. See Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598. In that case, as also in the cases of Jameyson v. Farmers Gin Cooperative Association, Tex.Civ.App., 278 S.W.2d 169, no writ history; Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105; Texas Pacific Coal & Oil Co. v. Bridges, Tex.Civ.App., 110 S.W.2d 1248, writ dism.; and other cases cited by appellants, the injured party had gone or wandered to a part of the premises to which his invitation did not in any way expressly or impliedly extend. The cases relied upon by appellants are distinguishable from the present case in that in such cases the defendant could not reasonably have anticipated, in the exercise of ordinary care, that the injured party would have gone on the premises at the place where the injury occurred or used the premises for the purpose used at the time of injury. The case of McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, relied upon by appellants, is also clearly distinguishable in that in such case the plaintiff testified to his knowledge of the slick condition of the floor upon which he was working and fully appreciated the danger of working on such floor as he was doing.\\nIn the present case, Fisher might reasonably have anticipated, in the exercise of ordinary care, that appellee or some workman similarly situated would pass through the vacant store space on business of his employer, and that in doing so he might undertake to use what appeared to be an open window space or panel for egress, as was customarily done. It was not necessary that appellant should have anticipated the exact nature of appellee's injury or the precise manner of its infliction. It is sufficient that it might reasonably have anticipated consequences or an injury of the general nature of that which ensued. Texaco Country Club v. Wade, Tex.Civ.App., 163 S.W.2d 219, no writ history; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, and authorities cited.\\n. It is well settled that the duty owed by a general contractor, such as Fisher, to the employee of a subcontractor is similar to the duty owed by a landowner to business guests or invitees. The standard by which this duty is measured is that of reasonable care. McKee General Contractor v. Patterson, supra; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. The line of demarcation between a business invitee and a licensee is sometimes difficult to draw. In the instant case we think that appellee did not exceed the scope of his implied invitation in undertaking to go through the unfinished store space still in process of construction under the existing circumstances. If we assume, however, that he became a licensee upon entering the vacant store space, Fisher was under a duty not to injure him by its active negligence. Houston Belt & Terminal Ry. Co. v. O'Leary, Tex.Civ.App., 136 S.W. 601, writ denied. Moreover, the duty devolves upon an owner to exercise reasonable care to safeguard a licensee from a new or hidden danger or peril that might exist or result from a changed condition. Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302.\\nIn the present case, Fisher knew that it was usual and customary for windows to be taped and marked when installed in order to make them easier to see, and also knew that it was customary and usual for workmen to use the open spaces where such windows were to be installed for ingress and egress. Notwithstanding such knowledge, Fisher authorized and directed the removal of the markings from the plate-glass and had it highly polished and spotlessly cleaned so that it could not be seen from inside the store space. This was done at a time when appellant knew that the work was going on and the construction was not completed, and at a time when Fisher might reasonably have anticipated that some workman, in the belief that the glass had not been placed therein, might step or hop or push some object through or against such window and be injured by shattered glass. Thus, appellant changed the existing condition from one that threatened no harm to one that became a hidden danger and a menace to workmen on the job, without taking any precautions whatever to protect such workmen against the hazard of encountering an invisible barrier of glass presenting the appearance of an open space.\\nWith the knowledge it had, Fisher was in an entirely different position from that of appellee who was not aware that the glass had been installed and the markers removed. We think, therefore, that under these circumstances fact issues were raised and Fisher was charged with the duty of permitting the markings and stickers to remain on the glass until the other work had been completed or placing some temporary markings thereon or in front thereof or giving some other warning of the presence of the plate-glass. Appellants' First and Second Points present a close question, but we have concluded they must be overruled:\\nAppellants' Third to Seventh Points, inclusive, briefed together, assert that the trial court erred in overruling appellants' motion for an instructed verdict because the conditions alleged to constitute negligence were open and obvious to ap-pellee, and he was guilty of contributory negligence under the undisputed evidence and is precluded from recovery under the principle of volenti non fit injuria, and' further because appellee failed to offer any evidence of negligence on the part of appellant constituting a proximate cause of his injuries, and the findings and answers of the jury to Special Issues Nos. 1, 3 and 11 were not supported by any evidence and the findings and answers to Special Issues Nos. 2, 4, 5, 7 and 9 were contrary to the overwhelming weight and preponderance of the evidence, and also because appellant could not have reasonably anticipated the occurrence in question.\\nAppellants contend that appellee knew that the window was designed for plate-glass which would rest on the masonry bulkhead approximately one foot high, and saw the framework of the glass door, although he did not see the vertical metal strip and thought there was only one solid sheet of glass when he went through same. He did not see the decorative wallpaper in place, although he admitted that he knew such paper is not hung until the building area involved is closed in.\\nWe think the testimony amply supports appellee's contention that he could not see the glass until he had gone through it, and that it was not an Open and obvious condition. At the time there were no light reflections or sunshine that possibly would have made the plate-glass visible. The glazier who installed the glass and who went inside the store space immediately after the injury, testified that you could tell the glass that was broken and could see the edges of it, but where it was not broken you could not see it. He further testified you could not tell whether it was there or not. Appellee's foreman O'Con-nor, who also entered the store space shortly after the accident, testified \\\"I could -easily see how this could happen as we could not see that there was any glass in those windows, I could hardly tell there was glass in the one that Riggs went through except that there was some ragged edges around the frame. I mean that I could not tell that there was glass in them or not.\\\"\\nTrue, appellee knew that the door had been installed, but the doors and windows were not always contemporaneously installed or glazed. Had he seen the upright aluminum bar, which he testified he did not notice, he still would not have been warned that there was any glass that had been placed in the opening because the glass frequently was not installed until days after such bars were put in place. It is not difficult to see why appellee, undertaking to -overtake his foreman, did not look up or notice the wallpaper that had been installed. His attention was directed to the task at hand. He would normally rely upon his experience that the last craft on the job were the window cleaners and that the windows would not be cleaned while the painting in the store space was being done.\\nThe cases of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, and Fergeson v. National Bank of Commerce, Tex.Civ.App., 174 S.W.2d 1015, no writ history, relied on by appellant, involved injuries to business invitees resulting from slipping on stairs with which they were familiar, the conditions complained of being as open and obvious to them, as to the owners. Appellant also relies upon A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused. In that case the plaintiff, a customer, walked in through the grillwork doors. He saw the plate-glass window adjacent to the grillwork doors and knew that it was a window. In leaving the premises he first looked up and he saw the same doors through which he had entered, and then he dropped his head when about 20 feet from the doors and continued to walk with his head down, never looking up until he crashed through the window. In the instant case there is no evidence that appellee had ever passed through the door or had ever been in front on the outside of this particular store space where he might have seen the glass. The Stasny case and also Acme Laundry Company v. Ford, Tex.Civ.App., 284 S.W.2d 745, writ ref., n. r. e., in which latter case a customer went into a laundry and in walking out stepped through a glass panel which he thought was a doorway, are clearly distinguishable from' the present case. In each of those cases the injured party knew of the presence of the plate-glass into which he walked, and the defendant was an established, open and operating business. In Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, writ ref., the plaintiff tripped over a cement slab approximately \\u00be inch in elevation. Plaintiff had been in the same building, and had entered at the same entrance on many occasions, and the slab was open and obvious. In the instant case the plate-glass, under the lighting and atmospheric conditions there existing with no sunshine or light reflections, was not visible and hence not an open and obvious condition.\\nWe do not think that the doctrine of volenti non fit injuria has any application in the instant case. There is nothing to show that appellee ever noticed or that he could possibly have seen the window glass through which he jumped or hopped. In Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 64, our Supreme Court through Justice Calvert stated:\\n\\\"A plaintiff's right to recover cannot be defeated on the theory that he assumed the risk of injury under the doctrine of volenti non fit injuria unless it appears that with full knowledge of the nature and extent of the danger involved he put himself in the way of the particular risk involved as the result of an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172.\\\"\\nWe cannot agree with appellant that ap-pellee was guilty of contributory negligence as a matter of law and that the findings of the jury are not supported by any evidence or that they are against the great weight and preponderance of the evidence. The fundamental principle of appellate review is that the record must be viewed in the light most favorably in support of the judgment of the trial court and the jury verdict. Whether plaintiff has exercised due care is ordinarily a question of fact for the jury. See Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, writ ref., n. r. e. This Court, in considering the sufficiency of the evidence, must disregard all evidence adverse to the findings of the jury and consider only th\\u00e9 evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold the same. Chesshir v. Nall, Tex.Civ.App., 218 S.W.2d 248, writ ref., n. r. e. See also Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365. In Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, 334, the court held that the failure to look for an oncoming train at the proper moment was not contributory negligence as a matter of law. The court stated:\\n\\\"But the legal test is, not what the traveler could have done had he used his senses, but what an ordinarily prudent person would have done under the particular circumstances. Hence the courts have held that the failure to look and listen before going upon a railway track is not, as a matter of law, contributory negligence.\\\"\\nTo Issues submitted, the jury found that the act of Fisher in having the markings removed from the plate-glass windows of the Napko Paint Store, when they were so removed, constituted negligence, and also that its failure to place a guard-rail or markings on or by the plate-glass windows in question after being cleaned, was negligence, and that each of such grounds of negligence was a proximate cause of the accident in question. The jury further found that appellee's act of jumping over the bulkhead rather than stepping over it was not negligence, and that he did not fail to keep such a lookout ahead in the direction he was going as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and that his failure to use the door in going out of the store was not negligence. The jury also found that the plate-glass front on the Napko store was not an open and obvious condition to one situated as was the plaintiff inside the store at the time and place in question, exercising ordinary care, and that the occurrence in question was not an unavoidable accident.\\nWe have carefully reviewed the statement of facts and authorities, and have concluded that the court did not err in overruling appellants' amended motion for new trial and in refusing to instruct a verdict, and that the jury's findings are supported by ample evidence, and that the same are not against the great weight and preponderance of the evidence.\\nAppellants' Eighth Point presents the proposition that the court erred in admitting in evidence testimony showing or tending to show that subsequent to the accident in question, Fisher placed paper tape marking's back on the plate-glass windows, over the objection that such evidence was not admissible and was prejudicial and inflammatory.\\nMr. Fisher was asked whether the windows in question could not \\\"have been washed the following day when it was absolutely certain that all the painting was through in that building.\\\" He answered:\\n\\\"If we had been building only a Napko 25-foot wide store, we might have cleaned the windows somewhat later. But since Napko was one space of a very large project, it was impossible to have sufficient manpower to perform the window washing operation at the very last minute and still be able to finish the entire work.\\\"\\nHe also testified:\\n\\\"Not from convenience or ecomomy, because we wouldn't have paid any more to wash them. But it' was the physical impossibility to leave all of the window cleaning to be done on the last day.\\\"\\nIt then devolved upon appellee to show that it would not have been physically impossible or impractical to have cleaned the windows if the cleaning and removal of the stickers or tape had been left till after the painting had been finished and the store space completed. The testimony was not introduced as an admission by Fisher that it was negligent, but in rebuttal of the testimony of Mr. Fisher. It could have been limited to such purpose. Appellants, however, did not request that the testimony be limited.\\nThe applicable rule and exceptions thereto are set out in Vol. 2, McCormick and Ray, Texas Law of Evidence, Sec. 1151, page 42. See also St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S.W. 104; Texas-Midland Ry. Co. v. Truss, Tex.Civ.App., 186 S.W. 249, writ ref.; Houston Lighting and Power Co. v. Taber, Tex.Civ.App., 221 S.W.2d 339, writ ref., n. r. e.; St. Louis & S. F. Ry. Co. v. George, 85 Tex. 150, 19 S.W. 1036; Fordyce v. Moore, Tex.Civ.App., 22 S.W. 235, no writ history.\\nIn Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 105, the Court said:\\n\\\"The rule [against admission of evidence of subsequent precautions to prove negligence] is largely one of policy and good sense to avoid discouraging safety measures, but is inapplicable where the evidence would be valid as to other issues which also exist in the case.\\\"\\nFurther, it is the duty of the party objecting to the introduction of evidence which is.admissible for one purpose but not for another, to request the court to limit the purpose for which it might be considered, and failing to do so, he may not be heard to complain that the jury may have considered the evidence for other purposes. 17 Tex.Jur. 361, 362, Evidence, Civil Cases, Sec. 122, and cases cited.\\nAppellants' Ninth Point of Error is to the effect that the court erred in sustaining appellee's objection to the testimony of Mr. Fisher, in substance that he could see the plate-glass in other stores from within such stores after it had been cleaned, and also erred in sustaining ap-pellee's motion to strike such testimony because it was admissible to show appellant was not aware of any hazard existing at the time and place of appellee's injury, and also to show that prior to appellee's injury the windows in the shopping center were being washed and cleaned and that appellee in the exercise of his normal _senses should have known of such fact.\\nMr. Fisher testified that he did not recall being in the store in question. There is nothing to show that appellee knew anything about the windows in other stores of the project or the cleaning and polishing thereof. True, it was shown by appellants that the glass in windows of the vari ous stores was substantially the same size and shape and had been washed in the same manner. There is no testimony, however, as to the presence or absence of similar fixtures or painting or obj ects within the store or that the conditions of the store in question and other stores with respect to possible reflections and shadows and outside structures were the same or that weather conditions were substantially the same. In Panhandle & S. F. Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347, 351, error ref., the plaintiff sued for damages for the death of a child struck by a train. There was testimony that tests had been made by several different persons as to the distance a child might be seen on the track at the place in question. The testimony was admitted. The court stated:\\n\\\"The decision of the preliminary question as to whether the conditions are so substantially similar as to authorize the introduction of the evidence is necessarily for the trial court and he has considerable latitude of discretion in deciding it.\\\"\\nIn the instant case there are numerous facts which may have resulted in dissimilar conditions existing at the time of the accident in question and the time when Mr. Fisher made his observations of other store windows, and also dissimilar conditions with respect to the stores that might have affected visibility of the plate-glass. Under the circumstances, we do not think that the court erred in striking such testimony. See Long v. Galveston Electric Co., Tex.Civ.App., 59 S.W.2d 228, error dism.; Bonner v. Mercantile National Bank of Dallas, Tex.Civ.App., 203 S.W.2d 780, ref., n. r. e.\\nThe case of Team v. Texas & Pacific Ry. Co., Tex.Civ.App., 199 S.W.2d 274, ref., n. r. e., is readily distinguishable in that two engines practically identical in their construction and operation are so similar that testimony concerning the operation of one would necessarily have an evidential bearing upon the operation of the other.\\nBy its Points 10 and 11 Bettell contends that the Court erred in holding that the indemnity agreement between Fisher and Bettell requires Bettell to reimburse Fisher for all sums paid to satisfy the judgment in favor of appellee, contending that appellee's cause of action did not grow out of the work to be performed by Bettell under the sub-contract, and also that such indemnity agreement does not require Bettell to pay attorney's fees incurred by Fisher.\\nThe applicable clause in the sub-contract is as follows:\\n\\\"XVIII. Sub-Contractor shall protect, indemnify and save the Contractor harmless against any and all claims, demands and causes of action of every kind and character arising in favor of any person, including both Contractor's and Sub-Contractor's employees, on account of personal injuries or death, or damages to property occurring, growing out of, incident to, or resulting directly or indirectly from, the work to be performed by Sub-Contractor hereunder, whether such loss, damage, injury or liability arises from or is contributed to by the negligence of the Contractor or his employees, and whether due to imperfections of any material furnished by the Contractor, or the premises themselves or any equipment thereon, whether latent or patent, or for other causes whatsoever; and for damages for infringement of any patent growing out of or incident to SubContractor's performance of said work or the use of material or equipment furnished by the Sub-Contractor.\\\"\\nWe think the indemnity agreement is broad enough to include not only reimbursement of any amounts that Fisher is required to pay under the judgment, but also reasonable attorney's fees and expenses which were stipulated to be in the sum of $850. Bettell undertook to protect and indemnify Fisher against causes of action of every kind and character growing out of, incident to, or resulting directly or indirectly from the work to he performed by such sub-contractor. Appellee's cause of action unquestionably grew out of and is incident to work that was to be performed by Bet-tell. At the time of the accident appellee, was undertaking to obtain instructions ' in furtherance of Bettell's work.\\nThis case is distinguishable from Employer's Casualty Co. v. Howard P. Foley Co., 5 Cir., 1955, 158 F.2d 363, relied upon by Bettell. In that case the indemnity clause was not as broad as in the present case and at the time of the injury the employee was doing nothing in performance of his employer's contract.\\nThe rule of strict construction of indemnity contracts relied upon by Bet-ted applies only after the intention of the parties has been determined by applying the same rules of construction as are applied to other contracts. Mitchell's, Inc. v. Friedman, Tex.Sup., 303 S.W.2d 775. Unless the indemnity agreement in question covers reasonable attorney's fees and expenses of defending the cause of action, Fisher would not be fully protected, indemnified and saved harmless. The expenses of litigating a claim indemnified against may be recovered whether the right of indemnity is implied by law or arises by implication. See Sigmond Rothschild Co. v. Moore, 166 S.W.2d 744, writ ref,, w. m., in which the court quoted from 27 Amer. Jur., p. 474, the following:\\n\\\"Reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses when an action is brought to recover indemnity either upon a right of indemnity implied by law or arising under a contract.\\\"\\nSee also Price v. Steves, Tex.Civ.App., 175 S.W.2d 450, writ ref., w. m. The case of Rublee v. Stevenson, Tex.Civ.App., 161 S.W.2d 528, cited by Bettell, is clearly distinguishable.\\nBettell's Points of Error are overruled and the judgment of the trial court is affirmed.\"}"

tex/10162611.json

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+"{\"id\": \"10162611\", \"name\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee\", \"name_abbreviation\": \"Nealy v. Fidelity Union Life Insurance Co.\", \"decision_date\": \"1964-02-28\", \"docket_number\": \"No. 16314\", \"first_page\": \"401\", \"last_page\": \"406\", \"citations\": \"376 S.W.2d 401\", \"volume\": \"376\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:52:24.396351+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.\", \"head_matter\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.\\nNo. 16314.\\nCourt of Civil Appeals of Texas. Dallas.\\nFeb. 28, 1964.\\nLocke, Purnell, Boren, Laney & Neely and John D. Crawford, Dallas, for appellants.\\nJackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for appellee.\", \"word_count\": \"3082\", \"char_count\": \"17840\", \"text\": \"WILLIAMS, Justice.\\nWrongful death action. Article 4671 et seq., Vernon's Ann.Civ.St., and Art. 16, \\u00a7 26, Vernon's Annotated Constitution of the State of Texas. On May 5th, 1961 Willie Fred Nealy was shot and killed by Earl S. Swinney, an armed guard, in the lobby of the Fidelity Union Life Insurance Company Building in the City of Dallas, Texas. This action was instituted by the surviving wife and minor children of the deceased, seeking actual and exemplary damages against both Fidelity Union Life Insurance Company and Earl S. Swinney, who was alleged to have been acting within the course and scope of his employment for such company. The defendant Swinney, though duly served, filed no answer but appeared in person and participated in the trial of the case. The trial was before a jury and at the conclusion of the evidence the court submitted the case on special issues. In response to these issues the jury found (1) that the action of Swinney in shooting the deceased, Nealy, was not wrongful; (2) that the action of Swinney in shooting Nealy did not grow out of the performance by Swinney of his duties as an employee of the defendant Fidelity Union Life Insurance Company; (3) that the defendant Fidelity Union Life Insurance Company failed to properly train Swinney as an armed guard; (4) that such failure was negligence; (5) that such negligence was a proximate cause of the death of Nealy; (6) that at the time the defendant Fidelity Union Life Insurance Company hired Swinney he was not an unfit person for the duties entrusted to him as an armed guard; (9) that the act of Swinney in shooting Nealy was performed as a resentment of insult, or the furtherance of personal animosity of Swinney towards Nealy; (10) that the actual damages sustained by the widow as a result of the death of her husband was $1,500; (.11) that the minor children sustained actual damages in the sum of $6,300 as a result of the death of their father; and (12) no exemplary damages should be paid by the defendant Fidelity Union Life Insurance Company.\\nThe trial court, upon motion of the defendant Fidelity Union Life Insurance Company set aside and disregarded the answers of the jury to Special Issues 3, 4, and 5, noted above, and rendered judgment that plaintiffs take nothing against either of the defendants. From this judgment plaintiffs appeal, assigning twelve points of error. We find no reversible error reflected in this record and therefore affirm the judgment of the trial court.\\nBy their first point of error appellants complain of the action of the trial court in refusing to grant them judgment against the defendant Swinney who, though being duly served, failed to file an answer. Rule 240, Texas Rules of Civil Procedure provides that where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others. Appellants did not request the court to award to them an interlocutory default judgment against the non-answering defendant Swinney, but proceeded to trial in the ordinary fashion. The record reveals that Swinney appeared in person and participated in the trial of the lawsuit, though not represented by an attorney. He was called by appellants to testify as an adverse party. Appellants' failure to demand an interlocutory default judgment against Swinney was acknowledged by appellants' attorney during the trial of the case. The case was submitted to the jury on issues relating both to Swinney and to the corporate defendant. The judgment recites that though Swinney was duly served, he did not file an answer, but did appear in person, though not represented by counsel. Under the peculiar circumstances evident in this record we are of the opinion that appellants waived their right to demand a default judgment against Swinney.\\nIn 33 Tex.Jur.2d, \\u00a7 126, Page 647, the rule is announced:\\n\\\"By proceeding to trial without taking advantage of the defendant's failure to answer the plaintiff waives his right to a default judgment.\\\"\\nOur court had occasion to review the authorities on this question in Foster v. L. M. S. Development Co., Tex.Civ.App., 346 S.W.2d 387, wherein Chief Justice Dixon, speaking for this court, said:\\n\\\"Smith in person appeared, participated in the trial as a party, and gave his testimony. Even if no written answer of any kind had been filed in his behalf, appellants under the circumstances have waived their right to take advantage of his failure to file a written answer. Shaw v. Whitfield, Tev.Civ.App., 35 S.W.2d 1115; Guaranty State Bank v. Brill, Tex.Civ.App., 268 S.W. 260, 265; W. T. Rawleigh Medical Co. v. Mayberry, Tex.Civ.App., 193 S.W. 199; Rules 67 and 90, Texas Rules of Civil Procedure; 25 Tex.Jur. 393 and 401.\\\"\\nHaving proceeded to trial without requesting an interlocutory default judgment, appellants impliedly consented to the procedure followed by the trial court, both in the introduction of evidence and the submission of issues to the jury, and hence any right to a default judgment was waived.\\nBy their second and third points appellants contend that even though the jury found that the shooting of Nealy by Swin-ney was not wrongful and that Swinney was not acting in the course of his employment for the corporate defendant at the time he shot Nealy, the court should have awarded appellants judgment against appellee, Fidelity Union Life Insurance Company, based upon the jury's finding in response to Special Issues Nos. 3, 4, and 5 to the effect that such corporate defendant was negligent in failing to properly train its armed guard, Swinney, and that such negligence was a proximate cause of Nealy's death. They argue that the court was not justified in setting aside and disregarding the jury's answers to Issues 3, 4 and 5 in that even though the servant may be excused from liability the corporate master may be legally held liable for its failure to perform a non-delegable duty. Kirby Lumber Co. v. Chambers, 41 Tex.Civ.App. 632, 95 S.W. 607; Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S.W. 126, 26 L.R.A. 250; American Express Co. v. Parcarello, Tex.Civ.App., 162 S.W. 926; Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, and Restatement of the Law of Torts and Negligence, Vol. 2, \\u00a7 317 and 392.\\nThe record contains testimony to the effect that at the time Swinney was employed by the Fidelity Union Life Insurance Company he was not given any special training as an armed guard. Even so we are of the opinion that the action of the trial court in setting aside and disregarding Issues 3, 4 and 5 was proper and that appellants' contention must be overruled for several reasons. First, we agree with ap-pellee that Special Issues 3, 4 and 5 are immaterial under the facts of this record and the answers of the jury to such issues cannot support a judgment for appellants. The controlling issue, No. 3, inquired as to whether \\\"defendant failed to properly train Earl Swinney as an armed guard.\\\" The testimony reveals that Swinney had been employed by the insurance company for eight years prior to the date of the shooting. The inquiry, therefore, concerned some failure on the part of the company to do something many years prior to the incident made the basis of this litigation. Moreover, the issue inquired as to Swinney's training as an armed guard and it necessarily follows that the act complained of by appellants against Swinney would have to flow from his act as \\\"an armed guard.\\\" The jury found that Swinney was not acting as an armed guard at the time he killed Nealy. The jury further found that Swinney was not acting wrongfully when he killed Nealy. Therefore, it is obvious that the jury finding concerning some failure on the part of the corporation to train Swinney as an armed guard becomes wholly immaterial inasmuch as the alleged wrongful act did not flow from any action on the part of Swinney while performing the duties as an armed guard. There is no evidence in this record \\u2022of any other act committed by Swinney which would convey notice to the employer as to his alleged inefficiency as an armed guard. This fact added to the immateriality of the issues complained of, as reflected in the case cited by appellants, Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, wherein the United States Supreme Court said:\\n\\\" negligence on the part of the company in failing to prevent the act could not probably be shown by proof of a single act of that kind, even though damage resulted, where there was nothing to show the company had any reason to suppose the act would be \\u2022committed. Negligence on the part of the company is the basis of its liability, \\u2022and the mere failure to prevent a single .and dangerous act, as above stated, would not prove its existence.\\\"\\nSee also Walton v. New York Central Sleeping Car Co., 139 Mass. 556, 2 N.E. 101, and Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101, 66 S.W.2d 997. Such issues being immaterial to the ultimate liability of the corporate defendant, the trial court was justified in disregarding same. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497; 41-B Tex.Jur., \\u00a7 589.\\nAnother obvious reason why the trial court's action was correct is that even if it could be argued that Issues 3, 4 and 5 were material yet there is no evidence in this record to support the answer of the jury to Special Issue No. 5 to the effect that the failure to properly train Swinney as an armed guard was a proximate cause of Nealy's death. Even if it could be said that appellee owed a duty to properly train Swinney as an armed guard and that its failure to do so was negligence, yet such negligence could not, as a matter of law, be a proximate cause of Nealy's death unless the consequence of the negligence was reasonably foreseeable by the appellee. In Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400, we had occasion to review the case and to reiterate the rule that a party is only responsible for a consequence which is probable according to ordinary and usual experience. See also 17 Tex.Jur.2d \\u00a7 14, \\\"Death by Wrongful Act\\\"; Hill v. Sabine Pipe & Supply Co., Tex.Civ.App., 272 S.W.2d 769. Moreover, it appears affirmatively in this case that a new and independent cause, in the form of Nealy's act and conduct, which will be hereinafter more fully discussed, intervened to destroy the causal connection between any negligence on the part of the employer and the ultimate act resulting in Nealy's death. For a review of the authorities dealing with this point see our opinion in Compton v. American Airlines, Inc., Tex.Civ.App., 348 S.W.2d 427; 40 Tex.Jur.2d, \\\"Negligence\\\", \\u00a7 27 and 28.\\nInasmuch as appellants' remaining points, 5 through 12 inclusive, are \\\"no evidence\\\" or \\\"insufficient evidence\\\" points assailing the jury's answers to Issues 1, 2 and 9, thereby requiring us to give careful consideration to the testimony as a whole, we deem it desirable to set forth the essential portions of such testimony dealing with these issues.\\nWillie Fred Nealy, prior to May 5, 1961, was an employee of the Fidelity Union Life Insurance Company as a porter. He had drawn his pay check just prior to the shooting on May 5, 1961 and there is evidence that he was no longer an employee at that time. Earl S. Swinney was an employee of Fidelity Union Life Insurance Company as an armed guard, having held that position for eight years prior to May 5, 1961, and on the night of that date he was stationed in the lobby of the Fidelity Union Building performing his duties as such guard. Swinney was sixty-one years of age, five feet six inches in height, and weighed approximately 135 pounds. He had been disabled and was drawing twenty percent government disability due to an arthritic spine. His spine was stiffened or ossified and he also suffered pain in his left arm and shoulder for which he received treatment from time to time. His disability resulted in his inability to stand completely erect. Nealy was twenty-nine years of age, six feet tall, and weighed 185 to 190 pounds. He had an athletic build and was in good health. The shooting occurred in the lobby of the Fidelity Union Building. Swinney testified that he first saw Nealy around six P.M. when he took Nealy to the basement in the elevator. The next time he saw him Nealy was standing near a buffer in the hall near the lobby and at that time was loud and boisterous and using vulgar language. Swinney testified that he asked Nealy to quit using the filthy language and Nealy disappeared but later returned to the lobby where he again used loud, vulgar and profane language. Swinney again warned him about his conduct and Nealy disappeared but again returned to the lobby using profane and loud language and demanded that Swinney get his hat from a closet. Swinney went with Nealy to a wire closet, unlocked the door, and obtained Nealy's hat from the closet. While in the closet Nealy struck Swinney and knocked him against the wall. Swinney apparently tried to get away from Nealy and went up the hallway but Nealy followed him and grabbed him, dragging him out to the main lobby of the building. Swinney testified:\\n\\\"Question: All right, then, you both turned and walked together; was he on your right or on your left?\\n\\\"Answer: He was on my left.\\n\\\"Question: All right, he would be on this side? (indicating). Now, let's walk straight down; we are going down the hall, now, and you walked here with him, Mr. Swinney (indicating) ; were any words spoken as you walked down that hall ?\\n\\\"Answer: He said, 'Give me my God damned hat.' \\\"\\n\\n\\\"Question: All right, and you unlocked the door ?\\n\\\"Answer: Unlocked the door \\u2014 when I unlocked it, he hit me and knocked me against that back wall.\\n\\\"Question: When you unlocked it?\\n\\\"Answer: Yes.\\n\\\"Question: And then did he reach in and get his hat?\\n\\\"Answer: He got his hat with one hand and grabbed me and dragged me halfway up that corridor.\\\"\\nsjc\\n\\\"Question: Did he grab you halfway up the corridor?\\n\\\"Answer: Yes, after he got me against the wall, he grabbed me again and dragged me both.\\n\\\"Question: Out to the main lobby ?\\n\\\"Answer: Yes, sir.\\n\\\"Question: Okey; did you break loose from him?\\n\\\"Answer: I broke loose and he grabbed me again and I told him to leave me alone and stay away from me.\\\"\\n*\\n\\\"Question : All right, you were backing toward Pacific ?\\n\\\"Answer: That's right.\\n\\\"Question: And he kept pursuing you, kept coming at you?\\n\\\"Answer: Yes, sir.\\n\\\"Question: And then what did you do?\\n\\\"Answer: I shot him.\\n\\\"Question: All right, did you have any argument at all about getting into that wire closet?\\n\\\"Answer: No argument getting into it. The argument started over grabbing the hat and shoving me around.\\\"\\n:Ji # j|c \\u00edfc ijs\\n\\\"Question: (By Mr. Bickel) Now, then, about this disorder, he wasn't being disorderly at the time he came up to get his hat; was he directing his remarks to anybody except you, Earl Swinney \\u2014 I mean when he came up to get the hat ?\\n\\\"Answer: When he come up to get the hat, it was directed at me.\\n\\\"Question: And was the rest of his grabbing and following and everything like that directed to you, you alone, Earl Swinney?\\n\\\"Answer: That's correct.\\\"\\nThe only other witness to this incident was James O. Donaldson, also an employee, and a friend of Nealy. He testified he did not hear any profanity or cursing and did not see Nealy strike Swinney or drag him at any time. Upon cross examination he admitted he did not actually see everything that transpired prior to the time he heard the shot which killed Nealy.\\nThe court submitted Special Issue No. 1 to the jury which inquired as to whether or not the shooting of Nealy by Swinney was wrongful. In connection with this issue the court gave to the jury a lengthy definition of the term \\\"wrongful\\\" which included the element of self defense and instructed the jury that if they believed that by the acts of Nealy it reasonably appeared to Swinney, viewed from his standpoint alone, that Nealy was then about to attack him in such a manner as to cause his death or serious bodily injury, or was reasonably calculated to create in the mind of Swinney a reasonable expectation or fear of death or serious bodily injury, that such killing would not be wrongful. The jury found that the killing was not wrongful. They also found in answer to Special Issue No. 2 that when Swinney shot and killed Nealy he was not acting as an employee of Fidelity Union Life Insurance Company, and in answer to Special Issue No. 9 that the act of Swinney in shooting Nealy was performed as a resentment of insults and in the furtherance of personal animosity of Swin-ney toward Nealy.\\nWe have carefully considered this, testimony, as well as the entire record,, pursuant to the now familiar rule announced! by our Supreme Court in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, and! having done so we cannot say that there-is no evidence to support the jury's answers, to the issues in question. Nor can we say that the answers of the jury to these issues were so contrary to the great weight and! preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, appellants' Points 5 through 12 inclusive, are overruled.\\nFinding no error demonstrated in this, record we affirm the judgment of the trial, court.\\nAffirmed.\"}"

tex/10162775.json

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+"{\"id\": \"10162775\", \"name\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Parsons v. State\", \"decision_date\": \"1966-01-26\", \"docket_number\": \"No. 39210\", \"first_page\": \"283\", \"last_page\": \"283\", \"citations\": \"398 S.W.2d 283\", \"volume\": \"398\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:22:52.919897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee.\\nNo. 39210.\\nCourt of Criminal Appeals of Texas.\\nJan. 26, 1966.\\nNo attorney of record on appeal for appellant.\\nLeon B. Douglas, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"140\", \"char_count\": \"836\", \"text\": \"MORRISON, Judge.\\nThe information attempts to charge a violation of Article 567b, Vernon's Ann. P.C., for delivering a worthless check in the sum of $10.00; the punishment assessed was 30 days in jail and a fine of $150.00.\\nNeither the complaint nor the information charges that the check was given with intent to defraud. The intent to defraud is an essential element of the offense. Art. 567b, Sec. 1, supra, Wright v. State, 168 Tex.Cr.R. 214, 324 S.W.2d 883, Martinez v. State, Tex.Cr.App., 325 S.W.2d 145, and the cases there cited.\\nThe judgment is reversed and the prosecution is ordered dismissed.\"}"

tex/10163837.json

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+"{\"id\": \"10163837\", \"name\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee\", \"name_abbreviation\": \"Hann v. Life & Casualty Insurance Co. of Tennessee\", \"decision_date\": \"1958-02-19\", \"docket_number\": \"No. 13278\", \"first_page\": \"261\", \"last_page\": \"265\", \"citations\": \"312 S.W.2d 261\", \"volume\": \"312\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:47:11.255885+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee.\", \"head_matter\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee.\\nNo. 13278.\\nCourt of Civil Appeals of Texas. San Antonio.\\nFeb. 19, 1958.\\nRehearing Denied March 19, 1958.\\nAlbert Joe Saegert, Seguin, Tom I. Mc-Farling, Schleyer & Bartram, \\u00a1New Braun-fels, Threlkeld, Saegert & Saegert, Seguin, for appellant.\\nEskridge, Groce & Hebdon, Frank P. Christian, San Antonio, for appellee.\", \"word_count\": \"1702\", \"char_count\": \"10097\", \"text\": \"W. O. MURRAY, Chief Justice.\\nThis is a suit on two insurance policies for accidental death benefits. Appellant, Eugene A. Hann, alleged that her husband, Grover C. Hann, the insured, was injured in an automobile accident and that he died two days later, his death being the result of personal injuries sustained solely through violent external and accidental means. The cause was tried to a jury and, on the basis of the jury's findings, the court rendered judgment on June 5,1957, in favor of appellant. However, on July 27, 1957, the court granted appellee's motion for judgment non obstante veredicto, set aside the judgment of June 5, 1957, and rendered judgment that appellant take nothing.\\nAppellant contends that appellee's motion for judgment non obstante veredicto was both filed and heard too late. The jury's verdict was received May 31, 1957, and on June 5, 1957, judgment on the verdict was rendered in appellant's favor. On June 11, 1957, appellee filed its motion for a new trial; on June 28, 1957, without asking or receiving leave of the court, appellee filed its amended motion for a new trial and on the same date also filed its motion for judgment non obstante veredicto. After finding that it was timely filed and presented, the trial court granted the motion non obstante veredicto and rendered judgment in appellee's favor.\\nAppellant's first contention is that appellee's amended motion was a nullity because it was filed without leave of the court, and, therefore, appellee's original motion for a new trial was overruled by operation of law thirty days from the day it was filed, which would have been July 13,. 1957. In this appellant is mistaken. Since the adoption of Rule 329-b, Texas Rules of Civil Procedure, effective January 1, 1955,. the motion would not be overruled by operation of law until forty-five days after it was filed, which would be July 27, 1957, the day upon which appellee's motion for judgment non obstante veredicto was granted. Therefore, even if the amended motion for new trial was a nullity,'the motion for judgment non obstante veredicto was timely passed upon. The rules do not provide for a time limit on the filing and passing upon of a motion non obstante vere-dicto, therefore, such motion may be filed even after the court has rendered judgment on the verdict, and may be acted upon any time before the motion or amended motion for a new trial has been overruled, either by the court or by operation of law.\\nThe third ground set out in the motion for judgment non obstante veredicto reads as follows:\\n\\\"In order for the Plaintiff to recover on the two insurance Polices on which she brought suit it was necessary for her to prove and obtain a finding that there was a visible contusion or wound on the exterior of the body of the insured as provided in both Policies. The Plaintiff did not obtain such a finding and having failed to meet her burden of proof is not entitled to recover anything against the defendant.\\\"\\nThe trial court, in attempting to submit to the jury the question as to whether there were visible contusions or wounds upon the exterior of insured's body, of the injury causing his death, submitted Special Issue No. 4, reading as follows:\\n\\\"Do you find from a preponderance of the evidence that the exterior of the Body of Grover C. Hann showed any visible marks or evidences caused from such accidental bodily injuries, if any, to the said Grover C. Iiann?\\\"\\nwhich the jury answered in the affirmative. Appellee excepted to this issue, among other things, because it was not in the language of the policies relating to this matter, and its exception was overruled. In this action the court may have erred, but the court's error in overruling an exception to the charge is not such an error as can be raised by a motion for judgment non obstante ver-edicto. The court can only grant a motion for judgment non obstante veredicto where an instructed verdict would have been proper. Rule 301, T.R.C.P.; Houston Fire and Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600; Crow v. City of San Antonio, Tex.Civ.App., 294 S.W.2d 899; Wilderspin v. Bewley Mills, Inc., Tex.Civ.App., 298 S.W.2d 636. An issue in the same form as here used was held sufficient by the Court in American National Insurance Co. v. Fox, Tex.Civ.App., 184 S.W.2d 937.\\nThe motion for judgment non ob-stante veredicto did not challenge one or more special issues, but, on the contrary, only asked for judgment notwithstanding the entire verdict. From such a motion we must presume that each issue was supported by the pleadings and the evidence. Service Life Ins. Co. v. Miller, Tex.Civ.App., 271 S.W.2d 301; Rules Nos. 300 and 301, T.R.C. P.\\nBefore the court could properly have disregarded the jury's answer to Special Issue No. 4, the motion non obstante veredicto would be required to single out this issue and ask that its answer be disregarded. Traders & General Ins. Co. v. Heath, Tex.Civ.App., 197 S.W.2d 130. In appellee's motion non obstante veredicto there was no request that the answer to any one or more issues be disregarded, it requested that the entire verdict be disregarded. Jinks v. Whitaker, 145 Tex. 318, 198 S.W.2d 85.\\nAppellee contends that the trial court properly granted its motion for judgment non obstante veredicto, because there was no evidence that the deceased insured had a visible wound or contusion on the exterior of his body. We have serious doubts if appellee can here raise this question, under the authorities we have cited above, as it failed to ask that the jury's answer to Special Issue No. 4 be set aside as being unsupported by the evidence. But if we be mistaken in this, then there was evidence of such contusion. Appellant testified that the insured's neck was swollen and he was spitting up blood. One doctor testified that these facts were evidence that insured had either sustained a broken rib and it had pierced a lung, or he had received a neck injury which affected his breathing, and that either condition could have caused his death.\\nIn answer to the special issues submitted, the jury found that:\\n1. Insured, while driving his private car on the Randolph Field-Seguin Highway, had an accident to his car on December 16, 1955.\\n2. Such accident to the private car of insured directly and proximately caused accidental bodily injuries to insured.\\n3. Such accidental bodily injuries resulted in the death of insured.\\n4. The exterior of the body of insured showed visible marks or evidences caused from such accidental bodily injuries.\\nThis verdict of the jury, when taken in connection with the undisputed evidence, warranted the judgment rendered by the trial court on June 5, 1957, and the court erred in setting it aside.\\nAppellee contends that the policies provide that insured's death had to be caused solely by violent, external and accidental means, and that appellant failed to secure such a finding from the jury. We do not agree. The only requirement in the policies is that insured's injuries be caused solely by violent external and accidental means. Bankers' Health & Accident Co. of America v. Shadden, Tex.Civ.App., 15 S.W.2d 704; Commonwealth Casualty & Ins. Co. v. Laurence, Tex.Civ.App., 223 S.W.2d 337; McVeigh v. International Travelers Assur. Co., Tex.Civ.App., 101 S.W.2d 644; Provident Life & Accident Ins. Co. v. Huston, Tex.Civ.App., 305 S.W.2d 837; Benefit Association of Railway Employees v. Armbruster, 224 Ala. 302, 140 So. 356; Clay County Cotton Co. v. Home Life Ins. Co. of New York, 8 Cir., 113 F.2d 856.\\nAppellee has not filed any cross-points asking that this cause be reversed and remanded so it might file a motion for new trial, or, perhaps it would be more correct to say, have the trial court pass upon the motion for a new trial which it has already filed. Rule 324, T.R.C.P., as amended, effective September 1, 1957.\\nAccordingly, the judgment non obstante veredicto will be reversed and judgment here rendered that appellant recover of ap-pellee the sum of $2,980, together with interest at the rate of 6% per annum from June 5, 1957.\\nReversed and rendered.\"}"

tex/10163953.json

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+"{\"id\": \"10163953\", \"name\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Curry v. State\", \"decision_date\": \"1956-11-14\", \"docket_number\": \"No. 28592\", \"first_page\": \"214\", \"last_page\": \"214\", \"citations\": \"295 S.W.2d 214\", \"volume\": \"295\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:42:33.581007+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee.\\nNo. 28592.\\nCourt of Criminal Appeals of Texas.\\nNov. 14, 1956.\\nNo attorney for appellant of record on appeal.\\nLeon B. Douglas, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"100\", \"char_count\": \"614\", \"text\": \"DAVIDSON, Judge.\\nAppellant was convicted of forgery, with a previous conviction for like offense, and his punishment was assessed at confinement in the penitentiary for seven years.\\nThe record is before us without a statement of facts, in the absence of which the exceptions to the court's charge cannot be considered. There are no formal bills of exception.\\nThe judgment is affirmed.\"}"

tex/10167895.json

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+"{\"id\": \"10167895\", \"name\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee\", \"name_abbreviation\": \"Wagoner v. City of Arlington\", \"decision_date\": \"1961-03-24\", \"docket_number\": \"No. 16203\", \"first_page\": \"759\", \"last_page\": \"764\", \"citations\": \"345 S.W.2d 759\", \"volume\": \"345\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:49:37.146652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.\", \"head_matter\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.\\nNo. 16203.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nMarch 24, 1961.\\nRehearing Denied April 21, 1961.\\nMartin, Moore & Tackett, and Elvin E. Tackett, Fort Worth, for appellant.\\nJames E. Wright, Fort Worth, for ap-pellee.\", \"word_count\": \"2985\", \"char_count\": \"17669\", \"text\": \"MASSEY, Chief Justice.\\nThis is a condemnation suit. Appellant R. S. Wagoner was the owner of the property taken, and of land not taken, to the extent of approximately 188 acres, lying across a county road from that condemned by the City of Arlington for the purpose of constructing an airport. He will be hereinafter referred to as condemnee. The City of Arlington will be hereinafter referred to as the city.\\nCondemnee contested the right of the city to take his property. After issues were joined in the trial court the city filed its motion for summary judgment in relation to the matter of right and propriety of its condemnation proceedings, and following a hearing partial summary judgment was entered as prayed for. The effect thereof was to make the only issues for trial before the jury the amount of damages which con-demnee was entitled to receive.\\nAt the conclusion of the trial a single special issue was submitted to t\\u00edre jury, posing inquiry as to the value of the con-demnee's property taken for airport purposes. The court refused to submit issues upon the question of the value, \\\"before and after\\\" condemnation, of condemnee's remaining 188 acres. The court denied con-demnee's motion for leave to make the opening and closing argument before the jury, allowing the city to make such over condemnee's protest.\\nThe jury returned its verdict finding the value of the condemned land, and judgment was entered based upon the verdict. Condemnee has appealed.\\nJudgment reversed and remanded.\\nWe are of the opinion that the case should be reversed because of the refusal to permit the condemnee to open and close the argument made to the jury. In the case of Ready v. City of Marshall, Tex.Civ.App., Ft. Worth 1950, 234 S.W.2d 104, this court had a somewhat similar case to that before us and saw fit to reverse and remand the same for .another trial because of the failure of the trial court to permit the condemnee to open and close the argument. The holding was that reversible error appeared and that Texas Rules of Civil Procedure, rule 269 controlled the case.\\nWe believe any attempted distinction between the instant case and that of Ready v. City of Marshall would be of form rather than of substance. In our opinion the decision reached in the Ready case was correct and the judgment therein was properly reversed. It necessarily follows that the judgment in the instant case should be reversed and remanded because of the trial court having denied condemnee the right to open and close the argument to the jury on the issue of damages, such being the only issue submitted.\\nWe recognize that argument may be made that T.R.C.P. 434 applies to a situation such as this. It has been held that the denial to the party who has the right, under the provisions of T.R.C.P. 266 and 269, to open and close the argument before the jury constitutes an error of law committed during the course of the trial, and that in order for such error to require reversal the complainant thereof must demonstrate from the whole record that it was reasonably calculated to cause and probably did cause the return of an erroneous verdict or rendition of an erroneous judgment. Hassell v. Pruner, Tex.Civ.App., Amarillo 1956, 286 S.W.2d 266, writ ref. n. r. e. (a will contest); Harrison v. Chesshir, Tex.Civ.App., Amarillo 1958, 316 S.W.2d 909, reversed on other grounds in 159 Tex. 359, 320 S.W.2d 814 (an injunction suit). We have noticed also that in other jurisdictions the denial of a right to open and close has been held to warrant reversal only when the denial has been shown to have amounted to an abuse of discretion. See text and annotations at 53 Am.Jur., p. 368, \\\"Trial\\\", sec. 462, \\\"Order of Argument; Right to Open and Close\\\".\\nNevertheless, we believe that T.R.C.P. 434 does not apply to the particular case and situation before us and that T.R.C.P. 266 and 269 afforded condemnee the right to open and close the argument before the jurjq since he insisted thereupon and moved the court for leave to do so, which motion was denied. Regarding the securing of such right see Rayburn, Texas Law of Condemnation, Sec. 214(1), \\\"Argument In the Trial Court \\u2014 Permissible and Erroneous Argument\\\". In 5 Texas Bar Journal p. 95 and 8 Texas Bar Journal p. 8 these rules were interpreted by the subcommittee on interpretation of the Texas Rules of Civil Procedure. This interpretation is printed under both rules in Vernon's Annotated Texas Rules. The answer printed is upon the matter of \\\"when the plaintiff has the right to open and close\\\", and excepts from such times \\\"(2) where the defendant has the burden of proof on all matters which are submitted by the Court's charge to the jury, \\\". T.R.C.P. 269 affirmatively states that the \\\"party having the burden of proof on all matters which are submitted by the charge\\\" shall be entitled to open and conclude the argument. In the instant case the con-demnee had and preserved the substantive legal right to open and conclude the argument to the jury. There is an absence of any proof placed in the record which creates a contrary inference. We therefore believe that the error should be considered and treated as so substantial in nature or so connected with the rights of the parties or the course of the proceedings that it cannot be said that the error did not influence the result. Therefore said error amounted to reversible error. On the matter of such a defendant's right to open and close and upon the distinction applicable to cases decided before and after the effective date of the 1941 Rules see McDonald, Texas Civil Practice, p. 1181, \\\"Jury Trial: Argument\\\", sec. 13.02, \\\"Order and Time Allowed\\\".\\nThe evidence in the record constituted proof that the parcel of condemnee's land which was condemned by the city, lying on one side of a county road across from the remainder of condemnee's land, was, at the time it was taken, being used along with and in conjunction with said remainder for one general purpose and in such manner as to warrant treating the two tracts as an entire parcel. In other words the situation was such that under ordinary usage the inquiry pursuant to condemnation proceedings would have been not only as to the value of the land condemned and taken, but additionally as to the damages sustained by the decrease, if any, in the value of his remaining land. See Concho, S. S. & L. V. Ry. Co. v. Sanders, Tex.Civ.App., Austin 1912, 144 S.W. 693; Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., Amarillo 1949, 228 S.W.2d 925, writ ref. n. r. e.; Gulf, Colorado and Santa Fe Railway Co. v. Payne, Tex.Civ.App., Ft. Worth 1957, 308 S.W.2d 146; 18 Am.Jur., p. 910, \\\"Eminent Domain\\\", Sec. 270, \\\"Damage to Other Land of Same Owner\\\"; 170 A.L.R. at page 721 et seq. under Annotation, \\\"Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking\\\"; 6 A.L.R.2d at page 1197 et seq. under Annotation, \\\"Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property.\\\"\\nWe do not believe, however, that in this particular case condemnee properly showed himself entitled to introduce evidence concerning the diminution in the value of his remaining land after a part was taken, \\u2014 or tendered evidence thereon proper to be received,' \\u2014 and therefore there was no error in the court's refusal to admit same. The reason therefor is somewhat peculiar and may be such ,as will not reoccur upon the occasion of another trial. Condemnee was attempting to try his case on the theory that the highest and best use of his property, both as to that taken in condemnation and as to the remainder left in his hands, was for residential purposes and not for the farming and ranching purposes to which same was devoted at the time the city's condemnation proceeding was instituted. Under that theory we do not believe there could be any proper claim of unity between the land taken and the remainder and there would not be any damage which would necessarily inure to the 188 acres remaining. Only under the theory that the \\\"unit\\\", i. e. the whole use of the land held and unitized (as to use), was so substantially destroyed or diminished in utility that the value of the land remaining after condemnation was disproportionately reduced in value in comparison with the value of that taken as the direct result of the deletion from the \\\"unit\\\" of the portion condemned, and/or as the direct result of its devotion to the purposes for which it was condemned, would condemnee be entitled to seek damages to the remaining land. This was not condemnee's theory and the evidence on damages tendered by him in his bill of exceptions had no relation thereto. Furthermore, tire evidence which he did tender as part of his bill constituted, in part, mere proof of damage which he, in common with the community as a whole, would endure because an airport was located nearby. This would not constitute damages inuring to him as a condemnee because of a diminution in the value of his land remaining after condemnation. In another respect the tendered proof was based upon the hypothesis that the value of condemnee's remaining land (for residential development purposes) would suffer because of a decrease in its desirability because of the proximity of an airport. This proof upon damages we consider to have been too remote, speculative and conjectural and therefore it was properly excluded.\\nWe do not believe that there was any error in the trial court's rendition of partial summary judgment prior to the trial of the issues upon damages. It was con-demnee's contention that condemnation was improper because the city owned nearby property which was suitable for use as an airport, and which the city desired to sell,, using the proceeds from the sale for the purpose of relocating the same airport and acquiring a part of his land. Basically, con-demnee's contention of impropriety lay in the fact that residential development of the city was approaching the present airport land, as result of which it had become rather valuable for residential purposes, and that the city's motive was inspired by a desire to sell the same for sufficient money to enable it to acquire the new site and have a profit for itself.\\nWe believe a proper construction of the record, as same was before the trial court for consideration in passing upon the city's motion for summary judgment, would be that the question was posed as to whether the evidence proper to be considered, in the light of the motion, presented an issue of fact by reason of the condemnee's affirmative allegations that the city's initiation of the proceedings under authority of its Charter, pertinent Eminent Domain Statutes, under Vernon's Ann.Tex.Civ.St. Art. 1107, \\\"Condemnation of property\\\", and Art. 1269h, \\\"Airports, maintenance and operation\\\", Sec. 1, subd. A, \\\"Acquisition; sale or lease\\\", constituted and amounted to arbitrary and capricious action. It furthermore appears that the condemnee claimed that the city's action amounted to a legal fraud.\\nConsideration of the question requires application of tests in the determination of whether the condemnee had raised an issue under the pleadings and evidence before the court at the summary judgment hearing. He could be considered to have raised the issue only if it was unquestionably established in the evidence that there could have been no actual public necessity for the city to seek the land in question for airport purposes. The terms \\\"arbitrary\\\" and \\\"capricious\\\" as applied to the city's action must mean willful and unreasoning action, action without consideration and in disregard of the facts and circumstances \\u2022existed at the time condemnation was decided upon, or within the foreseeable future. It is the purpose for which condemnation was sought which is to be examined in resolving the question; and if this purpose could in reasonable minds in good faith be deemed to be a public one, then there would be justification and lawful authority for the condemnation proceedings. Furthermore, though it be established that one result of such proceedings would be that the city would reap a profit such in itself could not raise an issue (even assuming that the profit objective under some circumstances would vitiate the proceedings) if there was also evidence that the public would benefit, as for example by having a more ready and convenient and accessible airport, one which was better drained of surface water following rains, one which would be more adaptable to airport purposes, etc., than would be the case if the land were not acquired.\\nThe term \\\"fraud\\\" as applied to the institution of condemnation proceedings would be any act, omission or concealment, which involved a breach of legal duty, trust or confidence, justly reposed and is injurious to another, or by which an undue and unconscientious advantage is taken of another. Boucher v. Texas Turnpike Authority, Tex.Civ.App., Texarkana 1958, 317 S.W.2d 594, 601, citing from Kellum v. Smith, 1857, 18 Tex. 835, 836.\\nFrom our examination of the record we are convinced that the condemnee failed to raise a question upon the issue of fraud or upon the issue of whether the city's action was arbitrary and capricious. In so stating it is pointed out that we are talking about a Judicial Issue. When the use for which property is sought under authority of the statutes of eminent domain is an authorized public use the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Imperial Irr. Co. v. Jayne, 1911, 104 Tex. 395, 138 S.W. 575, 587.\\nThe history of the many laws enacted by the legislature of this State relating to the exercise of the right of eminent domain clearly shows that it is the policy of the legislature to liberalize the exercise of that power rather than to restrict it. Brazos River Conservation and Reclamation Dist. v. Costello, 1940, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220. In order for there to be a judicial issue, the condemnee must plead and prove that the city's act was founded in fraud or was arbitrary and capricious. It could not be said that condemnee has met the requisites of proof by merely introducing facts and inferences showing that alternate plans might be feasible or better adapted to the project sought to be accomplished which would not require his property, that the project was not essential or necessary, or that incident thereto the condemning authority might reap a profit. In such instances questions as to the necessity of taking the land sought to be condemned are concluded when the applicant for condemnation, acting within the scope of its authority, determines its use is necessary. The reason for this rule is that if it were otherwise one jury might hold on competent evidence that land in question in the suit (a constituent part of the whole of a larger amount necessary to the accomplishment of the objective of the condemning authority) was not necessary to such purposes and the accomplishments of an entire project destroyed because of the inability to obtain the small part' of land which made the subject of the particular condemnation suit. 16 Tex.Jur., p. 401, \\\"Em inent Domain\\\", sec. 128, \\\"Condemnation of Particular Property\\\".\\nNeither may it he stated that in said connection a condemnee has met the requisites of proof sufficient to present a judicial issue where the record shows that there was room for two opinions, at the time the condemning authority determined upon the basis of one of such opinions that the land sought should be condemned. Action is not arbitrary and capricious when exercised honestly and upon due consideration, where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached. Rayburn, Texas Law. of Condemnation, Sec. 38(1), p. 94 et seq., \\\"Purposes For Which Land Is To Be Taken, Must Be Set Out In Statement In Writing\\\"; Webb v. Dameron, Tex.Civ.App., Amarillo 1949, 219 S.W.2d 581, writ ref. n. r. e.\\nCondemnee cites liberally from the case of Brazos River Conservation & Reclamation Dist. v. Harmon, Tex.Civ.App., Eastland 1944, 178 S.W.2d 281, writ ref. want of merit. In that case the condemnor was held to have clearly abused its discretion in that, as a matter of law, it attempted to take more land than was necessary for the effectuation of the purposes to be accomplished by the project at hand. A distinction is to be made between such case and the case at bar. Here there is no contention that the city is seeking more land than is necessary for the purpose to be accomplished, but the contention is that the project is not necessary at all.\\nRemaining points of error -relate to matters which probably will not occur upon the occasion of another trial. As indicated in the opinion another trial will be necessary because of the error of the trial court in refusing to permit condemnee to open and close the argument. For any necessity which might become apparent we will state that said points of error have been examined and are deemed without merit -and for that reason are overruled.\\nJudgment reversed and cause remanded for another trial.\"}"

tex/10185511.json

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+"{\"id\": \"10185511\", \"name\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent\", \"name_abbreviation\": \"Lebohm v. City of Galveston\", \"decision_date\": \"1955-01-19\", \"docket_number\": \"No. A-4814\", \"first_page\": \"951\", \"last_page\": \"955\", \"citations\": \"275 S.W.2d 951\", \"volume\": \"275\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:50:45.440340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.\", \"head_matter\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.\\nNo. A-4814.\\nSupreme Court of Texas.\\nJan. 19, 1955.\\nRehearing Denied March 2, 1955.\\nBarker & Barker, Galveston, for petitioner.\\nH. E. Kleinecke, Jr., and James A. Piperi, Galveston, for respondent.\", \"word_count\": \"2819\", \"char_count\": \"16765\", \"text\": \"CALVERT, Justice.\\nWhile using a street in the City of Galveston, petitioner tripped on an obstruction therein and fell, sustaining injuries made the basis of this suit. By special exception, and otherwise, respondent interposed Section 47 of its Charter \\u2014 a charter granted by-special act of the Legislature in 1903, Sp. Laws 1903, c. 37- \\u2014 as an absolute defense to petitioner's suit for damages. The defenses were overruled and the case was submitted to a jury which made findings of negligence on the part of the city, proximate cause and damages, resulting in a trial court judgment for petitioner. Holding that the evidence was sufficient to support the jury findings but that Section 47 of the Charter was valid and an absolute defense to the suit, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for respondent. 268 S.W.2d 782.\\nThere is no question but that the aforementioned Charter provision is an absolute defense to the suit if it is valid. It reads as follows: \\\"That the city of Galveston shall not be liable in damages for any injury or injuries to persons or to property caused by filling, raising, grading or elevating any property within the city of Galveston, or in the prosecution of any public improvement in said city, or on account of any defect of any street, sidewalk or other public place.\\\"\\nAs sustaining the validity of the Charter provision respondent relies on Williams v. City of Galveston, 41 Tex.Civ.App. 63, 90 S.W. 505, writ refused, and Reegan v. City of Galveston, Tex.Civ.App., 24 S.W.2d 61, writ dismissed, in which the validity of this Charter provision was in issue and in which it was sustained, in each instance, by the Galveston Court of Civil Appeals against the contention that it was in violation of Article I, Section 13 of the Constitution of Texas, Vernon's Ann.St., reading in part as follows: \\\"All 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.\\\"\\nAs supporting her position that the provision is invalid petitioner relies, principally, on City of Amarillo v. Tutor, Tex.Com.App., 267 S.W. 697; City of Amarillo v. Green, Tex.Com.App., 267 S.W. 702; Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278; City of Wichita Falls v. Lipscomb, Tex.Civ.App., 50 S.W.2d 867, writ refused, and City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692.\\nNone of the cases cited by petitioner involved the Galveston Charter provision and the Court of Civil Appeals chose, understandably, to follow and be governed by the Williams and Reegan cases. Since the Williams case was a one-point case, it is difficult to understand how this Court could have refused a writ of error except upon the theory that it was in agreement with the holding of the Galveston Court that the provision was valid. It seems to us, however, that the question needs reconsideration in the light of later decisions of this Court.\\nIt may be noted that the Charter provision in question here is subject to the same objections as those enumerated in the opinion of the Commission of Appeals which prompted this Court to strike down the statute and ordinance in City of Amarillo v. Tutor and City of Amarillo v. Green, to wit: 1. The provision exempts the City of Galveston from liability for damage to property in violation of Article I, Section 17 of the Constitution prohibiting the taking or damaging of property without adequate compensation being made. 2. It exempts the city from liability for damage growing out of injuries resulting in death and therefore conflicts with a general law as enacted by the Legislature. Article 4671, Vernon's Ann.Civ.St. 3. It exempts the city from liability for damage to property or injuries to persons willfully or intentionally inflicted and to that extent is violative of Article I, Section 13 of the Constitution. With similar findings in the Tutor case the Court proceeded to hold that the statute and ordinance there involved were subject to so many objections that they would be held invalid in their entirety. A similar conclusion was reached in Hanks v. City of Port Arthur, that is, that the Charter provision being invalid in some respects it would be held invalid in its entirety. We might rest our decision in this case on these holdings in the Tutor and Hanks cases but. choose not to do so.\\nAs the major basis for our conclusion that Section 47 of the Galveston Charter is invalid, we consider that the necessary-effect of Hanks v. City of Port Arthur and City of Terrell v. Howard, and as well the direct holding in City of Wichita Falls v. Lipscomb, is to deny to legislative bodies the right to arbitrarily abolish causes of action against municipalities where such causes of action are well established and well defined in the common law.\\nHanks v. City of Port Arthur and City of Terrell v. Howard did not involve the validity of exemption provisions but their ap-positiveness to that problem is apparent. In both cases this Court declared, unequivocally, that charter provisions or ordinances imposing unreasonable restrictions on the right to sue a city for damages for injuries for which the liability of the city was well established at common law were violative of Article I, Section 13 of the Constitution, quoted above, and therefore invalid. It is true that in both cases the Court noted particularly that it was not called on to pass on the validity of an exemption provision, but we can perceive no reasonable basis for striking down the one provision and upholding the other. If the due process clause of our Constitution inhibits legislation unreasonably restricting the right to sue in a given field it also inhibits legislation arbitrarily abolishing the right to sue in the same field. But it is unnecessary to rely entirely on the two decisions mentioned. As indicated above, it was the direct holding of the Fort Worth Court of Civil Appeals in City of Wichita Falls v. Lipscomb that a charter provision abolishing rights of action against the City of Wichita Falls for damages for personal injuries and exempting the city from liability therefor was in violation of Article I, Section 13 of the Constitution and therefore invalid. In that case injury was sustained by reason of the negligence of the city in the operation of its water department, a proprietary function, while in this the injury was sustained by reason of negligence of the city in the maintenance of its streets, a proprietary function. By refusal of a writ of error in City of Wichita Falls v. Lipscomb the opinion of the Court of Civil Appeals in the case was made the opinion of this Court. Thompson v. Gibbs, 150 Tex. 315, 240 S.W.2d 287. We know of no sound basis for distinguishing the two cases and conclude that the question here is foreclosed by the decision in that case. The charter provision is declared to be invalid.\\nIn an able amicus curiae brief Honorable J. M. Singer, City Attorney of the City of Corpus Christi and President of the Texas City Attorneys' Association, suggests that in point of fact, and contrary to the holding of this Court in City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517, cities are actually performing a governmental function in the building and maintenance of streets and ought to enjoy the same exemption from liability as is accorded to the State and counties in the building and maintenance of public roads and highways. This exact reasoning in large measure was the basis for this Court's original holding in City of Navasota v. Pearce, 46 Tex. 525, that a city was not liable for injuries resulting from its negligence in the maintenance of streets, but the subject was re-examined in City of Galveston v. Posnainsky, supra, and the reasoning rejected. It is admitted on all hands, as it was in City of Navasota v. Pearce, that the great weight of authority supports the view adopted in the Posnainsky case and adhered to in this state since that time. Considering that the principle is now well established in the municipal law of this state, in the absence of a very clear showing that it was erroneously established we regard the matter as governed by the rule of stare decisis.\\nThe judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.\"}"

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+"{\"id\": \"10198366\", \"name\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al.; JEFFERSON COUNTY v. SAME (three cases)\", \"name_abbreviation\": \"Road Dist. No. 1, Jefferson County v. Sellers\", \"decision_date\": \"1944-05-10\", \"docket_number\": \"Nos. A-100, 101, 102, 103\", \"first_page\": \"138\", \"last_page\": \"144\", \"citations\": \"180 S.W.2d 138\", \"volume\": \"180\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:40:44.852898+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al. JEFFERSON COUNTY v. SAME (three cases).\", \"head_matter\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al. JEFFERSON COUNTY v. SAME (three cases).\\nNos. A-100, 101, 102, 103.\\nSupreme Court of Texas.\\nMay 10, 1944.\\nShelby Long, Co. Atty., and Earl Black, Asst. Co. Atty., both of Beaumont, for petitioners.\\nGrover Sellers, Atty. Gen., and C. F. Gibson and Gaynor Kendall, Asst. Attys. Gen., for respondent.\\nHamilton, Lipscomb, Wood & Swift, of Dallas, for respondent Southwestern Life Iris. Co.\\nRoy B. Lucas, Stanley Bassett, and L. H. Betts, all of Kansas City, Mo., for respondent Kansas City Life Ins. Co.\\nWitt, Terrell, Lincoln, Jones & Riley and W. E. Terrell, all of Waco, for respondent Amicable Life Ins. Co.\\nBlack, Graves & Stayton and Chas. L. Black, all of Austin, for respondents Employers Casualty Co. and Texas Employers Insurance Ass\\u2019n and others.\\nGoldsmith & Bagby, of Austin and W. P. Dumas, John D. McCall, Clarence E. Crowe, and Millard Parkhurst, all of Dallas, for respondents State Life Ins. Co. and others.\\nStrong & Moore and Beeman Strong, all of Beaumont, for respondent T. F. Roth-w\\u00e9ll.\", \"word_count\": \"3364\", \"char_count\": \"19502\", \"text\": \"ALEXANDER, Chief Justice.\\nJefferson County has filed three original applications in this court for writs of mandamus to compel the Attorney General to approve the issuance of certain refunding bonds which it proposes to issue for the purpose of taking up and discharging certain bonds theretofore issued by it. Road District No. 1 of Jefferson County has filed a similar application. The Attorney General has refused to approve the issuance of the new bonds on the ground that the outstanding bonds sought to be refunded are now owned by third parties and are not redeemable at this time. All four applications will be disposed of under a single opinion.\\nArticle 611 as it was embodied in Chapter 1, Title 18, of Revised Statutes of 1911, read as follows:\\n\\\"All bonds issued under this chapter shall run not exceeding forty years, and shall be redeemable at the pleasure of the county at any time after five years after the issuance of the bonds, or after any period not exceeding ten years, which may be fixed by the commissioners' court.\\\" (Italics ours.)\\nThis same article was brought forward as Article 720 in Chapter 2, Title 22, in the recodification of 1925 in the same language, except that the word \\\"shall,\\\" which we have italicized, was changed to \\\"may.\\\" It has remained unchanged since that time. Hereinafter in referring to the above statute, it will be referred to as Article 611 when we are discussing bonds issued pri- or to 1925, and as Article 720 when we ar\\u00e9 discussing bonds issued subsequent to 1925.\\nIn the case of Cochran County v. Mann, Attorney General, 141 Tex. 398, 172 S.W.2d 689, we held that where bonds were issued under Chapter 1 of Title 18 of Revised Statutes of 1911, or Chapter 2 of Title 22 of Revised Statutes of 1925, the above-quoted statute was read into and made a part of the bond contract, and that if the Commissioners' Court at the time the bonds were issued made no provision concerning its right to redeem the bonds prior to their maturity, the bonds were redeemable at the pleasure of the county at any time after five years after the issuance thereof. We further held that the Commissioners' Court could, by an appropriate order entered at the time the bonds were issued, postpone the date after which the bonds could be redeemed to not exceeding ten years from the date of their issuance.\\nNone of the bonds here sought to be refunded were issued under the chapter which embodied the statute above quoted. None of the bonds are now due, nor are they by their terms redeemable at this time. Neither is there any provision in the acts or chapters under which they were issued which, standing alone, makes the bonds redeemable at this time. If any of the bonds are now redeemable, it is solely by virtue of the fact that the acts under which they were issued refer back to the article above quoted, and thereby make its provisions applicable to such bonds.\\nThe bonds involved in cause No. A-101 were issued in 1935 by Jefferson County under a Special Law, Acts 1934, 43rd Leg., 4th C.S., p. 78, ch. 32, for the purpose of constructing the Neches River bridge. This case will be discussed first because in our opinion the record is more favorable to petitioner than are the records in the other cases. The only material provision of the Special Act authorizing the issuance of these bonds will be found in Section 3 thereof. It reads in part as follows:\\n\\\"Said bonds, if voted, shall bear interest at the rate of not exceeding five per cent (5%) per annum and shall mature not later than thirty (30) years from their date and shall be issued in such denominations and payable at such time or times as may be deemed most expedient by the Commissioners Court of Jefferson County. Said bonds shall be voted and issued under the provisions of Chapters 1 and 2 of Title 22, Revised Civil Statutes of 1925, except as otherwise provided by this Act.\\\"\\nIt will be noted that the act provides that the bonds therein provided for shall be issued under the provisions of Chapters 1 and 2, Title 22, of Revised Statutes of 1925, \\\"except as otherwise provided by this Act.\\\" This makes it clear that in the event of a conflict between the provisions of said Chapters 1 and 2 and the provisions of this act, the latter will control in so far as the bonds here involved are concerned.\\nIt is contended that the herein-above quoted Article 720, which makes certain county bonds redeemable under certain conditions after five years from the date of their issuance, is applicable to the bonds here under consideration. Article 720 is by its terms made applicable only to bonds issued under the provisions of \\\"this Chapter,\\\" meaning Chapter 2, Title 22, of Revised Statutes of 1925. The bonds in question were not issued under that chapter. Since the Legislature saw fit to limit the provisions of Article 720 to bonds issued under that specific chapter we should not extend its provisions to bonds issued under other acts and chapters, unless it is reasonably clear that such was the intention of the Legislature. If its provisions have been so extended as to cover the bonds here involved, it is solely because the act under which these bonds were issued in some way refers thereto and incorporates its provisions as a part of said act. In the case of State v. Frear, 144 Wis. 79, 128 N.W. 1068, 1074, 140 Am.St.Rep. 992, the Supreme Court of Wisconsin, discussing the claim that the provisions of an older law had been adopted, had the following to say:\\n\\\"We should have as little confusion as possible in our statute law. Where the attempt is made to incorporate parts of a former law into one that is being presently made, the language used should be such as to indicate with a reasonable degree of certainty what was in the legislative mind. A careful and intelligent reading of the two acts should be sufficient to indicate to the reader what parts of the old law were applicable to and were incorporated in the new. People are obliged to obey the laws, and, in order that they may do so, they should be put in a position where they can ascertain what they are.\\\"\\nThe rule above announced is peculiarly applicable in a case such as this, for it is always essential that bond contracts be as free from uncertainties as possible in order that the full extent of the contract may be readily ascertainable; otherwise the bonds may not bring their full value and the taxpayers will suffer.\\nThe act under which these bonds were issued provides that such bonds \\\"shall mature not later than thirty (30) years from their date and shall be payable at such time or times as may be deemed most expedient by the Commissioners Court of Jefferson County\\\"; whereas Article 720 provides that the bonds therein referred to \\\"shall run not exceeding forty years, and may be redeemable at the pleasure of the county at any time after five years after the issuance of the bonds, or after any period not exceeding ten years, which may be fixed by the commissioners court.\\\" An examination of the two statutes will disclose that the Legislature in the enactment of the statute under which these bonds were issued conferred on the Commissioners' Court full and unlimited power to make the bonds payable at such time or times as may be deemed expedient by the Commissioners' Court not later than thirty years from their date, whereas no such unlimited authority was granted to Commissioners' Courts under the provisions of Article 720. The Legislature, by the enactment of' Article 720, specifically withheld from Commissioners' Courts the power to issue bonds of the kind therein referred to that could not be redeemed or paid off at any time after ten years after their issuance. In our opinion there is such conflict between the two provisions that we would not be justified in holding that the provisions of Article 720 are applicable to the bonds issued under the act here under consideration.\\nIt is true that Article 720 relates to the time when the bonds may be redeemed, whereas the act under consideration relates to the time when the bonds shall be payable, but in our opinion there is no essential difference in the subjects dealt with in so far as the question here under consideration is involved. To redeem and to pay sometimes mean the same thing, and in this instance the right of redemption provided for in Article 720 is merely an option to pay the bonds. The method of redemption contemplated by the statute was by payment. Consequently when the Legislature, by the enactment of Article 720, fixed a date after which the bonds there referred to could be redeemed, it fixed a date when such bonds could be paid.\\nWe hold that the bonds sought to be refunded in this instance are not redeemable at this time.\\nNo. A-103.\\nThe bonds involved in cause No. A \\u2014 103 were issued by Jefferson County in 1937 under the provisions of Vernon's Ann.Civ.Stats. Arts. 752a to 752i, incl., Acts 1926, 39th Leg., 1st C.S., p. 23, ch. 16. The only pertinent section of that act with reference to the issuance and maturity of the bonds therein provided for is Article 752i, which reads as follows :\\n\\\"Such bonds shall mature not later than thirty years from their date, except as herein otherwise provided; they shall be issued in such denominations, and payable at such ti-me or times as may be deemed most expedient by the Commissioners' Court, and shall bear interest not to exceed five and one-half per cent per annum. The general laws relative to county bonds, not in conflict with the provisions of this Act, shall apply to the issuance, approval and certification, the registration, .the sale and payment of the bonds provided for in this Act.\\\"\\nIt will be seen that the act provides that \\\"such bonds shall mature not later than thirty years from their date\\\" and shall be \\\"payable at such time or times as may be deemed most expedient by the Commissioners' Court.\\\" For the reasons stated in discussing cause No. A \\u2014 101 this provision is in conflict with the provisions of Article 720, which provides that the bonds referred to therein shall run not exceeding forty years and may be redeemable at the pleasure of the county after five years from the issuance of the bonds. Since only such part of the general law rel\\u00e1ting to county bonds as was not in conflict with the provisions ox the act here under consideration was made applicable to the bonds here involved, the provisions of Article 720 are not applicable to bonds issued under the act here under consideration.\\nNo. A-100.\\nThe bonds involved in cause No. A-100 were issued in 1922 by Road District No. .1 of Jefferson County under the provisions of Chapter 2, Title 18, of Revised Statutes of 1911. At that time Article 632 of that chapter read in part as follows:\\n\\\"Such bonds shall mature not later than thirty years from their date, except as otherwise provided in Articles 637a and 637b hereof, with such options of redemption as may be fixed by the Commissioners court, or such bonds may be issued to mature serially in approximately equal portions every year for not exceeding thirty years.\\\" Acts 1917, 35th Leg., p. 461, ch. 203, \\u00a7 1.\\nArticle 633 of the same chapter read as follows:\\n\\\"The general laws of Texas relative to county bonds, not in conflict with the provisions of this subdivision of this chapter shall apply to the issuance, approval, registration, sale and payment of the bonds provided for in said provisions.\\\"\\nIt will be noted that Article 633 makes only such of the general laws relative to county bonds as are not in conflict with the provisions of Chapter 2, applicable to the bonds issued under the provisions of that chapter. The specific provision of Article 632 that the bonds issued under that chapter should have \\\"such options of redemption as may be fixed by the commissioners court\\\" is in direct conflict with the provisions of Article 611 of Chapter 1 of Title 18 of Revised Statutes of 1911, which make the bonds issued under that, chapter redeemable within five years after, their issuance, or after any period not exceeding ten years, which may be fixed by the Commissioners' Court. Article 632 gives the Commissioners' Court unlimited authority to fix the date after which the bonds there. referred to could be redeemed ; whereas Article 611 of Revised Statutes of 1911 withheld from the Commissioners' Court the authority to postpone the county's right to redeem the bonds there referred to for more than ten years after their issuance. Consequently it cannot be said that the provisions of said Article 611 found in Chapter 1 were by reference incorporated in and made applicable to bonds issued under Chapter 2.\\nThe act under which these bonds were originally issued was held unconstitutional and invalid in the case of Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330. Thereafter the Legislature of this State passed validating acts which validated the bonds here involved. See Acts 1926, 39th Leg., G.L., 1st C.S., p. 33, ch. 17; Acts 1926, 39th Leg., Sp.Laws, 1st C.S., p. 1025, ch. 358. It is not necessary to discuss the terms of the validating act. It is sufficient to say that the validating acts contain nothing to indicate that it was the intention of the Legislature to make the provisions of Article 611 applicable to such bonds. Consequently the bonds sought to be refunded in this instance are not redeemable at this time.\\nNo. A-102.\\nChapter 163 of the Acts of 1931, Reg. Sess., 42nd Leg., p. 269 (now Art. 2368a, Vernon's Anno.Civ.Stats.) authorized the Commissioners' Court to issue refunding bonds to take up outstanding warrants. Accordingly Jefferson County issued bonds in the sum of $125,000 for that purpose. Jefferson County issued those bonds payable serially, no provision being made for their redemption at an earlier date. These are the bonds which Jefferson County now desires to refund by the issuance of new bonds.\\nThe act authorizing the issuance of these refunding bonds provided, in effect, that notice of the intention to refund such outstanding indebtedness should be published in a newspaper, and unless a protest was filed the Commissioners' Court could issue the bonds; but if as much as ten per cent, of the voters filed a protest, the matter should be submitted to an election as to whether the indebtedness should be refunded by the issuance of bonds. The act further provided:\\n\\\"The Commissioners' Court or governing body shall determine the time and the place or places of holding said election; and the manner of holding same shall be governed by the laws of the State regulating elections for the issuance of other county or city bonds under Chapters 1 and 2, Title 22, Revised Civil Statutes of 1925.\\\" \\u00a77.\\nThe mere fact that the act provided that the election to determine whether the bonds should be issued should be held in the manner prescribed for holding of elections for the issuance of other county bonds certainly is not broad enough to incorporate and make applicable the provisions of Article 720 which relate to the time of redemption of the bonds.\\nSaid act further provides:\\n\\\"The funding bonds hereby authorized shall be payable serially not exceeding forty years from the date thereof, unless the Commissioners' Court or, governing body affirmatively adjudge that the financial condition of such county or city will not permit, in such installments as will make the burden of taxation to support same, approximately uniform throughout the .term of said bond issue. Such bonds shall be executed and issued in the same manner now provided by law for the execution and issuance of bonds to refund outstanding county or city bonds.\\\"\\nIn view of the fact that the act so clearly authorizes the Commissioners' Court to fix the date for the payment of such bonds, we are likewise of the opinion that the provision that \\\"Such bonds shall be executed and issued in the same manner now provided by law for the execution and issuance of bonds to refund outstanding county or city bonds,\\\" is not sufficient to incorporate and make applicable thereto the provisions of Article 720 relating to the right to redeem the bonds prior to their maturity. .\\nIt is contended that the provisions of Article 752x, Vernon's Anno.Civ.Stats. (Acts 1929, 41st Leg., 2nd C.S., p. 149, ch. 74) are applicable to the bonds here under consideration, and particularly those involved in cause No. A-100. That article read in part as follows:\\n\\\"That the Commissioners' Courts of the several counties in Texas shall have authority to refund any Road Bonds that have been issued or 'that may hereafter be issued by authority of any law enacted pursuant to Section 52 of Article 3 of the Constitution of Texas, when such Road Bonds have been issued for and on behalf of a political subdivision or defined district or consolidated district in such county. Such refunding .bonds shall be made to mature serially over a period not exceeding forty years from their date, as may be determined by the Commissioners' Court, and they may be made to bear interest at the same or a lower rate than the original bonds which are being refunded.\\\"\\nThat article does authorize Commissioners' Courts to refund any road bonds previously issued, or that may be thereafter issued, by any road district. But the only reasonable construction to be placed thereon is that it was intended to authorize the Commissioners' Court to issue refunding bonds for the Road District when the old bonds sought to be refunded were then redeemable, or when they could be redeemed with the consent of the owner thereof. If it was intended thereby to alter bonds previously issued and Isold so as to make them redeemable contrary to their terms as construed in the light of - the -statutes as they existed at the'time the bonds were issued and sold, and without the consent of the owner thereof, then the statute would be void as impairing the obligation of an existing contract. See Article I, Section 16, of the Constitution, Vernon's Ann.St. We think the only purpose of this act was to make it clear that the Commissioners' Court was the proper authority to issue the refunding bonds for the Road District where the bonds sought to be refunded were otherwise redeemable.\\nWe are of the opinion that none of the bonds sought to be refunded are redeemable at this time, and consequently the Attorney General properly refused to approve the issuance of the new bonds.\\nAll four applications for writs of mandamus are retused.\"}"

tex/10200279.json

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+"{\"id\": \"10200279\", \"name\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\", \"name_abbreviation\": \"El Paso Building & Construction Trades Council v. Texas Highway Commission\", \"decision_date\": \"1950-05-17\", \"docket_number\": \"No. .9905\", \"first_page\": \"533\", \"last_page\": \"539\", \"citations\": \"231 S.W.2d 533\", \"volume\": \"231\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:40:52.981150+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\", \"head_matter\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\\nNo. 9905.\\nCourt of Civil Appeals of Texas. Austin.\\nMay 17, 1950.\\nRehearing Denied June 7, 1950.\\nMullinax, Wells & Ball, L.N.D. Wells, Jr., Dallas, Creekmore Fath, Austin, for appellant.\\nPrice Daniel, Attorney General, William S. Lott, Ned McDaniel, Clinton Foshee, Assistant Attorneys General, for appellees.\", \"word_count\": \"3587\", \"char_count\": \"21413\", \"text\": \"ARCHER, Chief Justice.\\nAppellant, labor union, brought suit in the 53rd District Court of Travis County against the Texas Highway Commission, the individual members thereof, and the State Highway Engineer, seeking a declaratory judgment that defendants' prevailing wage rate determination in and for El Paso County was substandard, unlawful, and void, and further seeking a mandatory injunction requiring defendants to reconsider and redetermine prevailing wage rates in the El Paso locality as required by Article 5159a, Vernon's Ann. Civ. St.\\nTemporary restraining order was issued prohibiting execution of contracts for construction of certain highway projects in the El Paso locality, unless such contracts required payment of the true and actually prevailing rate of wages in the El Paso locality.\\nDefendants thereafter filed plea in abatement and motion to dismiss, and, subject thereto, exceptions and answer.\\nThe trial court, after hearing evidence on plaintiff's application for temporary injunction, granted defendants' oral motion for judgment and rendered judgment denying temporary injunction, sustaining defendants' plea in abatement, and dismissing the suit.\\nThis appeal is based on five points assigned as error by the plaintiff, but may be considered and discussed as two points.\\nThe first point complains of the error of the trial court in sustaining the plea in abatement, on the ground that plaintiff did not have a justiciable interest and standing to bring and maintain the suit.\\nArticle 5159a, V.A.C.S., is long and we do not embody it herein, but it provides that:\\n\\\"Sec. 1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed, .\\n\\\"Sec. 2. The public body awarding any contract for public work on behalf of the State, or on behalf of any county, city and county, city, town, district or other political subdivision thereof, or otherwise undertaking any public work, shall ascertain the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of workman or mechanic needed to execute the contract, .\\n\\\"Sec. 3. The contractor and each subcontractor shall keep, or cause to be kept, an accurate record showing the names and occupations of all laborers, workmen and mechanics employed by him, in connection with the said public work, and showing also the actual per diem wages paid to each of such workers, which record shall be open at all reasonable hours to the inspection of the public body awarding the contract, its officers and agents.\\n\\\"Sec. 4. Any construction or repair work done under contract, and paid for in whole or in part out of public funds, other than work done directly by any public utility company pursuant to order of the Railroad Commission or other public authority, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds, shall be held to be 'public works' within the meaning of this Act. The term 'locality in which the work is performed' shall be held to mean the county, city and county, city, town, district or other political subdivision of this State in which the building, highway, road, excavation, or other structure, project, development or improvement is situated in all cases in which the contract is awarded by the State, or any public body thereof, and shall be held to mean the limits of the county, city and county, city, town, district or other political subdivisions on whose behalf the contract is awarded in all other cases. The term 'general prevailing rate of per diem wages' shall be the rate determined upon as such rate by the public body awarding the contract, or authorizing the work, whose decision in the matter shall be final. Nothing in this Act, however, shall be construed to prohibit the payment to any laborer, workman or mechanic employed on any public work as aforesaid of more than the said general prevailing rate of wages.\\n\\n\\\"Sec. 7. The fact that there is no adequate law protecting laborers, workmen and mechanics engaged in doing and performing work on public works in Texas and its political subdivisions, and the further fact that many contractors are taking advantage of the present industrial and economic condition to beat down wages to a level far below that required to maintain a laborer, workman or mechanic in reasonable circumstances, and the further fact that this condition has created a social problem demanding the immediate attention of the legislative department of our State, create an emergency and an imperative public necessity that the Constitutional Rule requiring that bills be read on three several days be suspended, and said Rule is hereby suspended, and this Act shall be in full force and effect from and after its passage, and it is so enacted.\\\"\\nThe plaintiff alleges that it is party to written collective bargaining contracts or oral wage agreements with 93 contractors and subcontractors employing 2,470 workers in the contract construction industry in the El Paso locality. These employers pay rates ranging from 95\\u2021 to $2.50 per hour, depending on the craft classification, and are under written contract or oral agreement to pay not less than these rates. Also, as the mouthpiece of the laboring man in this industry in the El Paso locality, has intense interest in the preservation and improvement of wage standards. Indeed, the very purpose for which plaintiff was organized, its very reason for existing, is to preserve and protect the wage standards and working conditions of laboring men in this locality.\\nAs is to be noted, Section 2 requires that the public body awarding any contract for public work to \\\"ascertain the general prevailing rate of per diem wages in the locality for each Craft or type of workman or mechanic needed,\\\" and that such wage rate be specified in the call for bids.\\nThe Highway Commission in 1945 declared that the prevailing wage rate on highway construction in El Paso locality to be from 45\\u215c to $1.37\\u00bd per hour, and all contracts so let contained the wage determinations as above.\\nIn the fall of 1949 the Commission let a contract in connection with the Cotton Avenue Overpass in El Paso, and fixed the wage scale at 45\\u215d\\u215e to $1.37\\u00bd per hour, which, upon protest by the Union, resulted in a labor dispute, and picketing developed. Subsequently, the prevailing rates were raised to 75\\u2021 to $1.65. The Union continued to protest these rates as not being the true prevailing rates.\\nIn December 1949 the Commission invited bids on certain public work called \\\"Main Street Overpass,\\\" to be constructed in the City of El Paso, Texas, and in the notice stated that it was a public works project as defined by House Bill No. 54 of the 43rd Legislature, Vernon's Ann.Civ.St. art. 5159a, and House Bill No. 115 of the 44th Legislature, Vernon's Ann.P.C. art. 1580, and as such was subject to the provisions of said bills, and that the wage scale had been ascertained and the rates prevailing in the locality in which the work was to be done. The general rate of per diem wages was declared to be from 45^ to $1.37 per hour. On January 3, 1950, the plaintiff by letter protested to the Commission the failure to determine the actual prevailing wage rates in the locality where the Main Street Overpass was to be constructed. On January 6, 1950, the Commission advised the plaintiffs attorneys by wire that a hearing would be had on January 26, 1950. The hearing was had and subsequently the Commission declared the general prevailing wage rate per diem in said locality to be from 75\\u2021 to $1.65 per hour.\\nThe institution of this cause followed and the plaintiff alleged the wage rate declared by defendants was not the prevailing rate within the meaning of Article 5159a, V.A. C.S.; that the determination has no basis in fact; that the general prevailing wage rate was from at least 85\\u2021 to $2.25 per hour; that the said wage rate as determined was as abuse of discretion and unlawful and void, because (1) a single prevailing wage rate determination covered a great number of cities, counties and political subdivisions, including the locality in issue, and did not make a separate and independent determination for each locality as provided in Section 4; (2) that the determination was not based on facts and without relation to wages actually prevailing in El Paso locality; (3) that the defendants ignored data that was relevant, to-wit: the wage determination by the City of El Paso Commissioners Court of El Paso County, the Secretary of Labor, and every other public agency which lets contracts for public work in that locality ; the' rates presently being paid on highway underpass and bridge construction in the .locality; current data available from the Texas Employment Commission; and affidavits from contract construction employers in the El Paso locality, which indicate that three-fourths of the persons employed in construction industry are now actually receiving wages of from ten cents to fifty cents per hour in excess of the Commission's determination.\\nA temporary restraining order was made by the trial court and hearing.fixed, and upon such hearing the court had before it the pleadings, with exhibits attached, and heard the testimony of the witnesses who testified, and upon the mlose of the plaintiff's case and before the defendants had. offered any direct testimony, the defendants filed their motion for judgment, on the grounds that the plaintiff in the then state of the record had not discharged its burden of proving its case. The court denied the application for a temporary injunction and sustained the defendants' plea in abatement, and dismissed the cause.\\nAs has been indicated above, the right of the plaintiff to bring and maintain this suit is the prime question to be determined by this court. If the plaintiff did not have a justiciable interest and standing to bring and maintain the suit, there was no necessity for the trial court to have refused the temporary injunction, since there were no proper parties before the court, and the order \\\"of dismissal would have effectively disposed of the case.\\nThe purpose of the enactment of the law was for the benefit of labor and to prevent the beating down of wages to a level far below that required to maintain a laborer, workman or mechanic in reasonable circumstances.\\nWe believe that the plaintiff, El Paso Building and Construction Trades Council, seeking to be the mouthpiece for union labor in the El Paso locality, has a sufficient interest in the subject matter to enable it to institute and maintain the proceedings in the instant case.\\n\\\"We think the intention is clearly apparent from the terms of the contract, relating to the rate and scale of wages to be paid, that such provisions were included for the benefit and protection of the laborers employed in constructing the building. This, construction is further fortified by the fact, that the United States Department of Labor was a party to the agreement. 'The purpose of the Department of Labor shall be to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment.' U.S.C.A., title 5, chap. 11, Department of Labor, \\u00a7 611.\\\" Hearn v. Ralph Sollitt & Sons Const. Co., Tex.Civ.App., 93 S.W.2d 551, 556.\\nWithout the right to bring and maintain the suit on behalf of labor the statute would be ineffectual in its requirement that the public body 'ascertain the prevailing rate, and that such body: in the letting of contracts could ignore such duty at its discre- . tion; this it cannot do. Southern Prison Co. v. Rennels, Tex.Civ.App., 110 S.W.2d 606, 607. '\\nIn Austin Bridge Co. v. Teague, Tex.Civ.App., 149 S.W.2d 674, at page 676 (reversed on other grounds in 137 Tex. 119,-152 S.W.2d 1091), this court stated that: \\\"Appellants concede that the Act is primarily for the protection and benefit of the laborers and workmen in securing to them payment of the minimum wages prescribed.\\\"\\nIn Iiearn v. Ralph Sollitt & Sons Const.' Co., supra, the court said: \\\"We think.the intention is clearly apparent from the terms of the contract, relating to the rate and scale of wages to- be paid, that such provisions were included for the benefit and protection of the laborers employed in constructing the building. \\\"\\nThe issue of the right of the .Union to maintain, this suit has not previously been. presented to and determined by one of our courts; the subject has had consideration by courts of some of the other states.\\nIn Denver Bldg. & Construction Trades Council v. Vail, 103 Colo. 364, 86 P.2d 267, 269, the Colorado Supreme Court held: \\\"It is conceded that the Trades Council seeks to be the mouthpiece for union labor in the particular lines of work to be involved in the proposed construction. No single workman who hopes or desires to be employed on one of these projects could be expected to go to the trouble and expense of bringing an action individually. In the light of the practical situation, and in view of the obvious attempt of the General Assembly we hold that the Trades Council has a sufficient interest in the subject matter to enable it to institute the proceedings in the case at bar.\\\"\\nIn Southern Prison Co. v. Rennels, Tex. Civ.App., 110 S.W.2d 606, 607, the court held that the- statute is especially-to protect workmen from being required, if they accept employment, to work for less than the prevailing wage paid in the county for the same class of work, and that (the public body) was not authorized to ignore such power and duty at its discretion to determine the prevailing wage.\\nIn the decision of the U. S. Supreme Court in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, at page 385 if., 42 S.Ct. 570, at page 574 ff., 66 L. Ed. 975, 27 A.L.R. 762, it was held: \\\"Undoubtedly at common law an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members. But the growth and necessities of these great labor organizations have brought affirmative legal recognition' of their existence and usefulness .and provisions for their protection, which their members have found necessary. They have' been given distinct and separate representation and the right to appear to represent- union interests in statutory arbi-trations, and before official labor boards. More than this, equitable procedure adapting itself to modern needs has grown to- recognize the need of representation by one person of many, too numerous to sue or to be sued See U. S. v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202.\\nIn Construction and General Labor Union v. Stephenson, Tex. Sup., 225 S.W.2d 958, 961, it was held: \\\"The Court of Civil Appeals undertook to distinguish the Swing case, supra, (Amer. Fed. of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855) citing Carpenters & Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143, on the ground that there was no 'interdepend-ence of economic interest' between the petitioners and the Stephenson's employees, emphasizing the facts that house moving is a specialized business, that there was no house movers' union for Stephenson's employees to join, and that Stephenson's employees, performed .a variety of tasks, many of which were not performed by any mem- bers of the picketing unions. Conceding all-of this to be true, still we think that the undisputed facts compel the conclusion that a relation existed between the work which Stephenson's employees were doing; at the time of the picketing and the work which the union members were accustomed to perform which would give them a real and substantial economic interest in the work on Stephenson's job. The undisputed evidence shows that the work of erecting the steel trusses was work which members of the iron workers' union were accustomed to do. Other work being done in the erection of the building came within the tasks usually performed by members of the carpenters' and laborers' unions. Moreover, union members were employed by the county on the same job and had to work alongside of Stephenson's employees. We believe, therefore, that it must be concluded that the unions had a legitimate concern with the work done by Stephenson's employees, and that therefore the injunction cannot be sustained on the basis of the absence of such concern.\\\"\\nFor an analogy only we wish to call attention to the opinion of the Supreme Court in Hexter Title and Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 948, 157 A.L.R. 268, where it was held that a grievance committee of the State Bar of Texas for the Fifth Congressional District \\\"has an interest in the subject of the suit peculiar to it\\\" sufficient for an injunction to enjoin the illegal practice of law.\\nIn a very well prepared brief by the Attorney General in behalf of the defendants, we have been cited a number of cases, but which may be distinguished from this case.\\nIn Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 877, 84 L.Ed. 1108, the court said: \\\"This Act's purpose was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment. As stated in the Report of the House Committee on the Judiciary on the Bill, 'The object of the bill is to require persons having contracts with the Government to conform to certain labor conditions in the performance of the contracts and thus to eliminate the practice under which the Government is compelled to deal with sweat shops.\\\"\\nThe court further stated: \\\"Respondents have no standing in court to enforce that responsibility or to represent the public's interest in the Secretary's compliance with the Act. That respondents sought to vindicate such a public right or interest is made apparent both by their prayer that the determination be suspended as to the entire steel industry and by the extent of the injunction granted.\\\"\\nAnd it appears that the decision is based on \\\"the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.\\\"\\nWe believe that the plaintiff in the present case was seeking relief from the action of the public body concerning a matter in which it had a real and legitimate concern and was not seeking to vindicate a public right, and one in which it had no more than a mere possible injury to the public.\\nWe believe that the cases cited are ones in which the plaintiffs sought to interfere with a public right, and were not cases in which the individuals were threatened with some damages peculiar to them, and that individual and personal rights gave them a personal interest in the subject matter. Holt & Co. v. Wheeler Co., Tex.Civ.App., 235 S.W. 226; San Patricio Co. v. Maxwell, Tex.Civ.App., 56 S.W.2d 295; Wilson v. Pierce, Tex.Civ.App., 123 S.W.2d 695.\\nThe trial court was in error in sustaining the plea in abatement.\\nAppellees have practically, although not actually, staked their entire case upon the point just determined against them, but since the case is to be reversed and further proceedings are quite likely we will, for guidance of the trial court, briefly express our views upon other questions which, as indicated from the record, will arise.\\nThe statute 5159a, supra, provides that the decision of the public body in determining the prevailing rate of per diem wages shall be \\\"final.\\\" We do not construe this provision as exempting the action of the Ccmmission in this regard from judicial review.\\nThe general rule is that the right of appeal to the courts from an order of an administrative board will be implied where such right is not expressly conferred by statute. English Freight Co. v. Knox, Tex.Civ.App., 180 S.W.2d 633 (Austin CCA. Writ Ref. W.O.M.), and cases therein cited.\\nWe are further of the opinion that the substantial evidence rule as applied to orders of the Railroad Commission is the standard by which the validity of order in suit must be measured. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338.\\nSince the evidence heard below was only ex parte we cannot know what it will show when fully developed. We do say, however, that if the evidence is substantially the same upon further hearing as it now is, that a temporary injunction preventing the letting of the contract should be granted.\\nThe judgment of the trial court is reversed and this cause remanded for further proceedings not inconsistent with the views expressed in this opinion.\\nReversed and remanded.\"}"

tex/10203072.json

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+"{\"id\": \"10203072\", \"name\": \"FIELDS v. STATE\", \"name_abbreviation\": \"Fields v. State\", \"decision_date\": \"1949-02-09\", \"docket_number\": \"No. 24261\", \"first_page\": \"462\", \"last_page\": \"462\", \"citations\": \"218 S.W.2d 462\", \"volume\": \"218\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:07:57.544725+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FIELDS v. STATE.\", \"head_matter\": \"FIELDS v. STATE.\\nNo. 24261.\\nCourt of Criminal Appeals of Texas.\\nFeb. 9, 1949.\\nOn Motion to Reinstate Appeal March 16, 1949.\\nNo appearance for appellant.\\nErnest S. Goens, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"353\", \"char_count\": \"2158\", \"text\": \"HAWKINS, Presiding Judge.\\nConviction is for the transportation of intoxicating liquor in dry area, punishment assessed being a fine of $500 and 30 days in the county jail.\\nThe record contains no notice of appeal as is required by Art. 827, C.C.P.\\nThe appeal is dismissed.\\nOn Motion to Reinstate Appeal.\\nBEAUCHAMP, Judge.\\nAppellant has filed herein supplemental transcript correcting the record, which failed to contain a notice of appeal entered of record. Accordingly, his motion to reinstate the appeal is granted.\\nWe are asked to reverse the case on the ground that the complaint was not sworn to or certified by any person. The record does not sustain this contention.\\nThe other ground presents the contention that there is a variance between the complaint and information. The complaint, signed and sworn to by J. T. Morgan on the 7th day of May, 1948, charges the unlawful transportation of \\\"whisky and wine.\\\" The information filed by the district attorney contains two counts, one charging transportation of an alcoholic beverage, \\\"to-wit: Forty-Eight (48) Four-Fifths quarts of wine.\\\" The second count sets out that appellant did unlawfully transport \\\"an alcoholic beverage to-wit, Twenty-Four (24) pints of whiskey.\\\" Together the two counts in the information describe the same thing that is alleged in the complaint. In addition the exact amounts are specified and it is further stated that it was on \\\"State Highway No. 180,\\\" in Borden County, whereas the complaint only states that it was in Borden County.\\nThe pleading is awkward and subject to criticism, but we are unable to find a conflict. We do not think there is authority for sustaining appellant's contention in this respect. *\\nThe court's charge further confuses the issues but no complaint was lodged against it and, consequently, that matter is not before us for consideration.\\nThe case is now considered on its merits and the judgment of the trial court is affirmed.\"}"

tex/10203116.json

@@ -0,0 +1 @@
+"{\"id\": \"10203116\", \"name\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Aguirre v. State\", \"decision_date\": \"1954-10-20\", \"docket_number\": \"No. 27090\", \"first_page\": \"819\", \"last_page\": \"819\", \"citations\": \"271 S.W.2d 819\", \"volume\": \"271\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:52:35.655363+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee.\\nNo. 27090.\\nCourt of Criminal Appeals of Texas.\\nOct. 20, 1954.\\nNo attorney on appeal for appellant.\\nWesley Dice, .State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"101\", \"char_count\": \"613\", \"text\": \"WOODLEY, Judge.\\nThe conviction is for the offense of assault with intent to murder. Punishment was assessed at two years in the penitentiary.\\nThe record on appeal does not reflect that appellant has been sentenced in the trial court. Where no sentence has been pronounced in the trial court, this court is without jurisdiction to enter any order except to dismiss the appeal.\\nThe appeal is dismissed.\"}"

tex/10205081.json

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+"{\"id\": \"10205081\", \"name\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\", \"name_abbreviation\": \"Hearn v. Hanlon-Buchanan, Inc.\", \"decision_date\": \"1944-02-18\", \"docket_number\": \"No. 14612\", \"first_page\": \"364\", \"last_page\": \"371\", \"citations\": \"179 S.W.2d 364\", \"volume\": \"179\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:10:41.641282+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\", \"head_matter\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\\nNo. 14612.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nFeb. 18, 1944.\\nRehearing Denied March 24, 1944.\\nSmoot & Smoot, of Wichita Falls, for appellants.\\nJames E. Allison, of Tulsa, Okl., and Rogers & Montgomery, of Wichita Falls, for appellees.\", \"word_count\": \"3745\", \"char_count\": \"22233\", \"text\": \"SPEER, Justice.\\nMark N. Hearn and Guydell Hearn and their respective wives, to whom we shall refer as plaintiffs, sued Hanlon-Buchanan, Inc., and Henaghan & Hanlon, Inc., as corporations, to which we shall refer as defendants, to recover $1500 represented by two drafts for $750 each.\\nPlaintiffs resided in California and defendants had their place of business and general offices at Tulsa, Oklahoma. Defendants held an oil and gas lease on a large body of land in Clay County, Texas, in which tract plaintiffs owned 150 acres. Defendants desired an extension of the lease and requested George C. Meredith, a broker at Jacksboro, Texas, to ascertain from the original lessor if the extension could be obtained. Lessor had died since executing the original lease and plaintiffs, her grandsons, had inherited 150 acres of the tract. Defendants sent Meredith a typewritten form of extension, such as they wanted. Meredith advised defendants that lessor was dead and the heirs would Have to be located and that he would investigate and advise defendants what he could find out before closing any renewal proposition. Meredith'employed G. C. Rounsaville, who lived near the land and knew plaintiffs, to contact them and' find out upon what terms the extension ' agreement could be had. Plaintiffs wrote Rounsaville they wanted $1500 for the extension. Rounsaville notified Meredith of plaintiffs' requirement of price and further that they would expect the extension agreement to obligate lessees to drill a well on the land to a depth similar to other production in the area. When Meredith saw plaintiffs' letter, he told Rounsaville, substantially, that they would send the extension agreement to plaintiffs and try to close it, but that he did not think defendants would pay that price for the extension. Defendants had previously sent to Meredith a form of extension they desired, for use by him when satisfactory arrangements had been made. Meredith drew two drafts on defendants through National Bank of Tulsa, Oklahoma, for $750 each, attached to them the prepared form of extension and gave them to Rounsaville for transmission to plaintiffs. The extension agreement was executed by plaintiffs, and delivered by them to a California bank for transmission, along with the two drafts. The \\\"Customer's Drafts\\\" had written across the top of each these words: \\\"For collection and approval of extension agreement attached by James E. Allison on the Laura Newton Lease, T. E. & L. Sur. Nos. 2673 and 2674.\\\" The drafts were drawn on a form used by First National Bank, Jacksboro, Texas, and one of which was payable to each of the plaintiffs in the sum of $750.00. Both drafts were: \\\"To Han-lon-Buchanan, Inc., Henaghan & Hanlon, Inc., National Bank of Tulsa, Tulsa, Oklahoma,\\\" and signed by George C. Meredith.\\nWhen the extension agreement, which accompanied the drafts, was sent to the drawee bank and defendants' attorney examined it, there had been written into it a provision which was not in the instrument when sent by defendants to Meredith. The added portion was so placed in the instrument as to break into the middle of another provision thereof. The following inside quotation is the part which had been added: \\\" said lease is extended as a single lease covering all of said lands as to all royalty and mineral interests for which the undersigned is empowered to join \\u2014 'it being understood that in the event of drilling the well will be drilled to the depth of the Shell pay on the Henderson lease' \\u2014 in such extension of said lease\\nThe added provision was referred to as being at the bottom of a page in the instrument, which indicates that it was added at that place because sufficient space was found there for it.\\nOn October 6, 1942, defendants wired plaintiffs that their price was too high and asked them to reduce it. On October 7, 1942, plaintiffs wired defendants, declining to reduce the price. On October 14, 1942, defendants wired plaintiffs, declining to accept the extension agreement and pay the drafts, and advised they were drilling on the land. It was stipulated that the extension agreement and drafts were returned to plaintiffs on October 13, 1942, and further stipulated that the well was completed as a producer and was flowing on November 13, 1942 (two days before the expiration of the original lease held by defendants).\\nTrial was to a jury. At the conclusion of taking testimony, defendants moved for an instructed verdict. The motion was denied. Upon special issues the verdict was in all respects favorable to plaintiffs. Motion for judgment non obstante veredicto was filed by defendants and upon notice, appearances and a hearing, judgment was entered for defendants notwithstanding the verdict. The plaintiffs have appealed.\\nAppropriate points complain of the action of the court in entering judgment non obstante veredicto, and in refusing to' enter judgment for plaintiffs on the verdict. These points are briefed together and we may so discuss them.\\nAs we view' this record, the controlling questions are: (1) The nature of Meredith's agency and (2) the extent of his authority to bind defendants thereunder.\\nFor purposes of this opinion it may be said that agencies as a rule are either general or special. When agency is established without a showing of its extent, it will be presumed to be general and not special. 2 Tex.Jur. 406, sect. 21. In the instant case the testimony without dispute shows the ex-tent of Meredith's agency and we need not pay further attention to general agencies.\\nPlaintiffs called Meredith to the witness stand and proved by him the nature of his employment and on cross-examination he detailed the manner of his employment and the particular duties he was to perform. This testimony was admissible. In some cases broad language has been. used to the effect that agency cannot be proved or disproved by the declarations of the alleged agent, but such expressions are applicable only to declarations made when not called to testify and are not applicable when the purported agent is called to give direct testimony upon the trial concerning such matters. Slaughter & Veal v. Schneider, Tex.Civ.App., 289 S.W. 414, writ dismissed. 2 Tex.Jur. 538, sect. 137.\\nMeredith testified in effect that he was a broker and oil operator; maintained an office at Jacksboro, Texas; had blocked acreage for defendants on special contracts before; had done other services for defendants when called upon, and was paid each time for such services as he performed. He had many clients in his busi ness; his custom in the past with defendants was, that if they wanted him to do something for them they would write him to that effect, and if it was to buy a lease for them they would tell him how much to pay; he had sometimes offered to sell leases to defendants and attached drafts thereto; some have been accepted, others have been rejected; he had never at any time determined for defendants what they would pay for property; his instructions as to prices have always come from either Mr. Boyles, the secretary, or Mr. Allison, the attorney; it was his custom in the past when he sent leases and drafts, to indicate that they were for inspection and approval of Mr. Allison; if Allison did not approve them, they did not go through.\\nMeredith said he had received a letter from defendants about procuring an extension of the lease involved, and in giving the substance of the correspondence he said defendants wanted to see how cheap they could get the extension. The letter referred to by the witness was in evidence. It was dated August 17, 1942, was signed by J. H. Boyles; in substance it advised Meredith of the early expiration of the Newton lease; and expressed doubt if they could save the lease before its expiration; the letter concluded with this language: \\\" Therefore, we must act promptly and I ask that you kindly see what you can do with Mrs. Newton (original lessor) without delay.\\\" On August 19, 1942, Meredith wrote defendants, acknowledging receipt of their letter, and advising that Mrs. Newton was dead; that he would get in touch with the heirs: \\\"I will comply with your letter and advise what can be done in regard to extension. I will advise you best that can be done before closing any renewal proposition.\\\" None of the foregoing facts was in any way contradicted. So it must be said that clearly Meredith's agency was special and not general.\\nIt is the settled rule that any one dealing with a special agent is bound at his peril to inquire of such agent's instructions \\u2014to ascertain the extent of such agent's authority. 2 Tex.Jur. 408, sect. 24.\\nIn 2 Tex.Jur. 406, sect. 22, this is said: \\\"A special agent cannot exercise authority in excess of his powers, which must be ascertained from the language used in conferring authority upon him.\\\" In the same section we note this language: \\\"If a special agent exceeds his authority, the principal is not bound.\\\" To these general rules may be added: He may also do such other things in connection with his assigned duties as are apparently necessary to accomplish the end sought by the principal through the agent. Great American Casualty Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050, writ refused. The cited case thoroughly discusses general and special agencies and collates many authorities for the rule announced. It is held in the Eichelberger case, supra, that by apparent authority of the agent is meant such authority as a reasonably prudent person, using diligence, in view of the principal's conduct, would naturally suppose the agent to possess. It was also held there, that apparent authority is based on estoppel, and arises from one of two sources: (1) When the principal knowingly permits the agent to hold himself out as having the authority imputed to him, and (2) when the principal clothes the agent with the indicia of authority so as to lead a reasonably prudent man to believe he actually has such authority. The same rules are again announced in Wewerka v. Lantron, Tex.Civ.App., 174 S.W.2d 630, 632, writ dismissed, want of merit.\\nIn 2 C.J. 574, \\u00a7 214, this is said: \\\"The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself, by his acts or conduct, has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority See also 2 C.J.S., Agency, \\u00a7 96.\\nWe find no testimony in this record which remotely tends to show that defendants did or said anything in connection with the drafts sued on, upon which plaintiffs could rely to estop defendants from asserting a lack of apparent authority in Meredith to agree with plaintiffs upon an amount to be paid for the extension agreement. There is no testimony before us tending to show that Meredith ever at any previous time did or was instructed by defendants to do such things as plaintiffs claim he did in this case. His original letter of instructions asking him to find out if an extension agreement could be had and his reply that he would do so and advise defendants of the result before closing any proposition, refute all implied general pow ers that might be imputed to him by virtue of a general agency; nothing appears to show these powers were ever enlarged. It is certain that plaintiffs were not misled to their detriment by anything defendants may have said or done because they never knew any part of it. When we consider the powers and duties actually enjoined upon Meredith, even if known to plaintiffs, his implied powers and duties to effectuate the purposes of his agency could not be said to lead any prudent man to believe he could fix the price defendant was to pay and obligate it to drill a well of specified depth in addition to simply ascertaining if an extension agreement could be obtained. See Wewerka v. Lantron, Tex.Civ.App., 174 S.W.2d 630, writ refused, want of merit, and National Cash Register Co. v. Wichita Frozen Food Lockers, Inc,, Tex. Civ.App., 172 S.W.2d 781, affirmed Tex. Sup., 176 S.W.2d 161.\\nIt is not shown that plaintiffs knew anything about Meredith's agency, such as it was; they did not know him, they dealt with Rounsaville, their former neighbor and friend. To avail plaintiffs of their plea of estoppel, they must show that some act or acts of defendants caused them to alter their situation to their detriment by a reliance thereon. Fenner & Beane v. Lincoln, Tex.Civ.App., 101 S.W.2d 305. In the last cited case, the court again discusses the principles of estoppel applicable to the apparent scope of a special agent's authority, especially when, as in this case, the complaining party knew nothing of the agency and its restrictions, between the defendant and the purported agent; in such circumstances, it is held that such acts of either the principal or agent, when unknown to the third party, may not be considered. Plaintiff recovered in that case, but the judgment was reversed and rendered by the appellate court.\\n[14] It may be conceded that an agent may employ a subagent and delegate to him matters of a ministerial nature requiring no act or discretion entrusted by the principal to the agent, but where, as in this case, it is \\\"obvious that when the agent (Meredith) himself has no authority to do the act in controversy (fix the price of the lease) he lacks authority to delegate the doing of it to some one else\\\". 2 Tex.Jur. 472, sect. 76.\\nIt is argued by plaintiffs that since Meredith had testified that defendants wanted him to see how cheap he could get the renewal, this furnished some evidence that there had been additional communications between him and defendants as to his authority, which plaintiffs had been unable to. procure. We also note that Meredith, in attempting to summarize what defendants, had asked him to do, said he had had no. communications from them except the extension agreement and \\\"a request to see what I could get them for.\\\" When we consider the actual language used in the correspondence, quoted in other parts of this opinion, we think the witness' short-hand! form of the meaning of such instructions are not unreasonable deductions from the language used. The contention of plaintiffs is no more than a surmise or suspicion that something was said and done, not disclosed by the testimony. It is also argued in effect that irrespective of who wrote the additional provision in the instrument obligating defendants to drill a well to a specified depth, defendants did not reject the purported renewal instrument because of that provision. While it is true defendants did not specifically object to the document because of that provision, yet it is reasonable to assume that the more onerous the conditions and provisions of a contract, the less attractive it is to the one upon whom the burden is imposed, and this naturally would affect the price to be paid.\\nUnder familiar rules of law in such cases as this, we must consider all testimony in its most favorable light to the one against whom a judgment non obstante veredicto has been entered. Therefore it must be conceded that Meredith wrote the extra provision in the instrument as testified to by Rounsaville, although Meredith denied it. A purported carbon copy of the original was introduced in evidence and it did not contain the controverted provision. If Meredith did so alter the original instrument (and it cannot be said that the alteration was immaterial), clearly its execution in its altered form was different from what it was when entrusted to Meredith by defendants, and all was unknown to-plaintiffs. The manner in which the alteration was made, in the middle of another sentence and provision, even though one did not detect that it had been written on a different typewriter, it occurs to us, was such as to put a person of ordinary care on inquiry as to why it appeared in that form. Certainly such alteration cannot be traced to defendants, for plaintiffs did not know Meredith nor that defendants had invoked his aid in the matter. To say the least of the situation, absent fraud and mutual mistake, the minds of plaintiffs and defendants did not meet on the proposed instrument. Wewerka v. Lantron, Tex. Civ.App., 174 S.W.2d 630, 633, writ refused, want of merit.\\nPlaintiffs argue here, in effect, that since agency of Meredith was admitted by defendants, and defendants having offered no testimony as to instructions given Meredith, it will be presumed that Meredith had all necessary authority to do whatever was necessary and proper for the performance of his agency in the matter, and this embraced Meredith's authority to agree on the price to be paid. They cite such cases as Birge-Forbes Co. v. St. Louis & S. F. R. Co., 53 Tex.Civ.App. 55, 115 S.W. 333, writ refused. In that opinion, however, the court announced the rule to be: \\\"Every agency, unless expressly limited, carries with it, as an incident to do whatever is necessary The italicized words by us make the difference in the rule there announced and in the case before us. The limitations put on Meredith's agency are undisputed in this record.\\nWe hold that this record is wholly void of any evidence of a general agency in Meredith, and that there are no facts or circumstances of probative value tending to show that Meredith could be said to be acting within the scope of his apparent or implied authority to agree with plaintiffs, if he did so agree, on the price to be paid for their extension agreement, and thereby bind defendants. All points raising these questions are overruled.\\nSeventh and eighth points complain of the judgment notwithstanding the verdict, especially applicable to the notations put on the drafts by Meredith when they were sent by Rounsaville to plaintiffs. For a better understanding, we repeat those notations: They were, \\\"For collection and approval of extension agreement attached by James E. Allison on the Laura Newton lease, T. E. & L. Sur. Nos. 2673 and 2674\\\". Meredith testified that his intention in putting that notation on the drafts was to enable James E. Allison to pass on the extension agreement and the amounts to be paid before acceptance by defendants. Plaintiffs' construction of the language was to the effect that the drafts and extension agreement were being sent to plaintiffs so that they could examine and approve the agreement and collect the $1500 they had offered to take for executing the instrument. The jury found in favor of plaintiffs' contention. The error assigned is that the court should not Lave disregarded the jury finding, supported as it was by the testimony of plaintiffs.\\nMuch is said in briefs of all parties pertaining to a proper grammatical construction of the language used. We do not think it necessary for us to make such an analysis of the language employed. As has been pointed out above, we must consider the testimony in its most favorable light to plaintiffs. This means that we must adopt plaintiffs' construction of the language used. Plaintiffs construe the drafts and endorsements thereon to mean James A. Allison, whom they knew to be defendants' general attorney, had drawn the drafts and attached the extension agreement, and that by this act the price of $1500 named by plaintiffs for the agreement, had been accepted. Under the undisputed testimony in this record, this construction and assumption by plaintiffs were from a misunderstanding of the true facts. Meredith, the special agent, had done the things that plaintiffs thought had been done by defendants. From plaintiffs' point of view their offer to accept $1500 for signing the agreement had been accepted by defendants. But not so; such acceptance as it was, was by Meredith. The undisputed evidence in the case shows that Meredith had no such authority to agree with plaintiffs on a price to be paid. There is nothing in the record to indicate that defendants accepted same or did any act to estop them from denying Meredith's authority to accept the offer. If we are correct in the conclusions expressed in the former part of this opinion, relating to Meredith's duty, power and authority as agent for defendants, then we think it becomes immaterial what kind of language was used by Meredith in his purported effort to accept plaintiffs' offer of sale and bind defendants. This he could not do under the facts of this case. The authorities above cited preclude the presumption, under the facts in this case, that Meredith had the apparent authority to fix the price or agree upon the price defendants would pay for the extension agreement. For the reasons stated, points seven and eight are overruled.\\nNinth point of error complains of the ruling of the court in excluding the testimony of plaintiffs as to the contents of a lost or destroyed letter, sent them by Rounsaville when he transmitted through plaintiffs' mother the extension agreement and two drafts sued on. In this we think there was no error. Rounsaville, the writer of the letter, was definitely shown by his own testimony not to be the agent of defendants in any respect, but that what he did was as a subagent or employee of Meredith. The bill of exception shows that by the terms of the lost letter, plaintiffs were apprised by Rounsaville that plaintiffs' offer to sign the renewal lease for $1500 had been accepted, and that'plaintiffs should execute the agreement and have their bank collect the money on the drafts. This would have meant that Rounsaville was purporting to act in lieu of defendants, in such acceptance. What we have already said relating to agency of defendants disposes of this question adversely to plaintiffs' contention.-\\nWe conclude that the judgment notwithstanding the jury verdict was proper and the judgment should be affirmed. It is so ordered that this be done.\"}"

tex/10218792.json

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+"{\"id\": \"10218792\", \"name\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\", \"name_abbreviation\": \"Clayton v. Chicago, R. I. & G. Ry. Co.\", \"decision_date\": \"1941-07-09\", \"docket_number\": \"No. 2364-7639\", \"first_page\": \"453\", \"last_page\": \"454\", \"citations\": \"154 S.W.2d 453\", \"volume\": \"154\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Commission of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:36:32.167249+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\", \"head_matter\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\\nNo. 2364-7639.\\nCommission of Appeals of Texas, Section A.\\nJuly 9, 1941.\\nL. D. Eakman, of Montague, and T. B. Coffield, of Bowie, for plaintiff in error.\\nBenson & Benson, of Bowie, and Jenkins Garrett, Walker, Smith & Shannon, and F. B. Walker, all of Fort Worth, for defendant in error.\", \"word_count\": \"1222\", \"char_count\": \"6329\", \"text\": \"GERMAN, Commissioner.\\nWhile Ocie Clayton was working as a sectionhand on a railroad, using a crowbar to pull spikes from the cross-ties, the bar, because of its defective condition, slipped and severely bruised the index finger on his left hand. He sued the railway company for damages. The trial court held that the plaintiff assumed the risk incident to his injury, and instructed a verdict for the defendant. The judgment was affirmed by the Court of Civil Appeals. 129 S.W.2d 693.\\nThe material facts are shown by plaintiff's own testimony, and are without any substantial dispute. The substance of his testimony, when reduced to a narrative form, is:\\n\\\"I am 20 years old. I was employed by the Chicago, Rock Island & Gulf Railway Company on October 23, 1938, as a laborer. I had been for several years prior to that time earning my living as a common laborer. I had never worked on a railroad before. When I went to work I was knocking rocks from under the rails with a foot adz. I had been working for the railroad company about ten days prior to that date. I had been working about two hours the day that I was injured. They were getting behind pulling spikes, and I was told by the straw boss to quit knocking rocks from under the rails and to begin pulling spikes. You pull spikes with a crowbar. A crowbar is about six feet long, one and one-half inches in diameter, and has a fork at the end like a claw hammer to set under the head of the spike when you pull spikes. I got a crowbar off the work car that had been placed there for the workmen. I didn't examine the crowbar when I picked it up. I was in a hurry. The boss was hurrying us. After they called me from knocking rocks from under the rails, I went to pull spikes, and I had pulled about a rail; about the length of a rail, and I came to a .spike that the bar wouldn't pull; I couldn't get it under it to hold and the straw boss drove the bar under the spike and we couldn't pull it and he told me to go on down the line, and I pulled the next two or three, and then I came to one and the bar slipped off and I mashed my finger. The assistant foreman tried to drive the bar under the head with a maul, but couldn't make it take hold and told me to go on and he would get another bar to pull that spike. I went on down the line pulling spikes. I had pulled two or three more when I got hurt. I was trying to pull another spike. The bar first caught on the spike where I got hurt. I was working with both hands. I am left-handed, and I throwed my weight on the bar and it slipped off and my weight went down and caught my hand between the bar and the tie-plate. The index finger on my left hand was injured. I had never used a crowbar to pull spikes before that morning. I was not given any instructions as to how to use it. The claws on the crowbar were worn smooth just like a worn-out hammer. It wouldn't hold the spike. The spike had to be up an inch or two before it would pull it. When I first put the bar under the spike it held, but when I put my weight on it, it fell. I had used the bar about twenty minutes before I was injured. I didn't examine the bar when I first got it, but noticed it wouldn't catch a spike head as it should, and on a spike it wouldn't pull. I did notice that it was worn and slick and wouldn't catch a spike like it ought to. Some of the spikes it would pull all right if the spikes were down like they should be it wouldn't pull them. I noticed it was in a worn, dilapidated condition at the time. I noticed that immediately. It worked pretty much on the same plan as a claw hammer, except the claw hammer isn't nearly so large. There is a heel immediately behind which forks and rests on the tie, and by putting weight on the upper end of the har the spikes are drawn from the tie. They didn't tell me how to pull spikes. Anyone would know how to pull them. I knew how to pull spikes. I didn't examine the crowbar closely when I first picked it up.\\\"\\nWe are of the opinion that the trial court and the Court of Civil Appeals correctly decided the case. It is conceded that the plaintiff at the time of his injury was engaged in interstate commerce, and that as a consequence the defense of assumed risk was available under Federal Employers' Liability Act. U.S.C.A., Title 45, sec. 54. From the evidence it is apparent that the crowbar was a rather simple tool, and that, while plaintiff had never used a crowbar before, yet, because of its simplicity, the method of using it to pull spikes was well known to plaintiff. It is also apparent that the defect in the tool was well known to the plaintiff. He may not have known that the tool was defective when he first picked it up, but he testified that he immediately discovered that it was worn smooth and, would not hold on a spike. He acquired all this information before he attempted to pull the spike where he was injured. While he did not anticipate that his finger would be mashed in the manner that it was by the bar slipping off the spike, he did know that the claws would slip off the spike if he placed his weight'on the other end of the bar. As a matter of common knowledge he must have known that if he put his weight on one end of the bar and the other end slipped off the spike, the bar would necessarily fall to the ground with great force, and that if his fingers were around the bar, they would be mashed. This was but a natural consequence that would necessarily result from facts well within his knowledge. Since he had full knowledge of the defect in the tool and of the danger incident to the use thereof, he must be held to have assumed the risk by continuing to use it. Galveston, H. & S. A. Ry. Co. v. Lempe, 59 Tex. 19; Texas & Pacific Ry. Co. v. French, 86 Tex. 96, 23 S.W. 642; Gulf, W. T. & P. R. Co. v. Smith, 37 Tex.Civ.App. 188, 83 S.W. 719, error refused; 39 C.J. 807, 810; 18 R.C.L. 683, 691.\\nThe judgment of the Court of Civil Appeals, which affirms the case, is affirmed.\\nOpinion adopted by the Supreme Court\"}"

tex/10221230.json

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+"{\"id\": \"10221230\", \"name\": \"STONE v. CITY OF DALLAS\", \"name_abbreviation\": \"Stone v. City of Dallas\", \"decision_date\": \"1951-12-13\", \"docket_number\": \"No. 2995\", \"first_page\": \"937\", \"last_page\": \"944\", \"citations\": \"244 S.W.2d 937\", \"volume\": \"244\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:08:08.395588+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STONE v. CITY OF DALLAS.\", \"head_matter\": \"STONE v. CITY OF DALLAS.\\nNo. 2995.\\nCourt of Civil Appeals of Texas. Waco.\\nDec. 13, 1951.\\nRehearing Denied Jan. 10, 1952.\\nFinklea & Finklea, Dallas, for appellant.\\nH. P. Kucera, City Atty., H. Louis Nichols, Asst. City Atty., John C. Ford, Asst. City Atty., Dallas, for appellee.\", \"word_count\": \"4193\", \"char_count\": \"24247\", \"text\": \"TIREY, Justice.\\nThe City of Dallas, a home rule city, brought this suit in the Justice Court against appellant for delinquent taxes, interest and penalties in the sum of $100.45, due on personal property consisting of automobiles owned by appellant for the years 1930 to 1945, inclusive, save and except the years 1934, 1935, 1937 and 1944, inclusive. The assessments were on un-rendered personal property.\\nThe defendant answered to the effect that he was not the owner of an automobile on the first of January of the years 1930, 1931, 1933, 1936 and 1938. He prevailed in the Justice Court and the City of Dallas appealed to the County Court at Law No. 1 of Dallas County. The court overruled both appellant's and appellee's motions for instructed verdict, and the jury in its verdict found substantially that defendant did not own an automobile on January 1, 1930, 1931, 1933, 1936 and 1938; that defendant was not the same L. C. Stone listed on the city tax rolls for the years 1930 and 1931 ; that defendant was the same L. C. Stone listed on the city tax rolls for the year 1938. Appellant filed motion for judgment, which was overruled. Appellee filed motion for judgment non obstante veredicto for the amount of $100.45, and in the alternative for $41.41. The court overruled plaintiff's motion for judgment non obstante vere-dicto/ but granted plaintiff's motion for judgment based \\\"on the jury verdict and undisputed evidence\\\" to cover taxes, penalties and interest for the years 1939, 1940,, 1941, 1942, 1943 and 1945, in the amount of $41.41, together with legal interest and costs of suit. Plaintiff and defendant excepted to the judgment entered and thereafter seasonably filed motions for new trial, which were overruled, to which both plaintiff and defendant excepted, and defendant perfected his appeal to.the Dallas Court of Civil Appeals and the cause was transferred to our court by order of the Supreme Court.\\nAppellant assails the judgment of the court on seven points. Points 1, 2, 3 and 4 in effect assail the plan of the City of Dallas for assessing and collecting personal property ad valorem taxes on unrendered automobiles whose owners are residents of the City of Dallas on the ground that such plan is unlawful, arbitrary, discriminatory and a violation of Article VIII, Sec. 1 of the Constitution of Texas, Vernon's Ann.St., and the 14th Amendment to the United States Constitution, and that such system is not equal and uniform. These contentions are without merit and are overruled. A statement is necessary.\\nA judgment of $41.41 was entered against appellant for taxes (and includes penalties and interest) accruing on his automobiles for the years 1939, 1940, 1941, 1942, 1943 and 1945. Appellee in its brief says: \\\"The evidence, insofar as these years are concerned, is undisputed. The appellant admitted residing in the City of Dallas during th\\u00e1t period of time, he admitted owning an automobile on January 1st for each of those years, he further admitted that he did not render the automobile for taxes, and that he had never paid any taxes on automobiles of the years in question. In addition, he admitted that he had never appeared before the Board of Equalization to question the tax assessment made by the Tax Assessor on his automobile. Since the automobiles had not been rendered for taxation by the appellant as is required by the charter of the City of Dallas, the Tax Assessor was required to render such property for taxation and place such valuation thereon as he may deem to be just. In rendering' these automobiles for taxes, the Tax Assessor adhered to the following procedure. Each year he obtained from the County Tax Collector a list of automobiles which had been registered and licensed in Dallas County, and from this list he prepared a list, of automobiles and the owners thereof residing within the City limits of Dallas, and from this list a tax assessment roll on automobiles was prepared. The Tax Assessor then placed a valuation on these automobiles in accordance with a uniform method applied to all automobil'es on the tax roll. In determining this value, the evidence showed that the Tax Assessor used as a preliminary guide a book known as \\\"The Official Used Car Dealers Guide\\\", which listed the market value of various automobiles according to make, year, and model. Using these values as a guide, the Tax, Assessor then placed a value on each automobile according to its make, year, and model, such value not being the same value listed in the used car dealers' guide. According to the undisputed evidence, the Tax Assessor did not use the figure in the used car dealers' guide as the value of the automobile. (here we insert the exact words of the Assessor: \\\"We use the value in that book as a basis to arrive at a value and he takes, perhaps, SO per cent of that book value for the gross value for the assessing purposes and, then, we reduce that to an. assessable \\u2014 what we call the assessment value \\u2014 maybe, using <55 per cent of that.\\\") This value adopted by the Tax Assessor as the value of these automobiles was, in the opinion of the Tax Assessor, the reasonable value of such automobiles. After the assessment roll had then been prepared by the Tax Assessor, it was submitted to the Board of Equalization for its review. The Board of Equalization then issued notices and .conducted public hearings, and after having equalized the taxes, for each year in question, submitted the tax roll, to the -City Council for its approval and for the assessment of taxes'for each of the years in \\u2022 question. After appellant's taxes became delinquent, they were placed on the delinquent tax roll which was prepared each year in' the manner provided for by the charter of the City of Dallas and the Statutes of the State of Texas. The appellee introduced in evidence a certified copy of the delinquent tax roll insofar as it applied' to, the appellant, and also introduced in evidence certified copies of the current tax roll for each of the years in question. No evidence was offered by the appellant to show that his automobiles had been valued differently from other similar automobiles located in the City of Dallas, nor wa.s any evidence offered to show that appellant's automobiles were valued at more than their true market value in money. There is no evidence in the record which would indicate that the method used by the City of Dallas in rendering for taxes the appellant's automobiles resulted in any injury to the appellant. Nor was there any evidence introduced which would have shown that the appellant would have paid less taxes if another method of rendition had ibeen adopted by the 'City. '\\nThe foregoing statement is not challenged by appellant in his brief and we believe it present's an accurate summary of the controlling facts in this case.\\nAppellant testified in part: \\\"Q. Have they assessed your car for more than it is worth? A. Chances are, they have. Q. For which years ? A. I don't recall which years.\\\"\\nThe City of Dallas has been a home rule city since 1907. Section 189 ,of the City Charter provides: \\\"All property, real and personal, shall be rendered for taxation by the owner thereof or his agent, as provided by the laws of the State for the rendition of property for assessment by the County, insofar as applicable; It shall be the duty of the Assessor and Collector to value each and every item of the property so rendered in accordance with the fair market price thereof upon a basis of valuation to be applied alike to all taxpayers,\\nSection 187 of said Charter provides : \\\"The Assessor and Collector of taxes shall assess all property which for any cause has not been rendered, placing such valuation' thereon as he may deem just. If the owners of such property are unknown, such assessment may be made in the- name 'unknown'.\\\"\\nThe foregoing provisions were construed in the case of the City of Dallas v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 1 S.W.2d 497. The court there held in effect that since the Railway Company did not render the property in question for taxation for any of the years in suit, the Assessor and Collector of such City had the power under the Charter provisions to render the same for taxes. This case was later reversed in Tex.Com.App., 16 S.W.2d 292 on a point not pertinent here.\\nSection 188 of the Charter provides: \\\"No irregularity in the time or manner of making or returning the City assessment rolls or the approval of such rolls shall invalidate any assessment.\\\"\\nSection 190 of the Charter provides: \\\"The said Board shall convene as near as practicable on the ISth day of June and continue its labors until its said work is complete, but not to continue longer than the 15th day of July following. It shall be the duty of the governing body, as soon as the assessment rolls are completed, to refer the same to the Board of Equalization, whose duty it shall ibe to equalize the taxes assessed on said rolls and to make all necessary correction and adjustment to that end;\\nSection 191 of the Charter provides in effect that any person aggrieved by any act of the Assessor and Collector of Taxes in making up the assessments or in the'valuation of property for taxing purposes shall have the privilege of making complaint to the Board of Equalization and to appeal to said Board for revision and correction of the matter upon which the complaint is based. In the case at bar appellant failed to perform any duty required of him by the City with reference to rendering- his automobile for taxes for the years in which he was adjudged to. have been in default.\\nSection 207 of the Charter provides, among other things, as follows: \\\" - and no irregularity in the manner of levying or assessing taxes shall invalidate the same unless it appears from, affirmative proof that such irregularity operated injuriously to the taxpayer attempting to avoid the payment of such tax.\\\"\\nWe think each of appellant's complaints have been answered adversely to him by the opinion in City of Longview v. Citizens National Bank, Tex.Civ.App., 294 S.W. 313, writ ref. on October 5, 1927, which makes this opinion of equal dignity with opinions of the Supreme Court \\u2014 See \\\"Notations on Applications for Writs of Error\\\" by Gordon Simpson, Texas, Bar Journal, December 1949. Needless to say that the charter provisions are controlling insofar as the Assessor and Collector of taxes by the City of Dallas is concerned, and since the charter of such city is an act of the legislature of the State of Texas, the appellant was charged with knowledge of the charter provisions and was bound to comply with the requirements of such charter provisions if he desired to contest the assessments made against him. Since the appellant was a resident of the City of Dallas and owned an automobile on January 1st. of the years that he was so taxed, as found by the judgment of the trial court, and since he wholly failed to comply with the provisions of the city charter of the City of Dallas, in that he failed to render his property for taxes as it was his duty to do, and thereafter failed to protest the assessments made against him, he is now precluded from so doing. The rule is that the decisions of taxing boards in the matter of valuations are quasi-judicial in their nature, and in the absence of fraud or other olbvious violations of the law, such decisions are not subject to collateral attack; nor will such valuations be set aside merely by the showing that same are in fact excessive. If a Board fairly and 'honestly endeavors to fix a just valuation for taxing purposes, a mistake on its part under such circumstances is not subject to review by the courts. See State v. Houser, 138 Tex. 28, 156 S.W.2d 968, points 3 and 6, at page-970 and cases there collated. See also opinion of this court in Tekell v. City of Cleburne, 176 S.W.2d 588. It is our view that appellant wholly failed to tender an issue to the effect that the taxing plan used by the City of Dallas in arriving at the value of defendant's automobile for the years for which judgment was rendered was arbitrary, discriminatory and not uniform, or that such plan violated any provision of our State or Federal Constitution, and wholly failed to show that the values placed thereon by the City were excessive, or that he had been injured by the plan used by the City of Dallas in assessing taxes. See Zachary v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417; Smith v. City of Austin, Tex.Civ.App., 212 S.W.2d 947; Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282. Since appellant failed to point out wherein he had suffered any injury by virtue of the taxing plan used by the City, he cannot litigate a mere theory. See Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776; Druesdow v. Baker, Tex.Com.App., 229 S.W. 493; Gonzales v. State, Tex.Civ.App., 81 S.W.2d 180; Zachary v. City of Uvalde supra; Victory v. State, 138 Tex. 285, 158 S.W.2d 760.\\nAppellant's fifth point says in effect that the property was not sufficiently listed on the City's delinquent tax roll. There is no merit in this contention. The records show that the delinquent tax roll of personal property has a code designation of the type of property covered iby such a tax roll. This code designation is A/A and A/S. A similar designation of the property is found on the certified copy of the tax roll for the years 1930 and for the years 1940, 1941, 1942, 1943 and 1945 the property is described as a Dodge automobile. A witness for the City testified that the code designation A/A means an automobile that is assessed by the assessor and the code designation A/S means an automobile on the supplemental tax roll. This witness testified to the effect that the delinquent tax rolls show that the taxes were assessed on automobiles owned by the appellant. Plaintiff in its petition alleged that property covered by the tax is described as being personal property consisting of automobiles.\\nSection 205 of the City Charter provides as follows: \\\"In any suit by the City of Dallas for the collection of any delinquent tax where it shall appear that the description of any property in the City assessment rolls shall be insufficient to identify such property; the City shall have the right to set up in its pleading a good description of the property intended to be assessed, and to prove the same, and to have its judgment foreclosing its tax lien upon the same, and personal judgment against the owner, for such taxes, the same as if the property were fully described upon the assessment rolls.\\\"\\nSection 2 of art. 7328.1, Vernon's Ann. Civ.Stats. provides in part: \\\"Such form of petition, insofar as applicable, may be used in suits for the collection of delinquent taxes on personal property, and in any such suit, it shall be sufficient to describe such personal property in such general terms as automobiles , and no other or more particular description or designation \\u00bfhall be required as a prerequisite to a suit to obtain a personal judgment for taxes due upon personal property so described.\\\"\\nWe think it is obvious that under the provisions of the Statute and Sec. 205 of the City Charter aforesaid that the description of the property contained in the tax rolls and in plaintiff's petition is sufficient to support judgment against appellant for the delinquent personal property taxes.\\nAppellant's point 6 does not present any error to the judgment entered in the trial court against him. First of all, such judgment was for the taxes accrued against him for the years 1939', 1940, 1941, 1942, 1943 and 1945, and the evidence was without dispute that appellant lived in the City during each of the foregoing years and that he owned an automobile on January 1st of each year and that he did not render the same for taxes. We have previously discussed appellant's failure to- do his duty in this behalf and point 6 is overruled.\\nPoint 7 is to the effect that the court erred in taking judicial notice of the charter provisions of the City of Dallas for the reason that said charter was not introduced in evidence, nor was any proof made of the charter being filed with the Secretary of State of the State of Texas. There is no merit in this contention. It is the duty of the court to take judicial notice of the provisions of the charters of home rule cities. See art. 1174, Vernon's Ann.Civ. Stats.; also City of Dallas v. Megginson, Tex.Civ.App., 222 S.W.2d 349 (writ ref. n.r.e.) and cases there collated; Ex parte Farnsworth, 61 Tex.Cr.R. 342, 135 S.W. 538; City of Dallas v. Springer, Tex.Civ.App., 8 S.W.2d 772; City of Sweetwater v. Foster, Tex.Civ.App., 37 S.W.2d 799; Fuller v. State, 116 Tex.Cr.R. 310, 32 S.W.2d 358.\\nAppellee excepted to the judgment entered by the trial court for not awarding it an additional amount of $40.76, representing taxes, penalties and interest for the years 1930, 1931, 1933 and 1936, and has cross assigned error to this effect. Appellee says that since appellant had registered his automobiles in his name with the State Highway Department for a license, his mere statement to the jury that he did not remember owning such automobiles during such years is not sufficient to overcome his act of registering these automobiles in his name for the particular years aforesaid, and since he did not testify that the State registration records were false, there is no support in the evidence to sustain the court's refusal to render judgment in favor of the City for the $40.76 taxes, penalties and interest for the years 1930, 1931, 1933 and 1936. We sustain this cross assignment.\\nThe City introduced in evidence copy of its delinquent tax roll of personal property which showed the name of L. C. Stone for 1930, 1931, 1933 and 1936. The amount of delinquent taxes, penalties and interest for this period was shown to be the sum of $40.76. Appellee also tendered in evidence certified copy of the current tax rolls for the years 1930, 1931, 1933 and 1936 for the defendant Stone and it is without dispute that these taxes were never paid. But appellant says in effect that there is no basis for judgment entered against him in any event for the reason that the property for which taxes were sought to be collected for the years 1930,. 1931, 1933, 1936, 1938 and 1939 were not described on said certificate. We have previously discussed this matter and have overruled his contention in this behalf; however, defendant says further that since the jury found that he was not the same L. C. Stone listed on the tax rolls for the years 1930 and 1931, that in no event can the City recover against him for the taxes accrued for the years 1930 and 1931. We think there is no merit in this contention for the reasons hereinafter briefly stated.\\nAppellant testified that he lived at 5302 Phillips Street, the street address shown on the delinquent tax rolls in 1933 and 1936, but he did not recall whether he lived there in 1933, but admitted he lived there in 1936; that he had been living in Dallas since approximately 1930 and had been driving his automobile before he moved to Dallas; that he had owned automobiles off and on for a number of years. He did not specifically deny owning an automobile during the years 1930, 1931, 1933 and 1936, or on January 1st of those years, but his testimony was merely to the effect that he did not remember owning a car at that time. Art. 7326, Vernon's Ann.Civ.Stats., provides in part: \\\"All delinquent tax records of said county in any county where such suit is brought shall be prima facie evidence of the true and correct amount- of the taxes and costs due by the defendant or defendants in such suit, and the same or certified copies thereof shall be admissible in the trial of such suit as the evidence thereof.\\\" This provision of the statute has been sustained by our courts. See Victory v. State, supra. Sec. 6 of art. 7328.1, Vernon's Ann.Stats, provides that \\\"All of the provisions of this Act simplifying the collection of delinquent State and County taxes, are hereby made available for,- and when invoked shall be applied to, the collection of delinquent taxes of all municipal corporations and political subdivisions of this State or any county thereof, authorized to levy and collect taxes.\\\" See Corbett v. State, Tex.Civ.App., 153 S.W.2d 664, writ ref. worn. Since the City introduced in evidence certified copies of its delinquent tax rolls as well as certified copies of the current tax rolls for each of the years in question showing that the taxes had been assessed -against L. C. Stone for those years, such testimony made a prima facie case under the above provisions of the statute and the authorities just cited. Our view is that because oif the record made and the provisions of the foregoing statutes and the authorities just cited, the answers of the jury to the effect that Stone did not own an automobile on January 1, 1930, 1931, 1933 and 1936, have no support in the evidence and for such reasons the trial court should have disregarded the jury's answers to Special Issues 1, 2,-3, 4, 5 and 6, and should have granted the City's motion for judgment non obstante veredicto for taxes accruing for the years just above named. In Corbett v. State, supra [153 S.W.2d 667], we find this statement: \\\" it has been held that the presumption of a valid levy and assessment of taxes arising from the introduction of the delinquent tax records and the delinquent tax lists, under the provisions of said Articles 7326 and 7336, presupposes that the capacity to levy and assess taxes has been acquired as a result of the necessary election, and that all steps essential to the validity of the levy had been taken.\\\" City Crocker v. Santo Consolidated Ind. School Dist., Tex.Civ.App., 116 S.W.2d 750, writ dis. Section 207 of the charter of the City of Dallas among other things provides: \\\" and the assessment rolls shall be prima facie evidence of the facts stated in the said rolls and that all taxes assessed on such rolls have been regularly levied and assessed in accordance with the provisions of this charter amendment and of the law; and no irregularity in the manner of levying or assessing taxes shall invalidate the same unless it appears from affirmative proof that such irregularity operated injuriously to the taxpayer attempting to avoid the payment of such tax.\\\" See also City of Raymondville v. Harding, Tex.Civ.App., 40 S.W.2d 888, affirmed Tex.Com.App., 58 S.W.2d 55; Texas Land & Cattle Co. v. City of Forth Worth, Tex.Civ.App., 73 S.W.2d 860, (writ ref.\\u2014See \\\"Notations on Applications for Writs of Error\\\" aforesaid) ; Dill v. City of Rising Star, Tex.Com.App., 269 S.W. 769, opinion adopted by Supreme Cour.t; Victory v. State, supra; Freeman v. State, 199 S.W.2d 301.\\nWe have carefully reviewed the testimony of appellant and we think it is to the effect only that he does not remember whether or not he owned an automobile during the period of 1930, 1931, 1933 and 1936, being the years on which the court refused to grant the city's judgment for delinquent taxes. It is our view that such testimony under the authorities cited is insufficient to overcome the prima facie case made in the City's behalf by introducing into evidence the delinquent tax rolls as herein outlined, and in the absence of affirmative proof by the defendant. The City was entitled to recover judgment for the full amount of taxes shown on the delinquent tax rolls tendered by the City. Such we believe to be the holding in Corbett v. State, supra, and this holding has not been set aside by our Supreme Court. It follows that we think the trial court erred in not permitting the City to recover the additional amount of $40.76 for the years 1930, 1931, 1933 and 1936, and the judgment of the trial court in this behalf is reversed and rendered. The judgment of the trial court in all other respects is affirmed.\\nReversed and rendered in part; affirmed in part.\"}"

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+"{\"id\": \"10241561\", \"name\": \"FELL v. BAKER\", \"name_abbreviation\": \"Fell v. Baker\", \"decision_date\": \"1938-12-16\", \"docket_number\": \"No. 13843\", \"first_page\": \"746\", \"last_page\": \"752\", \"citations\": \"123 S.W.2d 746\", \"volume\": \"123\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:05:26.995512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FELL v. BAKER.\", \"head_matter\": \"FELL v. BAKER.\\nNo. 13843.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nDec. 16, 1938.\\nRehearing Denied Jan. 20, 1939.\\nT. R. Boone and Kearby Peery, both of Wichita Falls, for plaintiff in error.\\nCarrigan, Hoffman & Carrigan and James E. Prothro, all of Wichita Falls, for defendant in error.\", \"word_count\": \"4884\", \"char_count\": \"27549\", \"text\": \"DUNKLIN, Chief Justice.\\nThis was a suit by Mrs. Stella Baker in the statutory form of trespass to try title, for two tracts of land, one for 257.7 acres, and the other for 68\\u00bd acres, both situated in Wichita County, against A. H. Fell, who answered by general demurrer and a plea of not guilty. Those were the only pleadings of the parties.\\nPlaintiff deraigned title under the will of her deceased husband, T. F. Baker, which was duly probated. Actual and continued possession of her husband of the property, through tenants, for a number of years prior to his death, was also relied on to show a prima facie evidence of her title.\\nShe claimed title adversely to the defendant upon his alleged failure to carry out and perform the obligations and conditions of the following instrument, which she introduced in evidence:\\n\\\"Wichita Falls, Texas\\n\\\"March 6, 1937\\n\\\"Mr. A. H. Fell, Wichita Falls, Texas\\n\\\"Dear Sir: For myself individually and as Executrix of the Estate of T. F. Baker, deceased, I agree to convey to you by general warranty deed, subject to the terms and conditions hereof and upon the consideration hereinafter stated, the land and premises described in Exhibit 'A', attached hereto and made a part hereof:\\n\\\"As a consideration for the foregoing, you are to pay me for 'said land the sum of $6,442.50, in the following manner:\\n\\\"(a) Cash, $4,831.88; said sum to be paid to me upon the final consummation of this deal, but within the time hereinafter stipulated.\\n\\\"(b) The further sum of $1,310.62, evidenced by your note of this date in the amount of said sum and secured by a deed of trust lien upon the land and premises described in Exhibits 'A' and 'B', which are attached hereto and made a part hereof, and which said note is payable in two installments, the first of which is in the sum of $310.62, which shall be due and payable December 1, 1937, and the second installment in the sum of $1,000 payable on or before December 1, 1938; said note bearing- interest from date until due at the rate of six per centum per annum, and after the due date thereof the same shall bear ten per centum per annum until paid and further providing that if the installs ment of date due December 1, 1937, is not paid when due, then the owner or holder of said note may declare the entire debt at once due and payable, and further providing for ten per cent additional on the principal and interest as attorney's fees, if the same shall be placed in the hands of an attorney for collection or if the same shall be collected through the probate or bankruptcy court, or by any character of judicial proceeding.\\n\\\"(c) The further sum of $300, evidenced by your note of this date and payable to Louis H. Gould on or before December 1, 1937, with interest from date until due at the rate of six per centum per annum and thereafter at the rate of ten per centum per annum. In this connection, it is understood and agreed that said $300 evidences the commission of Louis H. Gould in connection with the sale of the property and premises described in Exhibit 'A'; and in this connection, it is further understood that I do not assume any responsibility whatever for the payment of said commission or the payment of said note but that the said Louis H. Gould shall look alone to the said A. H. Fell for the payment of said commission or for the payment of said note evidencing the same; and in this connection, it is further understood that the said Louis H. Gould does not have or claim any lien upon the premises described in Exhibits 'A' and 'B', and if any such lien exists to secure the payment of said $300 note, then nevertheless, the same is expressly fully and finally released.\\n\\\"In connection with paragraph (a) above, it is understood that you are applying to some one or mo're of the Feder'al Lending Agencies for a loan of seventy-five per cent of the purchase price of the land described in Exhibit 'A'; if said Federal Lending Agencies shall not within fifteen days from this date approve your application for a loan of seventy-five per cent of the purchase price of said land and commit itself to the making of said loan, then this entire contract shall be null and void and be of no binding force or effect upon either party hereto.\\n\\\"I agree to furnish you an abstract'of title certified to this date by a competent and responsible abstractor, showing good and merchantable title in me to the land and premises described in Exhibit 'A'; you are to have five days from and after the date of receipt of such abstract of title, within which to have the same examined by your attorney; if valid objections shall be \\u2022 raised thereto, a true, copy thereof shall be furnished me at Wichita Falls within said five day period and I shall have ten days within which to effect a cure thereof.\\n\\\"It is understood and agreed that title shall be accepted by you and this trade fully and finally consummated and the consideration aforesaid fully paid within sixty days from this date; and if said title shall not be accepted by you and the entire consideration as herein defined shall not be paid by you as hereinbefore provided within said sixty days, then this contract shall be null and void and neither party bound thereby.\\n\\\"It is further understood and agreed that you accept said premises subject to any and all rental contracts, verbal or otherwise, which may be outstanding.and that as to' the proceeds of any and all crops raised upon said land for the year 1937, the same shall belong to you. '\\n\\\"It is further understood 'and agreed that you are to assume and pay off as 'and when due, any and all taxes levied and;-assessed against said land described in-Exhibit 'A' for the year 1937. .\\u2022\\n\\\"It is further understood , and agreed that the performance of. all-of the obliga tions evidenced hereby shall be at Wichita Falls and Wichita County, Texas.\\n\\\"It is finally understood and agreed that in the deed mentioned herein, the vendor's lien and deed of trust lien shall be reserved, executed and delivered upon the land and premises described in Exhibit 'A' to secure the payment of any and all of the purchase price and by the acceptance of this contract, you agree to give me a chattel mortgage lien upon all of' your part of all grain and other crops grown on the land described in Exhibit 'A' as additional security for the indebtedness aforesaid, provided, however, that as to the grain you may reserve a sufficient amount to seed said premises for the crop year 1938.\\n\\\"Very truly yours,\\n\\\"(Signed) Mrs. Stella G. Baker\\n\\\"Accepted:\\n\\\"(Signed) A. H. Fell\\n\\\"(Signed) Louis H. Gould.\\\"\\nThe two tracts sued for are described in those Exhibits \\\"A\\\" and \\\"B\\\".\\nThe record indicates that Mr. Gould acted as broker in the negotiations leading up to the execution of the contract.\\nJ. M. Hendrick, who resides in Wichita Falls, was employed by the Security Association of Wichita Falls, who took applications for and negotiated loans for the Federal Land Bank at Houston. He testified that' the defendant filed with him an application for a loan by the Federal Land Bank at Houston, together, with an abstract of title to the property. He mailed the application to the land bank at Houston, but did not enclose the abstract of title, since it was the custom never to send them the abstract until the Federal Land Bank accepted the application for the loan. The Federal Land Bank at Houston first passes on the application for a loan to determine whether the security offered is satisfactory, because it is not willing to examine the title until it knows the loan can be closed. The defendant stated to him that he was to pay $6,442.50 for the property, and applied for a loan of $5,100. The Federal Land Bank approved the loan for $4,200, but it was never closed. Of the $4,200 for which the loan was approved, the Federal Land Bank was to put up $2,500, and an agency, which was called a Commissioner, was to put up the balance of $1,700. The Federal Land Bank can only lend 45% of' what the property is worth, and the emergency money is used in increasing that amount 25%, and the Bank never makes a loan where there is an outstanding second lien on the property in favor of some other person.\\nAfter receiving that information from the Federal Land Bank, Hendrick dropped the matter and did not send in the abstract of title.\\nPlaintiff, Mrs. Stella G. Baker, testified in the case, and admitted receiving the following. letter, addressed to her by Mr. T. R. Boone, attorney for the defendant, of date May 3, 1937, which the defendant introduced in evidence:\\n\\\"May 3, 1937\\n\\\"Mrs. Stella G. Baker, 2011 Victory Street, Wichita Falls, Texas |\\n\\\"Dear Mrs. Baker:- On March 6, 1937, you made a contract with A. H. Fell, to sell .to him a certain tract of land out here northwest of town, being 257.7 acres, and the contract provides that the title shall be accepted by Mr. Fell and the trade fully and finally consummated and consideration paid within sixty (60) days from date.\\n\\\"Mr. Fell is now ready to fully consummate this deal, has accepted title and now demands a conveyance as provided in this instrument, and to go through with the deal. He did on the 28th of April, 1937, accept title and demanded conveyance thereof and was informed by Mr. Hoffman that he did not believe that you intended to go through with the deal, so he filed the contract of record on April 28, 1937, which is now recorded in Volume 345, page 187, of the Deed Records of Wichita County, Texas, and he here and now accepts the title, here and now offers the consideration as provided therein and to fully and completely perform and demands performance of you.\\n\\\"This letter is written at the request of Mr. A. LI. Fell, and the writer is having Mr. Fell to sign this .letter, giving a copy thereof to Mr. Hoffman.\\n\\\"Yours truly,\\n\\\"TRB :S (Signed) T. R. Boone\\n\\\"cc Messrs. Carrigan, Hoffman & Carri-gan,\\n\\\"Attorneys at Law,\\n\\\"Hamilton Building,\\n\\\"Wichita Falls, Texas.\\\"\\nPlaintiff, Mrs. Baker, testified in part as follows:\\n\\\"Q. (By Mr. Hoffman, her counsel) Now, Mrs. Baker, under the terms of the contract that you had with Mr. Fell, and which are described in Exhibits 9 and 10, Mr. Fell agreed to pay you for the land de scribed in this contract an amount of money equaling $6,442.50, is that correct? According to your record? A. Yes, sir.\\n\\\"Q. Do you remember how much cash was to be paid? A. $4,800.00.\\n\\\"Q. $4,831.88? A. Yes, sir. '\\n\\\"Q. Now, do you remember in the negotiations that you had with Mr. Fell over there in my office and with Mr. Gould how that money was to be obtained? How the cash was to be obtained? A. He was to. borrow money from the government on the land.\\n\\\"Q. Well, now have you ever received any money at all under this contract for the land? A. No, sir, I have not.\\\"\\nAccording to her further testimony, the defendant and Mr. Gould came to her and told her that the Federal Government would approve a loan on the property for $4,200, but not for $4,800, which was seventy-fiv\\u00e9 per cent of the value of the property, but offered to give liens on diamonds and cattle as security for the excess of the loan over and above the amount which the Government would lend, and thus leave the Federal Land Bank with' a first and only lien on the property, as the Government would not make a loan with an outstanding, second lien in favor of a third person.\\nPlaintiff further testified as follows:\\n\\\"Q. (By Mr. Hoffman) All right, did Mr. Gould, in the presence of Mr. Fell, say anything to you about whether the Federal Land Bank had notified them that they wouldn't make the loan if there was going to be a second lien outstanding? A. Repeat that again, please.\\n\\\"Q. Did Mr. Gould tell you, on the occasion of his and Mr. Fell's visit to your home, and, in the presence of Mr. Fell, did he tell you that he had been informed by the Federal Land Bank's agent that the Federal Land Bank would (not) make, this loan if there was going to be a second lien against the land? A. As well as I remember, Mr. Gould said something of it but I wouldn't say positive about that, but as well as I remember.\\\"\\nOn Recross Examination, she testified as follows:\\n\\\"Q. (By Mr. Boone) Mrs. Baker, this conversation that you had with Mr. Gould, how long was that after you made the con- ' tract here dated March 6, '37 ? A: I can't tell you exactly. I would say a month.\\n\\\"Q. Was it before you got this, letter from me, or Mr. Fell, on the 3rd day of May, 1937? A. The 3rd day of May?\\n\\\"Q. The contract was made March 6 A. Well, I would think it was after.\\n\\\"Q. After what? A. After this letter.\\n\\\"Q. After this letter? Aren't you mistaken? Wasn't it before this letter? A. Well, I am not positive about the date. I didn't put the dates down. I didn't put the dates down because Mr. Fell told me if he couldn't get the money he would not cause me any trouble.\\n\\\"Q. Well, then, you got this letter stating he was ready to go forward with it, didn't you? A. I got a-letter from you, yes, sir.\\n\\\"Q. And stating that he was ready to. go forward with the deal. A. And I was ready' and I called him up \\u2014 I didn't know anything about the diamond ring business and I. called him up and he said he couldn't get the deal through like I wanted and it looked like we would have to cancel the contract, and that He wouldn't cause ' me any trouble. I called him at his home. '\\n\\\"Q. When did the diamond deal come up.' When was that? Was that not after they got this loan? Was that before you got' this letter here, or after you got this letter dated May 3rd? A. I can't say positively.\\\"\\nAt the conclusion of the evidence, the court instructed a verdict in favor of the plaintiff, and the defendant has prosecuted this writ of error, from judgment rendered' in accordance with that instruction.\\nAs noted, there were two provisions for the termination of the contract of sale, and the forfeiture of' any rights either party may have as against the other thereunder.' The first reads: \\\"In connection with paragraph (a) above, it is understood' that you are applying to some one or more of the' Federal Lending Agencies for a loan of seventy-five per cent of the purchase price of the land described in Exhibit 'A'; if said Federal Lending Agencies shall not within fifteen days from this date approve your application for a loan of seventy-five per cent of the purchase price of said land and commit itself to the making of said loan, then this entire contract shall be null and void and be of no binding force or. effect upon either party hereto.\\\"\\nAnd the second reads: \\\"It is understood and agreed that title' shall be accepted by-you and this trade fully and finally con-' summated and the consideration aforesaid fully paid within sixty days from this date; and if said title shall not be accepted by you and the entire consideration as herein defined shall not be paid by you as herein-before provided within said sixty days, then this contract shall be null and void and neither party bound hereby.\\\"\\nThere is no finding in the record of the grounds upon which the court instructed the verdict in favor of the plaintiff. Evidently it was upon'one or the other of those two stipulations for a termination of the contract.\\nBut in defendant in error's brief, in reply to the argument advanced in brief of plaintiff in error, that the letter written by Mr. Boone to the plaintiff, of date May 3, 1937, constituted a compliance on his part with the second contractual provision quoted in the brief, this is said:\\n\\\"As shown previously in this Brief, the contract in question failed on a material condition precedent expressed therein and such failure brought about an immediate termination of same, so that it is unnecessary to go into the question of whether or not there was compliance by defendant with the particular contract provision quoted above. Plaintiff in error in his brief conspicuously neglected to quote or mention that particular provision of the contract which immediately precedes the provision quoted above and _ which is quoted verbatim in this Brief on pages 2 and 3, and in the statement of facts, page 41, paragraph 2. It is on that provision that plaintiff (defendant in error) places her right to rescission in this case.\\\"\\nIt may, therefore, be assumed that the action of the trial court in instructing the verdict for the plaintiff was based solely upon the conclusion reached, as a matter of law, that the contract became null and void and of no binding force or effect upon either party by reason of the fact that the Federal Land Bank did not within fifteen days from the date of the contract approve the defendant's application for a loan of seventy-five per cent of the purchase price on the land, and commit itself to the making of said loan.\\nIn other words, that provision of the contract was given controlling effect to the exclusion of other provisions in the contract giving the defendant the right to title to the property by paying the consideration expressed in the contract within sixty days from its date, and with a further provision that the contract would be terminated for failure to pay for the same in that length of time, as shown in the second provision quoted.\\nThose two provisions were for the forfeiture of any of the defendant's rights to purchase and pay for the land; and that they render the contract on that particular point ambiguous is self-evident.\\nIn 43 Tex.Jur., par. 217, p. 385, this is said:\\n\\\"The right of the vendor to recover the property by an action in trespass to try title, for default by the purchaser, is, it seems, substantially the same as his right to rescind on that ground. The general rule, in the case of an executory sale, is that the vendor or his successor may sue for the recovery of the property when the purchaser has defaulted in making payment. But the vendor cannot recover so long as the purchaser is not in default; accordingly he cannot maintain an action to recover the property where the purchaser has made no default.\\n\\\"The contract may, of course, stipulate that a default of the purchaser shall ipso facto terminate the contract and forfeit his rights thereunder. But, as we have seen, a forfeiture provision is for the benefit of the vendor. Although the vendor may elect to declare a forfeiture, the language of the contract must be impelling to require him to accept one against his will. So, as a rule, a forfeiture does not take place automatically; the vendor or his successor must 'declare' it or in some appropriate manner exercise the right to forfeit. When the contract prescribes the manner of exercising the right of forfeiture, its provisions must be scrupulously observed.\\\" 43 Tex.Jur., par. 202, p. 352.\\n\\\"In order that a party ma.y rescind a contract of sale, he must, doubtless, have the 'right' to do so. As a general rule, the vendor or his successor has a legal or equitable right, at his election, to rescind an execu-tory contract on certain recognized grounds, until the purchase money debt is paid or the right is barred by the statute of limitation. But the right to rescind is not an absolute one, enforceable in all cases. On the contrary it may be lost or waived and it may not be exercised when, under the circumstances, rescission would be inequitable. \\\" 43 Tex.Jur., par. 206, p. 358.\\n\\\"The cardinal rule in construing a contract is to ascertain and give effect to the intention of the parties, as expressed .in the language which they have used, provided that such intention is not in conflict with the rules of law; and this is the general purpose of all rules for the construction of contracts.\\n\\\"The general intent and leading purpose should control minor inharmonious provisions. If two purposes or intents may be inferred from the language used and the main purpose clearly appears, such main purpose will control. This rule means that where language is used which is susceptible of two meanings, that meaning will be adopted which does not contradict the main purpose of the instrument, as evident on its face.\\\" Tex.Jur., vol. 10, par. 159, p. 272.\\n\\\"Where a contract is ambiguous or its meaning is doubtful, it will be construed most strongly against the party who drew or wrote it, and was responsible for the language used \\u2014 especially where it provides for exemptions from liability in his favor. This rule does not require that a strained construction should be put upon a contract in order to favor the party who did not draw it, but rather that, in case of a reasonable doubt as to which of two constructions best accords with the intent of the parties, that should prevail which is least favorable to the party whose language it is.\\\" 10 Tex.Jur., par. 162, p. 277.\\n\\\"The intention of the parties to a contract is to be gathered from a consideration of the entire instrument, taken by its four corners. In other words, the contract must be read, considered and construed as a whole, and all of its provisions must be taken into consideration and construed together in order to ascertain its meaning and effect.\\n\\\"Ordinarily it is not proper to consider a single paragraph or clause by itself in order to ascertain its meaning. Each clause or paragraph must be construed with reference to every other paragraph and the effect of one paragraph upon the other determined. A presumption at variance' with' the effect of the other provisions of a contract will not be raised upon a single one of its provisions; and a purpose which is necessarily inferred from the language of a particular clause, when considered alone, is not controlling where it is expressly negatived by a subsequent clause. But the intent of the parties with respect ,to a particular matter is to be gathered wholly from a particular paragraph where it alone refers to the matter and the other provisions refer wholly to different matters.\\n\\\"It is to be presumed that every provision of a contract was incorporated for a purpose. The court has no right to nullify any of .its terms, and, if possible, a construction will be adopted which gives effect to each and every part of the instrument, in preference to one which would render any of the provisions therein meaningless.\\\" 10 Tex. Jur., par. 164, p. 282. See, also, 43 Tex. Jur., pars. 59 and 60, pp,. 97 and 98; pars. 66 and 67, pp. 104 to-107.\\nForfeiture, as applied to this case, means forfeiture of the right of defendant to purchase, given by the contract.\\nAnd the following announcement by the Supreme Court, in Decker v. Kirlicks et al., 110 Tex, 90, 216 S.W. 385, is applicable here [page 386]: \\\"If the provision is ambiguous, that alone condemns it as a forfeiture provision. A forfeiture should rest upon surer ground. -Where a contract is so vague in its terms that a court cannot determine its meaning, it would be unjust to enforce a forfeiture under it against one whose only fault has been to possibly mistake its meaning. Forfeitures are harsh and punitive in their operation. They are not favored by the law, and ought not to be. The authority to' forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is plain and clear, whose unequivocal character may render its exercise fair and rightful.\\\"\\nAs shown, the first provision for forfeiture is followed by an agreement of the seller to furnish .an abstract of title showing good and merchant\\u00e1ble title in the land \\u2014 but with no stipulation as to when the same would be furnished \\u2014 with the right of the defendant to have five days after its receipt within which to have the same examined by his attorneys; and if valid objections should be raised thereto, a true copy thereof should be furnished to plaintiff within that five day period, and the plaintiff should then have ten days within .which to cure the defects. Under that paragraph of the contract, plaintiff would have been entitled to a reasonable time within which to furnish to defendant an abstract of title. The record does not show the date it was furnished, but even if it was furnished immediately after the con tract became effective, those two periods, five and ten days, would aggregate fifteen days, and if that period of time was thus consumed, it would have been impossible for the Land Bank at Houston to pass on the title and commit. itself to the making of the loan within that period, even though on the last day thereof plaintiff had been able to furnish an abstract showing good title to the land, and even though defendant's application,for a loan of the desired amount had been theretofore approved. It thus appears that the first provision for forfeiture, when read in connection with the paragraph just referred to, was itself ambiguous.\\nAs shown in the first paragraph of the contract of sale, plaintiff bound herself to convey the property by general warranty to the defendant, for the consideration therein stated, and the second provision quoted above, requiring the defendant to accept title and pay the full consideration therefor within sixty days from the date of the contract, shows clearly that the main purpose of the contract was one of sale and purchase to be consummated within that period of time, and that the requirement for securing a loan from the Federal Land Bank was merely to insure the .raising of the purchase money within the sixty day period stated for closing the transaction.\\nHence, the holding made by the trial court that the contract showed on its face that the defendant's right of purchase was terminated by his failure to get from the Federal Land Bank an approval of his application for a loan of seventy-five per cent of the purchase price, and that it would commit itself to the making of said loan all within fifteen days of the date of the contract, was erroneous. Especially so, in view of the plaintiff's testimony noted above, tending to show that after the expiration of said fifteen day period, she was willing to go on with the trade and close the transaction, upon payment of the consideration stated within the sixty day period from the date of the contract, thus evidencing an election not to claim the forfeiture under the fifteen day period.\\nIf the surrounding facts and circumstances could be looked to to determine the intention of the parties as to which of those ambiguous and conflicting stipulations in the contract should be given effect, then that would be a question for the determination of the jury, and the court could not withdraw the same from the jury, under the testimony of the plaintiff herself.\\nAnd in view of the quoted statement from the brief of the defendant in error, to the effect that the plaintiff relied solely upon the first provision for forfeiture, it becomes unnecessary to determine the sufficiency of the defendant's tender of performance of the contract, which was made within the sixty day period fixed for the payment of- the consideration mentioned. ,\\nIn this connection, we quote the following from 10 Tex.Jur., par. 229, p. 402:\\n\\\"A tender and offer to perform a condition precedent and a refusal by the party entitled to the benefit of it, is equivalent to performance, to the extent of authorizing a suit on the contract for nonperformance.\\\"\\nFor the reasons stated, the judgment of the trial court is reversed and the cause is remanded.\"}"

tex/10241879.json

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+"{\"id\": \"10241879\", \"name\": \"ALLSMAN v. YOUNG\", \"name_abbreviation\": \"Allsman v. Young\", \"decision_date\": \"1939-02-22\", \"docket_number\": \"No. 3388\", \"first_page\": \"627\", \"last_page\": \"628\", \"citations\": \"125 S.W.2d 627\", \"volume\": \"125\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:46:53.220905+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALLSMAN v. YOUNG.\", \"head_matter\": \"ALLSMAN v. YOUNG.\\nNo. 3388.\\nCourt of Civil Appeals of Texas. Beaumont.\\nFeb. 22, 1939.\\nRehearing Denied March 8, 1939.\\nBattaile, Burr & Holliday, of Houston, for appellant.\\nElton Cruse, of Beaumont, for appellee.\", \"word_count\": \"673\", \"char_count\": \"3995\", \"text\": \"WALKER, Chief Justice.\\nThis was an action filed by appellee, Miss Elma Young, against appellant, Harry Allsman, in the district court of Jefferson County for damages for personal injuries suffered by her in an automobile collision in the State of Louisiana. Appellant answered by plea of privilege, duly controverted by appellee, to be sued in Smith County. On hearing, the plea of privilege was overruled, and appellant has-duly prosecuted his appeal to this court. In support of the judgment the following conclusions of fact and law were filed:\\n\\\"1. I find that at the time this suit was filed and at the time this Plea of Privilege was filed that the defendant, Harry Allsman, his wife and family lived in Tyler, Smith County.\\n\\\"2. I find that the defendant, Harry Allsman, on September 15, 1937, by pleadings in a companion case through duly authorized representatives, represented under oath that the said Harry Allsman was a resident of and domiciled in Houston, Harris County, Texas.\\n\\\"3. I find that the defendant, Harry Allsman, authorized listings in the Houston Telephone Directory* showing the listing of a residence telephone under his name.\\n\\\"4. I further find that no change has occurred as to the domicile of the said defendant, Harry Allsman, since September 15, 1937.\\\"\\n\\\"1. I conclude that said defendant's conduct and representations as above set forth were a waiver of his rights, if any, to be sued in Smith County, Texas.\\n\\\"2. I conclude that the acts and representations of the defendants as above set forth estopped the defendant to assert his privilege, if any, to be sued in Smith County, Texas.\\\"\\nThe facts found by the court do not support the judgment. Subject to the exceptions enumerated, Art. 1995, R.S.1925, provides : \\\"No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except .\\\"\\nThe first fact conclusion brings this case within the quoted provisions of Art. 1995; the other fact conclusions do not invoke any of the exceptions enumerated in this article. Agey v. Red Star Supply Co., Tex.Civ.App., 113 S.W.2d 212; Caprito et al. v. Weaver et al., Tex.Civ. App., 63 S.W.2d 1043; Joy v. Marshall Field Co., Tex.Civ.App., 51 S.W.2d 731. Nor do the facts found by the court support the legal conclusions of \\\"waiver\\\" and \\\"estoppel.\\\" Appellant did nothing \\u2014 is not charged with doing anything \\u2014 constituting either a waiver or an estoppel. The facts relied upon to establish these issues grew out of a companion case, filed and prosecuted in the State of Louisiana. It is not charged that appellant, personally, made any representations in that case, or knew the nature of the representations made by his representative. Certainly it cannot be said that the facts found by the court constitute \\\"waiver\\\" as thus defined in Missouri, K. & T. Railway Co. v. Hendricks, 49 Tex.Civ.App. 314, 108 S.W. 745, 749: \\\"A waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. A waiver, so called, is the result of an intentional relinquishment of a known right. 29 Am. & Eng.Enc.Law (2d Ed.) p. 1091. It has been held that a waiver never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it.\\\" Nor do the facts found by the court constitute estop-pel. Sovereign Camp, W. O. W. v. Bailey, Tex.Civ.App., 277 S.W. 782; Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 471, 268 S.W. 438.\\nIt is insisted that appellant did not except to the conclusions of fact. Exceptions were not necessary. The facts found do not support the judgment; the error is fundamental.\\nThe judgment of. the lower court is reversed and the cause remanded with .instructions to transfer this case to Smith County.\"}"

tex/10243454.json

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+"{\"id\": \"10243454\", \"name\": \"WHITE v. STATE\", \"name_abbreviation\": \"White v. State\", \"decision_date\": \"1935-04-17\", \"docket_number\": \"No. 16963\", \"first_page\": \"465\", \"last_page\": \"476\", \"citations\": \"84 S.W.2d 465\", \"volume\": \"84\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:41:06.969224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHITE v. STATE.\", \"head_matter\": \"WHITE v. STATE.\\nNo. 16963.\\nCourt of Criminal Appeals of Texas.\\nApril 17, 1935.\\nRehearing Denied June 19, 1935.\\nTom F. Reese, of Comanche, and Arthur R. Eidson, of Hamilton, for appellant.\\nLloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"8486\", \"char_count\": \"46621\", \"text\": \"LATTIMORE, Judge.\\nConviction for murder; \\u2022 punishment, thirty years in the penitentiary.\\nWe find in the record twenty-eight bills of exception, each of which has been carefully considered. Bill of exceptions No. 1 complains of the admission in evidence of a conversation between one Lennie Cropper and Tipton on the night of the alleged murder. It is evident that if there was a conspiracy to kill and rob deceased, to which appellant and Tipton were parties, its object was to get the money of deceased Milton for the joint use of appellant and Tipton. Manifestly, appellant had gotten no part of the proceeds of the robbery at the.time of said conversation, and the conspiracy had not yet achieved its object, and what was said by one party thereto in furtherance of the object of such conspiracy, if any, would be evidence admissible against the other. See Sapp v. State, 87 Tex. Cr. R. 606, 614, 223 S. W. 459. We see no error in bills of exception 2, 3, 4, and 5 which bring forward objections to the court's charge on principals, which objections are unsound for the reason above referred to. If there was a conspiracy, clearly appellant was a principal offender, and if there was such conspiracy, its obj ect had not yet been attained, and the conspiracy would not be ended until such was the fact.\\nBill of exceptions 6 complains of the refusal of a special charge, in effect, that Monte Sims was an accomplice and could not corroborate herself, and that one accomplice could not corroborate another, etc. There was but one accomplice witness in this case, and the special charge was manifestly erroneous. We see no substantial difference between the correct parts of this special charge and the charge given on the same subj ect by the court in his main charge.\\nWe think the testimony of Monte Sims that Tipton left money with Shorty Cropper on the night of the killing to be carried and delivered to appellant the next day was also admissible upon the theory that there was a conspiracy between appellant and Tipton which was not yet consummated. See Sapp v. State, supra.\\nWe see no error in bill of exceptions 8. The transcript upon change of venue from Comanche county to Coryell county showed a proper order by the court directing said change of venue, upon agreement of both parties, on December 12, 1933; also that when the papers reached the office of the clerk of the district court of Coryell county the transcript was marked filed as of the date received, but such file mark was not put upon the indictment or other original papers when so received. The bill of exceptions reflects the fact that when attention was called the trial 'court ordered the file mark put on said papers as of the date they were received by the clerk of the court of Coryell county, which was prior to the convening of the trial term of the court below.\\nBills of exception 9 and 10 seem not to call for any discussion. Bill of exceptions 11 complains of the testimony of the sheriff as to the caliber of the weapon used in shooting deceased. We fail to perceive any injury possible, and are of opinion the sheriff was qualified to give the answer shown.\\nBill of exceptions 12 complains of the fact that the sheriff was permitted to testify that discs of powder penetrated the face, hands, and skin of deceased, and that a man so shot would not fall in the position in which he found the body of deceased when he reached the place of the homicide. We see no material error in this, if any. Appellant testified in his own behalf, and swore that when deceased was shot the man who shot him went right down on top of him. Appellant also testified that before the sheriff got there he had raised the head of deceased and rubbed his face, and put his hat under his head. In other words, it is quite evident that there was abundant opportunity for the position of the body of deceased to have been moved subsequent to being shot. Bill of exceptions 13 fails to show what the witness would have testified had he been permitted. Bills 14 and 15 seem to call for no discussion on our part. We perceive no error in the complaint in bill of exceptions 16. The witness was permitted to say that he took appellant to the office of Mr. Eidson in Hamilton, and that appellant told him when he returned he did not get to see Mr. Eidson. The proposed statement, viz., that the reason he did not get to' see Mr. Eidson was because the latter was out of town, would appear to be but hearsay. Bills of exception 17, 19, and 20 complain of the admission of testimony which was offered by the state upon the theory that there was a conspiracy, to which appellant and Tipton were parties, and that the conspiracy was not yet fully consummated, hence the testimony was admissible. We cannot agree with appellant's contention that any of said bills reflect error.\\nBill of exceptions 18 presents objection to the testimony of Monte Sims upon the ground that she had been convicted of a felony and was confined in jail and not pardoned. The Legislature seems to have conferred the right of testifying upon parties who have been convicted of felonies and are confined in the penitentiary, or in jails. See Acts 39th Leg., 1926, First Called Sess., p. 20, c. 13, \\u00a7 1 (Vernon's Ann. C. C. P. art. 708); Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978.\\nBills of exception 21, 22, 23, 24, 25, and 26 have been considered, but are not deemed of sufficient importance to call for discussion. .>\\nAppellant's bill of exceptions 27 is copied literally as follows:\\n. \\\"Be it remembered that on the trial of the above styled and numbered cause and while the witness John Reese, a witness for the State, was testifying on direct examination, at the instance of the State and over the objection of the defendant, the district attorney propounded to said witness, thp following question.\\n\\\"Q. 'Are you acquainted with the general reputation of the defendant A. M. White in the community and town of Comanche as \\u2022one of a bootlegger?'\\n\\\"To which the defendant then and there objected and the court sustained the defendant's objection, and 'the district attorney, over the obj ections of the defendant, stated that 'We feel that your question as presented awhile ago is a material question, and one that would tend to shed light and assist the jury in determining the facts, that if this witness were permitted to answer\\u2014 he has said he is familiar with his reputation as a bootlegger, because to show the theory of the State through this case that the defendant has two motives, or more in the highjacking and killing of the deceased P. H. Milton, for the reason that he knew the deceased carried money on his person, and desired to obtain a portion of that money by having him hi-jacked by Tipton and he further desired to have him killed, knew he would not hist and desired to have him killed; that he was a competitor in business, that of bootlegging, and that this witness would answer that his reputation is that of a bootlegger.'\\n\\\"And the court sustained the objections to the question asked and stated at said time that it was not the proper question because the defendant's reputation was not in issue, and thereupon the defendant took his exception to the attempt on the part of the State to inject into the record a matter for the direct purpose and with a view to creating in the minds of the jury, prejudice against the defendant, and stated to the court at th'at time that the defendant wanted all of said matters to be shown and set forth in a bill of exceptions preserved at said time, all of which was allowed by the court.\\\"\\nIn' his brief appellant says that it was error for the court below to allow the 'state's attorney to make the statement above set out, in the presence of the jury, after the court had sustained appellant's objection to the question propounded to witness Reese. In passing on this or any other complaint appearing in any bill of exceptions, this court must as nearly as it can, as ascertained from the recitals of the bill, put itself in what appears to have been the situation of the trial court in making the ruling complained of. In other words, does bill 27 show that the complaint intended was of the statement made by the state's attorney, and, if so, is it in such condition as to make the complaint one of merit, and one which should be regarded by us as calling for re-vers\\u00e1l of this case? Does said bill show that said statement was made in the presence of the jury? For many reasons, we are impelled to answer in the negative. If the members of this court find themselves in serious doubt as to whether the proof shows such statement to have been made in the presence of the jury, it would not appear to be difficult to conclude that the trial court may have concluded that it was not. We further observe that nothing in the bill appears to indicate that the court below felt himself called on to rule upon any objection made to any statement, save that involved in the question asked to which the objection was sustained. We do not know from any recital in the bill whether the attorney approached the court and made his statement referred to, or whether it was made in the hearing of the jury. There is no affirmative statement either way, and we are left to conclude that the trial court knew that it was not in the presence' of the jury. Apparently after the statement referred to was made, the court below \\\"sustained the objection to the question,\\\" and appellant then \\\"took his exception to the attempt oh the part of the state to inj ect into the record a matter for the direct purpose of creating in the minds of the jury prejudice against the defendant.\\\" What does this mean? An argument to the court is in no sense injected into the record.. This is all, and the only exception taken by appellant to the matter under discussion. ' The court was not asked to rule upon any objection to argument, nor was he asked to instruct the jury not to consider any argument. If we try to arrive at the court's understanding of the matter, as evidenced by his ruling, and what he said in that connection, it would appear that he understood appellant's objection and exception to be directed at something which the state was trying to inject into the record, and accordingly he further sustained appellant's objection to the question asked, and said nothing regarding the statement made by the attorney, for the evident reason that he did not feel himself called on to make any statement regarding same, which situation is much in line with what we said in Salinas v. State, 113 Tex. Cr. R. 142, 18 S.W.(2d) 663, 668, speaking of an argument made: \\\"Possibly to the court, possibly to the jury.\\\" We can not tell as the matter is left to conj ecture.\\nBills of exception complaining of argument, as well as other matters, must be so exact and definite within themselves as to manifest the error complained of. See Tex. Jur., vol. 4, p. 261. The first case cited in support of the text just mentioned is Salinas v. State, supra, in which discussing \\u2022the refusal of a special charge, we said in \\u2022the opinion, \\\"Reflects the fact that the as sistant county attorney said in argument: 'I want to call to your attention that rarely in a court of justice have I ever seen a man apply for a suspended sentence when he was not guilty,' \\\" used language as follows : \\\"We are not apprised in any way as to how many arguments were made in the case, nor at what time in the course of the argument said assistant county attorney spoke, nor what led to the making of the remark. These matters are left to conjecture. All we know from the record is that, while the assistant county attorney was speaking \\u2014 possibly to the court, possibly to the jury \\u2014 he made the remark set out in the charge referred to, and, further, that before the jury retired at the conclusion of the argument, the special charge under consideration was presented to the court, and was then refused.\\\"\\nLater in the opinion it is said: \\\"Manifestly for an attorney to make a statement, possibly in reply to some suggestion of the other side, or in some discussion before the court, or under circumstances justifying or excusing same, but to which no objection is offered to the argument until the case is concluded, perhaps that day, or in many instances some later day, at a time when neither the court nor the attorney can adequately recall or state the facts pertaining to the argument, or adequately explain or withdraw or modify same, is unfair, and should not be tolerated.\\\"\\nThere are other rules equally well settled which apply. If appellant made an objection directed at the rather lengthy statement of the state's attorney above quoted, it was what might be termed a blanket objection, not specifying any part of same as that to which he excepted as likely to create prejudice. As we view it, the greater part of said statement is not open to any such imputation. The rule is that in objecting to argument the particular part deemed a proper subject for such objection should be pointed out, and if not so, the bill of exceptions presenting the complaint .would not call for consideration. See McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172, 179; Moore v. State, 107 Tex. Cr. R. 287, 290, 296 S.W. 308; Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Newman v. State, 99 Tex. Cr. R. 323, 269 S. W. 87; Nelson v. State, 99 Tex. Cr. R. 564, 270 S. W. 865; McVicker v. State, 100 Tex. Cr. R. 598, 272 S. W. 166; Gray v. State, 109 Tex. Cr. R. 481, 5 S.W. (2d) 518. As said by us in Blackmon v. State, 95 Tex. Cr. R. 116, 124, 252 S. W. 803, 807: \\\"There may have been some statements testified to by the witness Champion as made by deceased that could not be classed as coming within a res gesta; declaration. However, no objection appears to have- been made specifically to any particular part, but the objection went to the entire statement.- As made it was not tenable.\\\"\\nThere is another well-settled rule which has application. There must be written request of the trial court to have the jury instructed not to consider argument deemed objectionable. Watson v. State, 105 Tex. Cr. R. 152, 287 S. W. 265; Page v. State, 104 Tex. Cr. R. 63, 281 S. W. 871; Tarver v. State, 108 Tex. Cr. R. 655, 2 S. W.(2d) 439; Rambo v. State, 96 Tex. Cr. R. 387, 258 S. W. 827; Ferguson v. State, 95 Tex. Cr. R. 212, 253 S. W. 290; Smith v. State, 92 Tex. Cr. R. 446, 244 S. W. 522; Shaw v. State, 89 Tex. Cr. R. 205, 229 S. W. 509. When no request for such instruction is made, this court will not reverse for argument unless it be manifestly of such necessarily hurtful character that we conclude an instruction not to consider would have been of no avail. In determining this issue, we have in mind the whole case, including the testimony and the verdict. As' said by this court in McCall v. State, 113 Tex. Cr. R. 62, 18 S.W.(2d) 172, 175, in discussing the reversible character of a statement made in argument by the district attorney, who said, \\\"If you convict the defendant he has a right to appeal and review the judgment of the court,\\\" and after a discussion of certain cases wherein a somewhat similar remark was held ground for reversal: \\\"The statement should not have been made by the district attorney, but doubtless before it was made every man on the jury knew that if appellant was convicted he could obtain a review of his case. In Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548, this court said: 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. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Henderson v. State, 76 Tex. Cr. R. 66, 172 S. W. 793; Bowlin v. State (No. 6418) 93 Tex. Cr. R. 452, 248 S. W. 396, opinion November 1, 1922.' In the opinion on rehearing in the same case Judge Morrow said: 'In deciding whether the argument is of a nature demanding a reversal of the judgment, the language used is not alone the test. The evidence and the verdict must'be considered. Hart v. State, 57 Tex. Cr. R. 21, 121 S. W. 508; Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775; Borrer v. State, 83 Tex. Cr. R. 198, 204 S. W. 10037.' \\\"\\nApplying these rules to the case at bar, what have we ?\\nThe question asked Reese was at practically the end of the testimony. It had been testified to that deceased was a bootlegger; that Shorty Cropper, at whose house in Hamilton the state claimed appellant and Cropper with Tipton formed the conspiracy to kill, was also a bootlegger; that Tupin, with whom appellant went to Hamilton on the day before this killing, was, in the language of appellant, engaged to sell appellant liquor that night, and was looking for a shipment, and thus shown to be a bootlegger; that Wiesendanger, who was with appellant at the home of Milton, deceased, at the very time of the homicide, was there to get jointly with appellant a half gallon of whisky, of which Wiesendanger said he would sell part the next day, thus evidently classing him as an illicit seller of liquor; that the very bill under discussion recites that the witness Reese had said he was familiar with appellant's reputation as a bootlegger, such statement appearing presumably in some other part of his testimony; that appellant was shown to have consorted with these proven bootleggers, and to have followed oil fields, and to have lived at Comanche for a number of years, with very slight showing as to how he made a living, was all before this jury for what it was worth as reflecting the true business and character of this appellant. As Judge Morrow said in the case last above referred to, and in line with what Judge Hawkins said in the same case [Vineyard v. State, supra], we would look at an argument complained of in the light of the testimony and the whole record and the verdict in trying to determine, from our standpoint as an appellate court, whether same be of such harmful nature as to have injected new and hurtful issues, or to have created prejudice, and unless we could overlook all the many obvious objections to this bill, and what was said and done in the light of the whole record, \\u2014 we would not feel inclined to believe the statement of the attorney, even if made in the presence of the jury, and if. such as it could be considered such as would call for reversal.\\nAppellant's chief ground of complaint in this case is that there is not sufficient testimony corroborating the accomplice Monte Sims. There is no question but that appellant was present at the time of the alleged homicide, and she was convicted herein upon the theory that she was a coconspirator with Tipton, the man who fired the fatal shot, and that Monte Sims was an accomplice to said killing. In order that our views might be understood, it will be necessary to set out at some length the testimony.\\nBy witnesses other than the accomplice, the following facts were established: Tip-ton shot and killed Milton. The killing was done about 8:30 p. m. in a street in front of Milton's house, from which house he had just come to the car of appellant with a jar of whisky. Said house was located in the little city of Comanche, some three-quarters of a mile from the public square. Appellant and one W had driven up to a point in front of the home of deceased, had called him out, and asked him to sell them a half gallon of whisky. The night was dark and cloudy. When deceased approached appellant's car, the latter turned off the car lights. \\u2022 At this juncture Tipton appeared from behind said' car with a pistol and commanded them to stick up their hands. Deceased was outside the car and appeared to be slow in getting his hands up, and Tip-ton shot him. Deceased fell beside the car, and Tipton ran his hand into the bosom of deceased and got something, went around the car and fled. Deceased had $215 in the bosom of his shirt before the occurrence. This money was found to be gone afterward. No effort was made by Tipton to rob either W or appellant, or apparently to get from the body of deceased any money or valuables in any other pocket or part of the clothing of deceased.\\nDeceased kept his car in a garage near the house. In the car he kept a shotgun. Examination of the car that night after the shooting revealed the fact that the glass door of the car had been broken and the shotgun was gone. The next day it was. found in some bushes across the road. Lennie Court, who had been the wife of appellant's brother, lived with Shorty Cropper in Hamilton, thirty-six miles from Comanche. At the time of this trial she had married Shorty and is herein referred to as Lennie. On the day before the night of this killing, Tipton and Monte Sims ap peared at Lennie's house in Hamilton. The same day appellant and Tupin went from Comanche to Hamilton and up to Lennie's house. Tipton, appellant, and Cropper were together at said house. Appellant and Tupin returned that afternoon to Comanche. The two got to Hamilton, according to Tupin, just before noon. Appellant testified that they left about 2 p. m. to go back to Comanche. On the way back appellant observed to Tupin that Pink Milton (deceased) flashed so much money that he was going to get robbed some time. While in Hamilton, appellant tried to pawn a shotgun and a rifle which he had carried over from Comanche. After getting back to Comanche, appellant engaged a half gallon of whisky from Tupin, at the house of the latter, this engagement being made, according to Tupin, between sundown and dark, but Tupin said appellant did not come back to his house afterwards for it. Some time in the afternoon after appellant and Tupin got back to Comanche they went to W's house, and appellant there told W he would be back to see him later. He did show up at W's house about 8 p. m., according to W. They then went to Milton's house where the killing occurred in a few minutes.\\nLennie Cropper swore that about 5 p. m. on said day Monte Sims and Tipton left her house going toward Comanche. They came back about midnight that night and stayed a short time. Tipton told her he had killed a man, had to kill him. Monte Sims took \\\"the money out of her bosom and gave it to him, and he counted it, and then he told how he killed the fellow in Comanche.\\\" He said he first got a shotgun out of the fellow's car and threw it in some bushes, and when this fellow came out of the house he ran up to him and told him to \\\"Stick them up.\\\" He said there was a car at the front, and that the fellow he killed had come out to the car, and he told him to stick them up, and that all the time he was coming up with one hand, he was pulling a gun with the other, and he told deceased \\\"Don't shoot,\\\" and the fellow shot at him, and he shot the fellow, and stuck his hand in the fellow's bosom and got his money, and that he run off and back to his car, and went out to a pasture and got lost, threw the gun away, went right through Comanche and on to Hamilton and to her house. She further testified that next morning she and Cropper went to Comanche and had a conference with this appellant, after which they went back to Hamilton.\\nA witness testified that on the night of the killing a man and a woman in a car came to appellant's house inquiring for him, but were told he was not there. This was about 7 or 7:30 p. m. Another witness testified that on the night of this killing he saw appellant near Renfro's market on the public square in Comanche, and later about dark saw appellant in a car with a man and woman who were unknown to witness, going across the public square north in a car together.\\nAppellant denied being in a car on the public square of Comanche that night with a man and woman. He explained his going to Hamilton as in furtherance of his desire to get a political job; also denied that he and W went to the house of deceased save to get whisky that night of the killing. He claimed that he had gone to Tupin's for whisky he had engaged, and said Tupin did not have it. He explained about turning off his car lights at the time and place of the killing by saying that W told him he had better turn off the lights. He later said he had been up there once before and that Milton told him \\\"whenever you come up here turn the lights off.\\\" Asked if another reason for turning off his lights was that he did not want W to see and observe the man who was going to do the hijacking, appellant replied that the only reason he turned his lights off was that Milton told him to turn his lights off whenever he came there. He admitted that the man who shot Milton made no effort to rob him and W, and also said that the man, while robbing the body of deceased, did not look up to see if they had guns. He testified he lived in Comanche and had never seen Tipton until that day. Sheriff Brightman also testified that Tip-ton did not live in Comanche and was a stranger up there. The substance of the testimony of Monte Sims was that on the morning of the day of the killing she and Tipton drove from Big Lake to Hamilton and to the house of Lennie Cropper. The two women went to another house. They came back in the afternoon. Shorty Cropper was then at the house. About 5 p. m. Shorty and Lennie left in a car. About the same time Monte and Tipton left in their car and drove to Comanche, where they arrived about 7 or 8 p. m. They drove around trying to find this appellant, going first to his home where some girls were in the yard. Tipton asked if Mr. White lived there, and some one said yes. He asked if White was there at the house. Some one called to a lady and asked if he was there, and they said, \\\"No, we would find him around Ren-fro's market.\\\" She and Tipton drove down town and found appellant at the side of Renfro's market. He got in the car with them and drove out with them to show them where Milton lived. Tipton did not know where deceased lived. They drove by the house twice, and appellant pointed out the house, the garage, and a ditch. They then drove out to where a gate went into a pasture and here they stopped and talked. Appellant described Milton to Tipton, and told Tipton that he (appellant) would come up in his car and leave the lights on so Tip-ton could see Milton, and if he was the right man he would knock his lights off and then turn them on again. Appellant also told Tipton that Milton did not carry a gun, and would \\\"Histe\\\" easy, and that if he did not \\\"Histe\\\" easy to shoot him as he did not carry any gun at all, but had a shotgun in his car, and for Tipton to get it, that appellant wanted 'it. Appellant told her and Tip-ton to then come out to this gate in the pasture and wait until he (appellant) could get out there. Appellant said several times that Milton did not carry a gun, and had been \\\"Histed\\\" before and would \\\"Histe\\\" easy. Appellant also said he would get somebody else to go with him who would not know anything about it, would pick up a boy and bring him along with him. He showed the woman and Tipton where to park their car. They then drove him back to town and let him out, and she and'Tipton drove back to the place where appellant showed them to park their car, and here Tipton, got out and walked back and 'she' stayed in .the car. Tip-ton was gone about a half hour. When he came back, he gave her some money, but how much she did not know. They then drove back to the gate mentioned where appellant was to meet them and divide the money gotten from Milton. They drove in this gate but decided not to wait. They drove out and down to the edge of Comanche, where they threw away the shoes worn by Tipton, and then came on to the square, got on the Hamilton road and drove to Hamilton and out to Lennie Cropper's, where they stayed not over forty-five minutes, and then drove to Austin, where they filled up with gas and then went on to San Antonio. While they were at Lennie's that night, after coming back from Comanche, Tipton gave to Shorty Cropper part of the money he got from deceased to give to appellant. The money Tipton had was something over $200 in all, but she did not know how much of the money he gave to Cropper..\\nIt is well settled that the state need not corroborate its accomplice witness upon all of his testimony, indeed, the requirement of the law goes no further than to demand that there be testimony other than that of the accomplice which in and of itself tends to connect the accused with the crime alleged. That the corroboration can be by circumstances seems also well settled. See Boone v. State, 90 Tex. Cr. R. 374, 380, 235 S. W. 580; Edwards v. State, 77 Tex. Cr. R. 654, 179 S. W. 1163; Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Stepp v. State, 92 Tex. Cr. R. 325, 244 S. W. 141; Chandler v. State, 89 Tex. Cr. R. 597, 232 S. W. 318; Lamb v. State, 101 Tex. Cr. R. 557, 275 S. W. 1038; Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422; Belot v. State, 121 Tex. Cr. R. 524, 49 S.W.(2d) 1102.\\nWe have here a murder committed in the perpetration of the offense of robbery, the deceased at most an obscure bootlegger living in the outskirts of his home town, killed and robbed by a stranger. The setting of the crime seems to force the conclusion that some one with knowledge acted with Tipton. Was appellant this person? He was familiar with the location of Milton's house, and with Milton's habits of having on his per-son large sums of money. They lived in the same town. By nonaccomplice witnesses it was shown he met Tipton at Hamilton the day of the murder, and met him at the home of his former sister-in-law. Appellant was in Hamilton only about two hours. On the way back'to Comanche he suggested to his companion that Milton was going to be robbed; Milton was robbed and killed that very night by -the man Tipton, whom the jury may have, been justified in believing that appellant had gone to Hamilton that day to see.\\nThe accomplice testified that when she and Tipton got to Comanche in the late afternoon of that fatal day, they tried to contact appellant, and for that purpose went to his house and inquired of some girls in the yard if White lived there and was at home; they were told that he lived there, but was not at home but was down around Renfro's market. She further testified they went to Renfro's market, found appellant, and took him in their car to show them where deceased lived. She is corroborated by a girl who was in White's yard on said night, and also the man on the public square who saw appellant going across the square that night in a car with a strange man and woman.\\nThe accomplice testified that appellant showed them the home of deceased and the garage by it, and told them deceased kept a shotgun in his car in the garag\\u00e9, and that he, appellant, wanted this gun. That very night after the killing it was found that the garage had been entered, the door of his car broken, and his shotgun taken. The gun was found the next morning in some bushes across the road. That night, at Hamilton, in describing the occurrence to a nonaccom-plice witness, Tipton told her that he broke the door of the car of deceased, got the gun, and threw it in the bushes. The facts in this record further show that no opportunity for contact of appellant and Tipton, at the pasture gate after the gun had been so taken, was afforded.\\nThe accomplice also testified that appellant told her and Tipton 'that he would turn off his car lights as a signal to Tipton that the right man had come to the car. By non-accomplice witnesses, in fact by appellant himself, proof was made that when deceased came to the car, the car lights were turned off, Tipton promptly appeared and robbed the very man, and also killed him, and him alone, exactly in accordance with what the woman testified was the set up of the conspiracy. She testified that appellant told Tipton that if he did not \\\"Histe\\\" easy, shoot him. Appellant attempts to explain why he did turn off his lights, giving contradictory explanations but the jury did not have to accept his explanation.\\nAgain, the accomplice testified that as part of the conspiracy appellant said he would take with him to the place a party who would know nothing of the plot and enter Mr. W, who testified that about 8 p. m. appellant came to his house, having previously told him that he would see him later, and that about 8:15 p. m. he and appellant drove to Milton's house, where evidently Tipton was waiting and the tragedy was enacted.\\nDid appellant really want whisky that night? Tupin testified that appellant had asked him to get for him, appellant, a half gallon of whisky late that afternoon, and Tupin testified that he did get it for appellant, but that appellant did not come for it. Again, and significantly, the killer and robber, though \\u00e1 stranger, did not waste time on the two men in the car, or in searching in pants pockets of the dead man, but when Milton fell, Tipton thrust his hand into the bosom of the shirt of his victim where he found $215 and fled.\\nMonte testified that they drove at once to the pasture gate where they were to meet appellant and divide, but he was not there, and they, evidently afraid to wait, drove back to the house in Hamilton, where inference suggests the plot was laid; and here-Lennie testified Monte took frpm her bosom and gave to Tipton \\\"the money.\\\" Monte further testified that here Tipton gave to-Shorty Cropper appellant's half of the loot, with instructions to take it to Hamilton the next day and deliver it to appellant. For some reason, Shorty Cropper and Lennie drove some seventy-two miles to Comanche and back the next day, and as far as this record reflects saw no one in Comanche save this appellant. Cropper attempted to explain this trip by saying that he went to tell appellant that he could not wait longer on him, but would go on to Austin without him to see about a job. As a witness in his-own behalf, appellant's testimony, however, makes plain the proposition that Cropper had no thought of going to Austin for a job until appellant told him in Hamilton that he himself was applying, and Cropper then asked appellant if he thought he might get on. Also that after going to Comanche to see appellant the day after the killing, Cropper did not go at any time to Austin for a job, but instead went through Austin and on to San Antonio.\\nThe case is by no means free of difficulty, and the record has many angles, but as we view it, the facts and circumstances amply support the conclusion of guilt and corroborate the accomplice.\\nFinding no error in the record, the judgment will be affirmed.\"}"

tex/10243530.json

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+"{\"id\": \"10243530\", \"name\": \"TEXAS & N. O. R. CO. v. STANLEY\", \"name_abbreviation\": \"Texas & N. O. R. v. Stanley\", \"decision_date\": \"1935-11-27\", \"docket_number\": \"No. 2851\", \"first_page\": \"141\", \"last_page\": \"141\", \"citations\": \"88 S.W.2d 141\", \"volume\": \"88\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:11:43.637204+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TEXAS & N. O. R. CO. v. STANLEY.\", \"head_matter\": \"TEXAS & N. O. R. CO. v. STANLEY.\\nNo. 2851.\\nCourt of Civil Appeals of Texas. Beaumont.\\nNov. 27, 1935.\\nRoy L. Arterbury, of Houston, for appellant.\\nCarney & Carney, of Atlanta, for appellee.\", \"word_count\": \"328\", \"char_count\": \"1930\", \"text\": \"WALKER, Chief Justice.\\nThis action was instituted in county court of Nacogdoches county by appellant, Texas & New Orleans Railroad Company, against appellee, H. F. Stanley, to recover damages to its property in Nacogdoches county caused by a collision with one of appellee's trucks. Appellant pleaded a trespass in Nacogdoches county by appellee. Appellee answered by plea of privilege that the case be transferred to the county of his residence. Appellant duly controverted this plea. Upon trial the plea of privilege was sustained and the case transferred, as prayed for by appellee.\\nIf we understand appellee's brief, he would support the judgment appealed from upon the sole ground that, under the proof, he did not own the truck and was not responsible for the collision. There was abundant proof that he was guilty of the trespass, as charged.\\nThe proof on the issue of the ownership of the truck was as follows: After the collision appellant's local agent at Nacog-doches had a telephone conversation with a man in the town of Nacogdoches who told him that his name was H. F. Stanley, and that he owned the' truck. Lon B/ Marshall testified that, as the agent of the Ben T. Wilson Chevrolet Company in Nacog-doches, he made an estimate of the cost of repairs on the truck; that the request was made to him by appellee, H. F. Stanley; and that Mr. Stanley told him he owned the truck. There was other testimony to the effect that appellee admitted that he owned the cargo on the truck at the time of the collision.\\nBy its proof appellant satisfactorily established every issue essential to sustain venue in Nacogdoches county. The judgment of the lower court is reversed, and the cause remanded for a new trial.\\nReversed and remanded.\"}"

tex/10244799.json

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+"{\"id\": \"10244799\", \"name\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL\", \"name_abbreviation\": \"Missouri-Kansas-Texas R. v. Hail\", \"decision_date\": \"1932-04-21\", \"docket_number\": \"No. 1523-5835\", \"first_page\": \"589\", \"last_page\": \"591\", \"citations\": \"48 S.W.2d 589\", \"volume\": \"48\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Commission of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:46:23.904036+00:00\", \"provenance\": \"CAP\", \"judges\": \"OURETON, O. J., not sitting.\", \"parties\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL.\", \"head_matter\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL.\\nNo. 1523-5835.\\nCommission of Appeals of Texas, Section A.\\nApril 21, 1932.\\nJ. M. Chambers, of Dallas, and E. V. Hard-wick, of Stamford, for plaintiff in error.\\n\\u25a0 Smith & Smith, of Anson, and M. Y. Brooks^ of Roby, for defendant in error.\", \"word_count\": \"1315\", \"char_count\": \"7350\", \"text\": \"HARVEY, P. J.\\nThis is a suit by Temple Hail against the Missouri-Kansas-Texas Railroad Company of Texas to recover damages for personal injuries. The trial court instructed the jury to return a verdict for the railroad company, and judgment was rendered accordingly. The Court of Civil Appeals reversed that judgment, and remanded the cause. 30 S.W.(2d) 1062.\\nWhile attempting, as a passenger, to board a moving passenger train of the railroad company, at Hamlin, Tex., Hail fell and the train ran over his arm, cutting it off. Among the grounds of negligence charged against the company was the failure of the train operatives to give warning that the train was about to depart, and in causing the train to jerk violently as he attempted to board it. Hamlin is a town through which the passenger train in question was operated. The following facts appear from testimony introduced: On the occasion in question, Hail went to the railway station, a short time before train time, for the purpose of going on the train from Hamlin to Stamford, Tex. There were one or two other persons in the waiting room who intended to become passengers on the train. When the train drew up to the station, the other passengers left the waiting room and boarded the train. Hail started to leave the waiting room with them, but, as he got to the door, it occurred to him that he had not obtained a ticket. He thereupon turned back to the ticket window and purchased a ticket. He then left the waiting room for the purpose of boarding the train. As he came out, the train, which was headed east, was standing on the main track just north of the station. The front end of the baggage and express car lacked a few feet of being opposite the entrance to the waiting room. Behind the baggage and express car were two coaches. The front end of the hindmost coach was the place where passengers were expected, to board the train. This place for boarding the train was, on the occasion in question, some 140 or 150 feet west of the entrance to the waiting room. The undisputed evidence shows that it was customary for the train in question to stop at Hamlin no longer than was necessary for passengers to disembark and embark, and for the loading and unloading baggage and express shipments into and from the baggage and express car; and that those operations usually required about 3 or 4 minutes of time. The evir dence also shows, without dispute, that it was customary, and had been for a long period of time, for the conductor or some other train operative, to give warning that the train was ready to depart by calling out \\\"All aboard.\\\" Hail knew of these several customs, and knew that the train usually stopped but about 3 or 4 minutes. On leaving the waiting room as stated above, Hail turned his steps westward toward the rear passenger coach for the purpose of getting aboard the train. As he walked along he passed a truck which was drawn up beside the baggage and express car, and saw the conductor and another man on the truck engaged in loading and unloading baggage, and perhaps express shipments, into and from the baggage and express car. He continued on toward the rear coach. When he reached a point about 15 or 20 feet from the rear coach he met two men, who were friends of his, and who had just assisted a relative of theirs to board the train. On meeting these men, he became engaged in conversation with them, and turned and walked southward with them to a point on the station grounds, which point was about 35 or 40 feet southeast of the front end of the rear passenger coach, where the train was to be boarded. At said point, the three stopped, and a few seconds later the two friends of Hail moved on. About this time, Hail saw the train begin to move. The interval of time that had elapsed since he left the waiting room was about three minutes. He testified that he had been constantly listening for the .warning signal, \\\"All aboard,\\\" to be called, and was relying on such warning signal to be given. He testified to facts which tend to prove that said warning call was not made by any of the-train operatives, or anyone else. None of the train operatives were down in the vicinity of the rear coach. Hail knew the conductor and knew'that he, or some other trainman1, usually called out \\\"All aboard\\\" when the train was ready to depart. There is testimony to show that, if this warning call had been given on the occasion in question, Hail could and would have reached and boarded the train before it began to move. When he discovered that the train was moving out, as stated above, he walked rapidly to it, as it moved slowly along, and taking hold of the hand rails on either side of the steps le\\u00e1ding to the front platform of the rear coach \\u2014 one with his left hand and the other with his right \\u2014 he stepped up on the lower step. Just as he did this, the train gave two violent jerks or lurches forward, which resulted in Hail being thrown to the ground and being injured as stated. This accident occurred about 8:00 p. m. February 18, 1929.\\nThe testimony raises a fact issue as to negligence oh the part of the railroad company, in failing to give the customary warning call \\\"All aboard.\\\" It cannot be doubted that the facts stated show that the status of Hail was that of passenger, and that the company had become charged with the duty to exercise that high degree of care for his safety which the law imposes on a carrier of passengers. Hail did not lose his status of passenger, by failing to go immediately and get aboard the train when he purchased his ticket. Nor do we think that it can be said, as a matter of law, as the plaintiff in error contends, that Hail was negligent in failing to go aboard immediately. Admittedly he knew that the train, according to custom, would remain standing no longer than was necessary for passengers to get 'on and oft the train, and for the loading and unloading of baggage and freight into and from the baggage and express car. The length of time the train usually remained stopped was variable, depending on the length of time required to conclude the operations named. Hail also knew, however, that the warning signal \\\"All aboard\\\" was customarily given when those operations were concluded and the train was ready to depart. About three minutes before the accident occurred he had seen the conductor, and another . man, up towards the front end of the train, engaged in loading and unloading baggage and freight. He was listening for the warning call that would signify that this task had been completed, and that the train was ready to go. It would be going too far to hold, as a matter of law, that Hail, under these circumstances, negligently delayed getting aboard the train. That, we think, was a jury question.\\nFor the reasons stated, we recommend that the judgment of the court of Civil Appeals, reversing the judgment of the trial court, be affirmed.\\nGREENWOOD and PIERSON, JJ.\\nJudgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.\\nOURETON, O. J., not sitting.\"}"

tex/10260528.json

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+"{\"id\": \"10260528\", \"name\": \"MASON v. PRINCE\", \"name_abbreviation\": \"Mason v. Prince\", \"decision_date\": \"1938-09-22\", \"docket_number\": \"No. 3746\", \"first_page\": \"1087\", \"last_page\": \"1090\", \"citations\": \"120 S.W.2d 1087\", \"volume\": \"120\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T02:15:19.300037+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MASON v. PRINCE.\", \"head_matter\": \"MASON v. PRINCE.\\nNo. 3746.\\nCourt of Civil Appeals of Texas. El Paso.\\nSept. 22, 1938.\\nRehearing Denied Oct. 13, 1938.\\nJohn B. Daniel, of Temple, for appellant.\\nHamilton, Lipscomb & Wood, Logan Ford, and Burford, Ryburn, Hincks & Charlton, all of Dallas, for appellee.\", \"word_count\": \"2021\", \"char_count\": \"11923\", \"text\": \"WALTHALL, Justice.\\nThis is a suit by W. D. Prince, Receiver of the Lloyds of Texas, appellee, filed on May 26, 1934, in the 101st Judicial District Court, and subsequently transferred to the 44th District Court of Dallas County, Texas, against H. B. Mason, appellant, an underwriter of the Lloyds of Texas, to recover on the latter's subscription contract the sum of $1,220, which sum is appellant's several and pro rata liability on losses and claims which have accrued against the Exchange on policies issued, from the time he became an underwriter on January 18, 1929, until the cancellation of his power of attorney at a meeting of the underwriters at the Baker Hotel on April 14, 1930. Appellee, in-addition to appellant's several and pro rata liability on losses and claims which have accrued against the Exchange, sought to recover the sum of $400 as appellant's part of the expenses incurred in administering the estate in receivership since May 16, 1930, the date on which the estate was placed in the hands of a receiver, upon application of the Attorney General of Texas. Recovery for administration expense was abandoned on motion for judgment.\\nAppellant answered, setting up plea of privilege, pleas in abatement, pleas to the jurisdiction of the court, and other dilatory pleas and exceptions, defense of fraud inducing the execution of the subscription contract, and failure of consideration, all-of which pleas and defenses were waived.\\nAppellant defended on the ground that he revoked his power of attorney on May 3, 1929, by letter dated May 2nd, addressed to the attorney in fact, and received by him on May 3, 1929.\\nAppellee by supplemental petition plead that appellant was prohibited from successfully asserting his plea of revocation by reason of the finding of the Master in Chancery in the original suit, to which appellant was a party. That under proper Orders of Reference the Master in Chancery found appellant did not terminate his subscription contract until April 14, 1930. That appellant did not reserve any exception to the findings of the Master, or to the order of the Court confirming and adopting same. That such finding and approval by the Court constitute an adjudication adverse ' to appellant's plea, and in the absence of an objection thereto is conclusive upon him, and effectually precludes him from asserting the revocation of his power of attorney on May 3, 1929. Appellee further plead that appellant was estopped to assert that he had revoked his power of attorney on May 3, 1929, and had waived such defense because of his participating as an underwriter in a meeting of the Lloyds of Texas on April 14, 1930, and seconding the motion to cancel the powers of attorney and transfer to the Insurance Commission the assets of the Exchange for immediate liquidation with knowledge of the facts he now pleads to defeat recovery on his underwriter's contract \\u2014 to-wit, his alleged revocation on May 3, 1929. Appellee further alleged that the attorney in fact did not comply with the instructions contained in the letters of May 2 and 4, 1929. That the attorney in fact continued to write policies of insurance on the faith of appellant's subscription to the surplus of the Exchange, continued to list appellant as an underwriter on the books of the Exchange up to the appointment of a receiver on May 6, 1930, listed appellant as an underwriter in the annual report filed on February 8, 1930, with the Insurance Commission at Austin, and on December 31, 1929, represented to the examiner of the Insurance Commission that appellant was an underwriter. That policies of insurance were issued and credit was extended to the Exchange because of his apparent status as an underwriter. That appellant knew he was being held out to the public as an underwriter and contributor to the surplus of the Exchange. That the rights of creditors have intervened. That appellant-neglected to bring suit to cancel and rescind his underwriter's contract until June 6, 1930, after the Exchange had been adjudged insolvent and a receiver appointed to wind up its affairs, and that by reason of such facts appellant was estopped from asserting that he had revoked his subscription contract on May 3, 1929, and to deny his liability for the debts, claims, losses and expenses which accrued between January 18, 1929, and the termination of his power of attorney on April 14, 1930.\\nThe case was tried before a jury. At the close of the testimony appellee filed its motion for an instructed verdict in the sum of $1,220, defendant's several and pro rata liability on the unpaid losses due by the estate. This request was overruled by the court, to which appellant duly excepted and same is reserved by proper bill of exception.\\nThe jury found that appellant revoked his power of attorney on May 3, 1929. That he did not thereafter abandon his revocation and that he participated in a meeting of the underwriters on April 14, 1930, as an underwriter of the Exchange.\\nThe undisputed evidence discloses that in the event appellant revoked his power of attorney on May 3, 1929, and such revocation becomes effective upon receipt of notice thereof, appellant's liability is $51.-44. In the event his alleged revocation does not become effective until three months thereafter, as provided by the terms of the underwriter's contract, his liability is $488.46. In the event the appellant's subscription contract was terminated on April 14, 1930, his liability is the sum of $1,220%\\nAppellant asked that- judgment be rendered on the verdict against him for $51.-44. Appellee filed motion for judgment notwithstanding the verdict, and in the alternative, on the verdict. After notice and hearing the court granted appellee judgment for $1,220.\\nAppellant duly perfected his appeal.\\nOpinion\\nIn view of the disposition we have concluded to make of this- case it becomes unnecessary to state the findings of the jury on the facts submitted more than to say that appellant participated as an underwriter in the meeting of the underwriters of the Lloyds of Texas on April 14, 1930 at the Baker Hotel in Dallas, Texas, the trial court having entered judgment for appellee on appellee's motion non obstante veredicto for the sum of $1,220, from which judgment this appeal is prosecuted.\\nIn the discussion we make of the case we think the issues submitted in appellant's several propositions and appellee's counter propositions are sufficiently made to appear, without stating them severally. There is but little, if any, controversy on the facts.\\nDr. Mason's sole defense, as we view it, consists of a plea of revocation of his subscription contract by his letters of May 2nd and May 4th, 1929.\\nAppellee by supplemental petition, as stated, plead that appellant was prohibited from asserting his plea of revocation by reason of the finding of the Master in Chancery in the original suit, in which suit - appellant was a party; that under proper Orders of Reference the Master in Chancery found that appellant did not terminate his subscription contract until April 14, 1930; that appellant did not reserve any exception to the finding of the Master in Chancery or to the order of the Court confirming and adopting such finding.\\nThe statement of facts covers about 227 pages and is too extensive to copy, even briefly, the facts therein contained.\\nAppellant was a party to the original suit and filed answer in which the Lloyds of Texas was placed in the hands of a receiver, and where the Orders of Reference to the Master were made and his report approved and confirmed, and the findings therein \\\"ratified and adopted as the acts and findings of the court\\\" (the 44th District Court of Dallas County).\\nOn the 9th day of February, 1935, in the same proceedings the court referred additional matters to the Master for the purpose of hearing, determining and certifying his findings to.the Court the various underwriters of the Lloyds of Texas, the amount of each underwriter's subscription to the-guaranty fund of the Association, the date each became an underwriter, and the date his relationship terminated. The order provides that \\\"upon conclusion of such hearings that the Master embody his findings, together with those previously made in this cause,'in a written report, and file same with the Clerk of this Court on or before the 18th of February, A. D. 1935,\\\" and extended the time for the filing of the report. The order of the court further provided: \\\"All exceptions and objections to the Master's Report shall be filed herein on or before the 23rd day of February, A. D. 1935, on which date such exceptions and objections as have been filed will be heard and the Master's report be approved and confirmed in whole or in part, or rejected in whole or in part, as the facts and justice of the case may determine.\\\"\\nThe Master's report was duly filed. The Master found in his report that appellant became an underwriter on January 18, 1929, and that he terminated his subscription on April 14, 1930. In addition to the foregoing recitation in the report, the following appears in the Master's report: \\\"I find that the Lloyds of Texas went into liquidation on April 14, 1930, and that the subscribers withdrew from any liability on further business written after that date, and that all of the subscribers withdrew their subscriptions on that date,\\\" except W. O. Woten of Abilene, who withdrew in 1929.\\nThe report of the Master in Chancery was, by the Court adopted as the findings of the Court. Appellant did not appear and contest the approval of the report, nor did he reserve any exception to the action of the Court in adopting same as its findings.\\nWe do not understand that appellant controverts any of the above statements, but he contends in effect that the Master's report cannot deprive him of the right in this suit to have issues therein found adversely to him inquired \\\"into anew by a jury. On the contrary, appellee submits that in the absence of timely exception to the Master's report and the order of the Court confirming the report, the Master's report is conclusive on the facts reported and confirmed.\\nAppellant refers us to, and copies therefrom at length in his brief, San Jacinto Oil Company v. Culberson, 100 Tex. 462, 101 S.W. 197, the opinion by Judge Williams ; he also refers to Dwyer v. Kalteyer, 68 Tex. 554, 5 S.W. 75, the opinion by Judge Gaines. We have carefully reviewed each of those cases in connection with other cases referring to them, such as Kalteyer v. Wipff, 92 Tex. 673, 52 S.W. 63, the opinion also by Judge Williams; also the case of Arlington Heights Realty Company v. Citizens' Railway & Light Co., Tex.Civ.App., 160 S.W. 1109, 1117; Kemp- tier v. Galveston County, 76 Tex. 450, 13 S.W. 460.\\nWe understand the opinion of Judge Williams as holding in the San Jacinto Oil Co. v. Culberson Case that it was not necessary in the hearing before the Master in Chancery to except to the Master's rulings and to embody those rulings in exceptions before the Court, but that it was sufficient if, after the report of the Master was filed and before it was approved and adopted by the Court, the exceptions to the report should then be filed, and that it is at the time of the hearing of the report before the Court and not the Master that the matters and findings expressed in the report may be inquired into anew, and the question of fact at issue be then determined.\\nWe understand the courts uniformly to hold that in the absence of an exception to the Master's report the report of the Master becomes matters adjudicated.\\nWe have concluded that the case should be affirmed, and it is so ordered.\\n.Affirmed.\"}"

tex/10261616.json

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+"{\"id\": \"10261616\", \"name\": \"YOUNG v. STATE\", \"name_abbreviation\": \"Young v. State\", \"decision_date\": \"1931-02-11\", \"docket_number\": \"No. 13976\", \"first_page\": \"991\", \"last_page\": \"996\", \"citations\": \"46 S.W.2d 991\", \"volume\": \"46\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:54:51.954131+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"YOUNG v. STATE.\", \"head_matter\": \"YOUNG v. STATE.\\nNo. 13976.\\nCourt of Criminal Appeals of Texas.\\nFeb. 11, 1931.\\nState\\u2019s Rehearing Granted Jan. 20,1932.\\nAppellant\\u2019s Rebearing Denied March 9, 1932.\\nR. L. Neal and J. F. Hair, both of San Antonio, for appellant.\\nK. K. Woodley, Dist. Atty., of Sabinal, and Lloyd W. Davids on, State\\u2019s A tty., of Austin, for the State.\", \"word_count\": \"4567\", \"char_count\": \"25696\", \"text\": \"MORROW, P. J.\\nThe offense is murder; penalty assessed at confinement in the penitentiary for a period of fifty years.\\nThe evidence is such as to show that Johnnie W. Bradshaw was murdered, and that Homer Edwards and the appellant were present at the time the offense was committed. Appellant claims that Edwards committed the offense and that he (appellant) was merely present and took no part in it. The homicide occurred on April 9,1930. The appellant had twice been adjudged a lunatic, first in February, 1929, and again in January, 1930. Judgments, regular on their face, showing that the appellant was insane, were introduced in evidence. Some ten days before the homicide, the appellant and Edwards, who was likewise an inmate of the insane asylum, had escaped therefrom.\\nThe court instructed the jury on the defense of insanity. Paragraph 10 of the charge reads as follows: \\\"The judgments of the County Court in Bexar County, Texas, which have been introduced in evidence before you, \\u2022adjudging that the defendant was insane on the 26 day of February, 1929, and also on the 8 day of January, 1930, established the fact that he was insane on the 8 day of January, 1930 and raise the presumption that he was insane at the time Johnnie W. Bradshaw was killed, but whether he was sane or insane at the very time of such killing is a question which it is your exclusive province to determine from all the facts and circumstances in evidence before you.\\\"\\nUnder the facts, the jury should have been instructed, in substance, that by reason of the judgments of insanity, the presumption existed that the appellant was insane at the time the offense was alleged to have been committed, and that the burden was upon the state to prove from the evidence, beyond a reasonable doubt, that at the time the deceased was killed the appellant was sane, and, rfnless the state did so prove, the jury could not convict the accused of murder. In article 34, P. 0.1925, it is said: \\\"No act done in a state of insanity can be punished as \\u00e1n offense.\\\"\\nThat such is the law of this state has been declared many times. See Witty v. State, 69 Tex. Cr. R. 125, 153 S. W. 1146; Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180; Davidson v. State, 109 Tex. Cr. R. 255, 4 S.W.(2d) 74, and precedents there cited.\\nIn the succeeding paragraph of its charge the court instructed the jury on insanity, using the following language: \\\"Ordinarily every person is presumed to be sane until the contrary is shown by proof, but in this ease the defendant is presumed to have been insane at the time of the killing, and, therefore, not responsible for any act that he may have committed, until the contrary is shown by evidence beyond a reasonable doubt. So, even though you should find and be satisfied from the evidence under the charges hereinbefore given you that the defendant committed the act charged in the indictment, either alone or as a principal with one, Homer Edwards, still you cannot convict the defendant unless you further find and believe from the evidence beyond a reasonable doubt that the defendant was sane at the time of the killing.\\\"\\nThe part of the charge last quoted above manifests the intention of the learned trial judge to give a fair charge on the law of insanity. It is believed, however, that, when paragraphs 10 and 11 are considered together, they are calculated to leave the jury in doubt as to the burden of proof. The appellant had been adjudged insane and placed in a lunatic asylum. He had not been discharged. The judgments of insanity had not been set aside. He had recently escaped from the lunatic asylum. The evidence against him is wholly circumstantial, and the facts are such as to require for his protection that the jury be given a charge in which there could be no mistake that they would understand, that the burden of proving that the appellant was sane at the time the criminal act is charged to have taken place is upon the state, and, unless the burden was discharged, there could be no conviction.\\nThe sufficiency of the evidence to support the verdict is very earnestly challenged by the appellant's counsel. A reversal of the case upon other grounds renders it improper for us to express any opinion with reference to the sufficiency of the evidence.\\nEor the reasons stated above, the judgment is reversed, and the cause remanded.\"}"

tex/10261772.json

@@ -0,0 +1 @@
+"{\"id\": \"10261772\", \"name\": \"NELSON v. STATE\", \"name_abbreviation\": \"Nelson v. State\", \"decision_date\": \"1930-11-26\", \"docket_number\": \"No. 13656\", \"first_page\": \"443\", \"last_page\": \"444\", \"citations\": \"35 S.W.2d 443\", \"volume\": \"35\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:52:23.665970+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAWKINS, J., absent.\", \"parties\": \"NELSON v. STATE.\", \"head_matter\": \"NELSON v. STATE.\\nNo. 13656.\\nCourt of Criminal Appeals of Texas.\\nNov. 26, 1930.\\nRehearing Denied Feb. 11, 1931.\\nReynolds & Heare, of Shamrock, and J. Everett Cline, of Fort Worth, for appellant.\\n\\u2022 Lloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"720\", \"char_count\": \"4063\", \"text\": \"MARTIN, J.\\nOffense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.\\nProsecuting witness, Conway, testified to the unconditional sale to himself by appellant of one quart of whisky, for which he paid him $2.50. He was corroborated by another witness.\\nThe chief contention made on this appeal is the alleged error of the court in failing to define the term \\\"sale.\\\" As already indicated, the testimony for the state showed an absolute sale. Appellant testified that he was standing near when the prosecuting witness asked for whisky for medicinal purposes, and that he then said:\\n\\\"I told him that he couldn't buy it but if he would come in the house I would let him have what I had, if it would do him any' good. There was nothing said about the price of it or paying for it, or borrowing it or paying it back or anything of that kind, but it was in my mind that he would replace the whisky.\\\"\\nWe do not think that the quoted testimony called for any charge of the character suggested. The testimony for the state made out a sale, and that for the appellant showed a gift, of the whisky. There was not, in our opinion, any suggestion of barter or exchange or any character of transaction other than either a straight sale' or gift of the whisky in question. Under such circumstanc'es, it was not necessary to define the term \\\"sale.\\\" Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Stephens v. State, 50 Tex. Cr. R. 251, 96 S. W. 7; Young v. State, 92 Tex. Cr. R. 277, 243 S. W. 472.\\nSpecial charge No. 6 requested the court to submit the issue of the transaction being only a gift, which was apparently appellant's theory of the case. The court refused to give this charge, but his action was not excepted to, and, in the absence of such, the question cannot be reviewed. Linder v. State, 94 Tex. Cr. R. 317, 250 S. W. 703.\\nFinding no error in the record, the judgment is affirmed.\\nPER CURIAM.\\nThe foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.\\nHAWKINS, J., absent.\"}"

tex/10262861.json

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+"{\"id\": \"10262861\", \"name\": \"PARSONS v. CITY OF FORT WORTH et al.\", \"name_abbreviation\": \"Parsons v. City of Fort Worth\", \"decision_date\": \"1931-11-11\", \"docket_number\": \"No. 4100\", \"first_page\": \"464\", \"last_page\": \"465\", \"citations\": \"44 S.W.2d 464\", \"volume\": \"44\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:15:28.498695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PARSONS v. CITY OF FORT WORTH et al.\", \"head_matter\": \"PARSONS v. CITY OF FORT WORTH et al.\\nNo. 4100.\\nCourt of Civil Appeals of Texas. Texarkana.\\nNov. 11, 1931.\\nRehearing Denied Nov. 19, 1931.\\nJ. M. Willis and C. F. Clark, both of Fort Worth, for appellant.\\nCecil Morgan and Alva W. Bound, both of Fort Worth, for appellees.\", \"word_count\": \"1041\", \"char_count\": \"5807\", \"text\": \"SELLERS, J.\\nThis was a suit filed by the city of Fort Worth for the use and benefit of Colglazier, Huff & Co., paving contractors, against Ed Y. Parsons and wife, Mollie B. Parsons, on a paving assessment certificate issued against the defendants for the paving of Allen avenue in the city of Fort Worth; said avenue being an alley back of defendants' property and shut off from defendants' property by a fence or wall of Chase court. The certificate was for the sum of $502.39, and provided for interest and attorney's fees. It was admitted that the property of defendants was a homestead and the separate property of the defendant Mollie B. Parsons. The case was tried to the court without the intervention of a jury, and resulted in a personal judgment for the plaintiffs against the defendant Mollie B. Parsons for the sum of $706.35, to which judgment the defendant Mollie B. Parsons excepted and has duly prosecuted this appeal. The plaintiff pleaded, with reference to notice, as follows: \\\"That said resolution also prescribed a hearing to be given to said property owners and fixed a day for said hearing to be held on the 9th day of August, 1927, at nine A. M. in the City Council chambers in the City Hall, Fort Worth, and directed the City Secretary to issue notices to each of the property owners, their agents and attorneys or representatives,' including the defendants herein, Mollie B. Parsons and Ed V. Parsons, by advertising in the Fort Worth Press, a daily newspaper of general circulation in the City of Fort Worth and surrounding country by publishing said resolution and notice for five consecutive days prior to said hearing. That said notices were duly published in said paper for five consecutive days, to-wit, on and from the 25th day of July, 1927, to and including the 29th day of July, 1927. And said notices advised said defendants of said hearing on the 9th day of August, 1927, in the Council chambers in the City Hall of Fort Worth at nine A. M., and of the proposed assessment of $\\u215e02.39 against him and his property and of the creation of a lien thereon.\\\"\\nIt was further alleged that on the 9th day of August, 1927, no quorum being present, said meeting was postponed on the 16th day of August, 1927. The defendants specially pleaded as follows:\\n\\\"And defendants further say that no such hearing was held pursuant to any notice given thereof and all the proceedings by which said assessment was made against these defendants, or either of them, for the cost of said improvements are void and of no force and effect.\\n\\\"Defendants deny that the meeting of the City Council of the City of Fort Worth to have been held on the- 9th day of August, 1927j when the hearing in this matter is alleged to have been had for the benefit of the property owners affected by said alleged improvements was postponed until August 16, 1927, and deny that any hearing on said resolution pursuant to any notice thereof was ever held by said City Council on said resolution.\\\"\\nThe- testimony of the city secretary to the following effect is undisputed: \\\"My name is I. L. Yan Zandt, Jr. I am City Secretary of Fort Worth. I keep the Minutes of the proceedings of the City Council of the City of Fort Worth. I occupied that position and kept the Mitotes and records of the City in the year 1927. I have here a part of the Minutes of the meeting of the City Council of the City of Fort Worth during the month August, 1927. I do not have the Minutes \\u00f3f a meeting, of August 9, 1927. There was no meeting that date. * \\u215c \\u215c They did not assemble at all. There is no Minute \\u00f3f an assembly on August 9th at all.\\\"\\nUnder articles 1093 and 1094 of the Revised Statutes of 1925, it is mandatory and jurisdictional that a' city comply strictly with the requirements of said articles before a valid assessment may be had against an owner of abutting property for public improvement.\\nThe sufficiency of the notice given appellant by the appellee is not questioned. The notice required the property owners to appear before the council on August 9, 1927, at 9 o'clock a. m. in the chambers of the city council at the city hall, Fort Worth, Tex.\\nThe vice in the proceedings is in the failure of the city council to meet at the time and place the notice required the property owners to appear. The evidence on this point is undisputed. There, was no meeting of the city council on August 9, 1927, and, so far as the statement of facts discloses, there is no explanation of why the meeting was not held. The city council, having failed to meet on the 9th day of .August, never acquired jurisdiction to make an assessment against appellant's property, Gill v. City of Oakland, 124 Cal. 335, 57 P. 150, and the attempted assessment made on August 16, 1927, was void. The rights of property owners in such cases are too sacred to hold otherwise.\\nIf the city council had met on August 9th, and had, in fact, adjourned the meeting to August 16th, a minute of the proceeding would have been made by the city secretary, which would have constituted sufficient notice to the property owners of the meeting to be held on August 16th, Crabb et al. v. Uvalde Paving Co. (Tex. Com. App.) 23 W.(2d) 300, but this was not done. No new notice having been given, the property owners were without any notice, as required by law, of the meeting of August 16, 1927.\\nThe disposition to be made of this appeal makes the discussion of other assignments unnecessary.\\nThe judgment of the trial court will be reversed, and judgment here rendered for appellant.\"}"

tex/10267781.json

@@ -0,0 +1 @@
+"{\"id\": \"10267781\", \"name\": \"SMITH v. STATE\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1934-06-20\", \"docket_number\": \"No. 16908\", \"first_page\": \"1087\", \"last_page\": \"1088\", \"citations\": \"72 S.W.2d 1087\", \"volume\": \"72\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:55:08.247560+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITH v. STATE.\", \"head_matter\": \"SMITH v. STATE.\\nNo. 16908.\\nCourt of Criminal Appeals of Texas.\\nJune 20,1934.\\nW. W. Ballard, of Wichita Falls, for appellant.\\nLloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"1313\", \"char_count\": \"7343\", \"text\": \"LATTIMORE, Judge.\\nConviction for conveying tools, etc., to prisoner in jail; punishment, two years in the penitentiary.\\nThe sheriff of Young county testified that on the 3d of November, 1933, a package came by mail to the jail for Clifford Smith, investigation of which revealed that same contained a cake in which were found eight hack saws and a letter. A typewritten letter appearing in the record is unsigned and has no other address except, \\\"Your Pal.\\\" It is to be regretted that more care was not exercised in the trial of this cas\\u00e9 in identifying documents which were exhibited to witnesses and which are not marked or brought forward in such manner as that we may be able to identify them. Examining the testimony of Sheriff Foster, we observe the following statement, referring to the wrapper around the box mentioned: \\\"(The State here offers the wrapper in evidence.)\\\" If there was anything about the wrapper which would aid in solving the issues, same is not brought forward in this record. Later, on the same page of the statement of facts, apparently referring to the letter which was in the cake mentioned, appears the following: \\\"(The state here offers the letter in evidence.)\\\" There is nothing from which this court can learn what mark of identification was put upon either the wrapper or the letter referred to. The same observation applies to a wrapper on another package which seems to have been taken off this appellant, the wrapper being offered in evidence without any mark of identification, nor can we tell what became of same. The state called Mr. Hammond, a rural mail carrier of Wichita county, who said that on the 3d day of November, 1933, two girls or young women were at a mail box to which he came in his rounds, and they handed him a package to be mailed, and gave him money to pay for the postage. He identified the wrapper and box shown him as the one handed him by them; but if there is any connection between \\\"this package\\\" and any package identified by any other witness, further than that he says the package delivered to him was addressed to Clifford Smith at Graham, Tex., care the county jail, it does not appear in the record. Mr. Hammond said he did not see the appellant or any other person at the time the package referred to was delivered to him by the two young women. The state recalled Mr. Foster, who said that if Evalee Adams and Mabel Hartman were ever in the jail at Graham he did not know it. He said that Clifford Smith had women callers while he was in. jail, and these two young women may have been among the number, but he could not say whether they had been there or not. The state then identified two indictments, one against Clifford Smith and the other against this appellant, bearing date of September 5, 1933. It was shown that appellant had been in jail with Clifford Smith, but was released some time prior to November 3, 1933, the alleged date of the delivery of the saws and letter. At this point the state rested its case-\\nAppellant introduced Mr. Yates, a deputy sheriff of Young county, who said that he had admitted Mabel Hartman and Evalee Adams to the county jail while Clifford Smith was there. Appellant introduced Clifford Smith, who said the two women mentioned had visited him in jail, and that he had received letters from them. He was shown a letter which he received from Mabel Hartman and said he had seen her write and knew it was her handwriting. What became of this letter, and whether it was introduced in evidence, does not appear. Witness refers to various letters, and winds up his direct testimony by saying: \\\"I have seen the defendant write his name and sign his signature. This isn't his handwriting you are showing me. In my opinion this is the defendant's handwriting on State Exhibit No. 3.\\\" Whether State-Exhibit No. 3 is the letter which came in the-cake is left to conjecture and inference. On cross-examination he repeated his ability to-identify the handwriting of Mabel Hartman, and being shown what is denominated De fendant's Exhibit No. 2, be says it appears to be from Mabel Hartman, but he would not testify whether it was or not in her handwriting. Shown another letter, he says he thinks it is in Mabel Hartman's handwriting, Shown another letter, he said that it did not look like Evalee Adams' handwriting. Shown a letter by defense counsel, he says that it was the signature of Mabel Hartman on that letter. What letter she was shown is left blank by this record. The defense introduced Mrs. Adams, the mother of Evalee Adams, who said that on the 3d of Novemr ber she, Evalee, and Mabel were at her house, and that no one else was there; she stayed at home all day; she did not see this appellant around the house that day; that Mabel and Evalee told her they were going to bake a cake; she saw them bake part of the cake; she repeated she did not see appellant there. Shown a letter apparently written by Evalee Adams, witness said that it was in Evalee's handwriting. Shown another letter and asked if it was Mabel Hartman's handwriting, she said she could not tell who wrote that. We know nothing of them because they are not before us. At this juncture both sides closed.\\nWe find then a typewritten document which seems to be styled State Exhibit No. 3, also copies of two indictments marked State Exhibits 4 and 5, then a document entitled Defendant's Exhibit No. 3, which appears to be 'two or three lines written with a pen and ink, the original appearing to be sent up, addressed to no one and signed by no one.\\nWe have tried as best we can to determine what documents are referred to or identified with any such certainty as would justify their being used as evidence upon which to secure a conviction of a citizen of this state for a felony, without success. No witness testified that the typewritten document appearing In this record as State Exhibit' No. 3 was ever in possession of appellant, or written by him, or that it was in his handwriting. Apparently it was the state's theory that the recitals in said letter must be taken as things which could not have been written but by appellant. We do not think that a safe rule of evidence by which to determine the admissibility of a written statement. The document was not found on appellant's person or in his possession. The postman who testified for the state did not see appellant in connection with the mailing of the package containing the saws, the cake, or the letter. Neither of the two young women who were present at the mailing of the package testified. The mother of one of them said she heard the two girls talking 'about baking a cake; that appellant was not present at her house at that time nor that day. There was no expert comparison of any kind between any real writing or signature of this appellant with the address on the package, or with the letter found inside the package. This case was submitted to the jury on the law of circumstantial evidence, and we do not think the legal testimony shown in the record to be such as to ex-elude every other reasonable hypothesis except the guilt of the accused,\\n\\u215b judgment will be reversed, and the cause remanded.\"}"

tex/10280481.json

@@ -0,0 +1 @@
+"{\"id\": \"10280481\", \"name\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\", \"name_abbreviation\": \"Tanton v. State Nat. Bank of El Paso\", \"decision_date\": \"1931-11-12\", \"docket_number\": \"No. 2587\", \"first_page\": \"957\", \"last_page\": \"963\", \"citations\": \"43 S.W.2d 957\", \"volume\": \"43\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:03:23.466424+00:00\", \"provenance\": \"CAP\", \"judges\": \"PELPHREY, C. X, and HIGGINS and WALTHALL, JJ.\", \"parties\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\", \"head_matter\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\\nNo. 2587.\\nCourt of Civil Appeals of Texas. El Paso.\\nNov. 12, 1931.\\nRehearing Denied Dec. 3, 1931.\\nGowan Jones and C. M. Wilchar, both of El Paso, for appellants.\\nO. R. Armstrong, John T. Hill, J. E. McKenzie, and H. R. Gamble, all of El Paso, for appellees.\\nPELPHREY, C. X, and HIGGINS and WALTHALL, JJ.\", \"word_count\": \"5459\", \"char_count\": \"30597\", \"text\": \"This is a suit by Tanton and wife to recover a tract of land containing about sixty-eight acres in El Paso county.\\nThe suit was filed February 17, 1930, against the devisees of M. W. Stanton, deceased, and his independent executor, the State National Bank of El Paso, Tex. The petition was in three counts. It was alleged that plaintiff resides in El Paso county, Tex., and has been a resident and bona fide citizen and inhabitant thereof for morp than twenty years prior to the filing of the suit. The first count was in the usual form of the action in trespass to try title. The second count was in the alternative and adopted all allegations in the first count not inconsistent with the second count, and pleaded specially plaintiff's record title and that the property was the homestead of plaintiff from 1911 until at least on or about August 29, 1921, at which last date plaintiff .by warranty deed conveyed same to R. W. Humphrey; that plaintiff at no time has owned or acquired any other homestead ; that, after the warranty deed to Humphrey, said Humphrey by and through tenants entered into peaceable and adverse possession under title and color of title and remained in peaceable and adverse possession until ejected in 1926, and pleaded the three-year statute of limitation; that Humphrey died in 1926, and in February, 1928, his heirs by warranty deed conveyed the premises to plaintiff; plaintiff denied that defendants had or ever had any right, legal or equitable, in the property, and pleaded the four-year statute of limitations against any right of defendants. The third count adopted all allegations in the first and second counts not inconsistent therewith, and in the alternative pleaded that if the court should decide that any right, legal or equitable, remained in plaintiff after plaintiff conveyed the property to Humphrey, then in that event he alleged the premises to be his homestead, not only up until the time of the deed from plaintiff to Humphrey, but until the present time.\\nTanton acquired the land in 1910. In January, 1921, Tanton's wife divorced him. By warranty deed dated August 20, 1921, filed for record August 29, 1921,. Tanton conveyed the land to R. W. Humphrey. In this deed Tanton is described as a single man of Logan county, Okl., where the deed was executed and acknowledged.\\nOn August 22, 1921, M. W. Stanton filed suit in the Thirty-Fourth district court of El Paso county, against Tanton in the petition averring that Tanton was a nonresident of Texas, residing in Logan county, Okl. In the first count of the petition Stanton claimed ah indebtedness of several thousand dollars due him by Tanton, and also asserted an equitable lien securing the same upon the land now in controversy. He prayed judgment for the debt and that the equitable lien of plaintiff upon the land and premises be found, established, and foreclosed to secure payment of said indebtedness, and for general relief.\\nBy second count, in the alternative, he declared upon a quantum meruit for like amount, and prayed judgment for said debt.\\nAn attachment was issued and levied upon the land August 31, 1921.\\nAt the September term, 1921, judgment was rendered in Stanton's favor. The judgment recited and found due service of process on August 24, 1921, by notice to nonresident, and that defendant had failed to appear and had defaulted. The judgment shows that it was rendered-after hearing the plaintiff's petition read and the evidence adduced. The judgment found and established \\\"in favor of plaintiff, and against the defendant, an indebtedness for the said sum of $5,796.15, together with interest thereon from this date, at the rate of six per cent per annum, and it is by the Court, therefore, further ordered, adjudged and decreed, under the allegations of the petition of plaintiff and evidence, oral and documentary, that the lien of plaintiff securing the payment of said sum, interest and cost of suit, as said lien existed on the 25th day of September A. D. 1917, and upon any date or time since said date, be and the same is hereby found and foreclosed upon that cer tain real estate,\\\" then follows description of land here involved.\\nThen follows also foreclosure of the attachment upon the land; also, direction that order of sale be issued. By sheriff's deed dated November 2, 1921, all of the \\\"right, title and interest which the said Nathan W. Tanton hud on the 25th day of September, A. D. 1917, or at any time afterwards, of, in and to\\\" the land was conveyed to Stanton for the sum of $3,952.52.\\nB.. W. Humphrey died February 27, 1926, and by deed dated February 15, 1928, his heirs reconveyed the land to Tanton.\\nUpon an instructed verdict, judgment was rendered that the plaintiffs take nothing by their suit, and that the defendants go hence without day.\\nWith reference to the deed which he executed to Humphrey on August 20,1921, Tan-ton testified:\\n\\\"When Stanton sued me X went to see a lawyer up there in Oklahoma and did exactly as he told me to. I went to him in Muskogee. He told me to convey the land to Mr. Humphrey -but hold my homestead rights in the property. That is what X did, and that is what I testified to on the previous trial of this case, in substance. I had an agreement with Mr. Humphrey that he would convey the property back to me any time I wanted it. His heirs conveyed the land back to me. I did this an the advice of my lawyer.\\n\\\"That was in Guthrie, Logan County. I had an agreement with Mr. Humphrey when the deed was made that it was not to be a bona fide transaction, I was just placing the title in him to hold for me, and the agreement was that somp time in the future he would return it \\u2014 I never gave up possession of the land. I delivered the deed to him, he sent it here to put on record. I did. not send it. Mr. Humphrey did not pay me anything for the deed. The bank in Oklahoma didn't send the deed nor was it escrowed. It wasn't turned back to me and I haven't testified so in previous litigation. Mr. Humphrey didn't pay me anything for the deed.\\\"\\nIt is well settled in this state that a deed absolute upon its face may be shown by parol to be intended as a trust. The testimony quoted shows that Humphrey held the land in trust for Tanton to be recoveyed upon request. Tanton's testimony shows that the superior equitable title remained in him. This superior title passed, by the foreclosure proceedings, to Stanton if such proceedings are valid.\\nMuch is said by appellants in their brief about the necessity of appellees showing that the deed was in fraud of creditors, and this cannot be done because the land was Tanton's homestead, was exempt as such, and the voluntary conveyance therefore not in fraud of creditors.\\nTanton contends that the land has always been his homestead and, if this be true, then the conveyance to Humphrey was not'in fraud of creditors, and the trust in the land in his favor a valid one. That trust retained in him the superior equitable title to the land which passed to Stanton, and the legal title subsequently acquired by Tanton from the Humphrey heirs is now and always has been subordinate to the equitable title.\\nIf the land was not Tanton's homestead, then the deed was fraudulent and void as to his creditor, Stanton. Tanton's own testimony so shows. Upon this phase of the case we hold that the superior equitable title passed to Stanton by the foreclosure proceedings, if these proceedings were valid, and Tan-ton cannot defeat this equitable title by simply showing that he has reacquired the bare legal title from the heirs of his trustee.\\nPassing now to the foreclosure proceedings, we will first consider the validity of the foreclosure of the so-called equitable lien.\\nThe petition is very lengthy. It was an action for debt amounting to over $5,000, and allegations intended to show an \\\"equitable\\\" lien upon the land, which it was prayed be found, established, and foreclosed to secure the payment of the debt.\\nThe facts alleged in the petition were insufficient to show a lien upon the land, and this feature of the petition was subject to general demurrer. But this does not subject the judgment to collateral impeachment unless the deficiency is one which affects the jurisdiction of the court and deprives it of jurisdiction. 1 Freeman on Judgments (5th Ed.) \\u00a7 365; 1 Black on Judgments (1st Ed.) \\u00a7 269, 34 C. J. p. 554, \\u00a7 852 and p. 560, \\u00a7 860; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838; Pearson v. Lloyd (Tex. Civ. App.) 214 S. W. 759; Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882.\\nThis matter is discussed at some length by Judge Freeman at \\u00a7 365, from which these excerpts are taken:\\n\\\"For jurisdiction does not depend upon the sufficiency or fullness of the statement of the cause of action pleaded, nor is it of any importance collaterally whether the pleading does or does not state a cause of action, providing it- sets forth a case within the court's powers.- If a cause is pleaded belonging to a general class over which the court's authority extends, then jurisdiction attaches and the court has the power to determine whether the pleading is good or bad, and to decide upon its sufficiency as a statement of a cause of action.\\n\\\"It would be difficult to imagine a case in which a court having jurisdiction in other respects could, not render a judgment free from collateral attack, because of defects in or insufficiency of the pleading. A pleading which is adequate in bringing the subject matter before the court may be faulty in many respects, even in its averments of material elements of the cause, and yet sustain the judgment against impeachment.\\\"\\nThis doctrine, of course, has no application to a case in which the judgment is upon a matter not raised by the pleadings. In other words, a judgment without any pleading to support it. 1 Ereeman on Judgments (5th Ed.) 355; Hart v. Hunter, supra.\\nThe petition sought to recover a debt within the jurisdiction of the district court and to foreclose a lien on land. But in this connection appellants assert that under the rulings in' Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770, and Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081, the court had no jurisdiction to foreclose the asserted lien because of the homestead character of the land which was apparent upon the face of the petition.\\nWe think the allegations show that the land was a homestead at the time the lien was attempted to be impressed upon it. In this respect also it was subject to general demurrer. But the petition further shows that Tanton had been previously divorced from his wife.\\n\\\"That said plaintiff further avers that after the appeal aforesaid, and after the writ of error was refused, as aforesaid, the said defendant (referring to Tanton) having long prior thereto abandoned his residence in the County of El Paso and State of Texas, his cross-bill for divorce was dismissed. \\\"\\nThe petition also averred \\\"that said defendant Nathan W. Tanton. resides in town of Guthrie, County of Logan and State of Oklahoma, and is now a non-resident of the State of Texas.\\\"\\nThe plain import of the petition is that the homestead character of the land no longer existed at the time the suit was filed because of abandonment.\\nIn the Higgins and Barnett Cases the homestead character of the land, at the time the lien was attempted to be fixed, and when the foreclosure suits were filed, was apparent upon the face of the. petition, and it was held that for this reason the court had no jurisdiction to foreclose the liens. The defect in the pleadings was jurisdictional.\\nThe present case is more like Gehret v. Hetkes (Tex. Civ. App.) 16 S.W.(2d) 395; Id. (Tex. Com. App.) 36 S.W.(2d) 700, 701. In that case Hetkes obtained a judgment of foreclosure against Gehret and wife upon a paving lien. The Gehrets later sought to enjoin the foreclosure sale upon the ground that the land was their homestead and the judgment void in so far as 'it foreclosed a lien against the property. In denying the relief sought, it was said by the Commission of Appeals:\\n\\\"Neither the petition, citation, nor judgment contains any intimation that the property was Gehret's homestead; it appears from the record itself that the court had jurisdiction of the parties to, and the subject-matter of, the suit. The judgment is therefore not void.\\n\\\"A voidable judgment is one rendered by a court having jurisdiction but which was irregularly and erroneously rendered. Such a judgment is valid until vacated by a direct proceeding instituted for that purpose or until reversed on appeal or writ' of error. Murchison v. White, 54 Tex. 78; Wheeler v. Ahrenbeak, 54 Tex. 535; Odie v. Frost, 59 Tex. 684; Buchanan v. Bilger, 64 Tex. 589.\\n\\\"Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. If the record discloses that the court rendering such judgment was without jurisdiction, the same is void and open to attack in a collateral proceeding; if it does not, the judgment is merely voidable and can be attacked only in a direct proceeding. Morris v. Halbert, 36 Tex. 19; Maury v. Turner (Tex. Com. App.) 244 S. W. 809; Ringgold v. Graham (Tex. Com. App.) 13 S.W.(2d) 355.\\n\\\"Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 55, 803, 53 Am. St. Rep. 770, and Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081, 1082, cited by plaintiffs in error, are not in conflict with the rule announced above. In both those cases want of jurisdiction appeared upon the face of the record.\\n\\\"This is apparent in the quotation from Judge Brown's opinion in the Borddges Case, wherein he said, 'These facts, showing want of jurisdiction of the subject-matter of the suit, appeared upon the face of the record'; and from Judge Kittrell's opinion in the Barnett Case, discussing the question that the petition showed on its face that the property in question was defendant's homestead, wherein he said, 'It is but juggling with words to say that it did not appear in the original suit that foreclosure of the lien was sought against a homestead,' and 'the very terms of the decree itself show that the court was dealing with the property as homestead property.'\\n\\\"It is plain from those quotations that in both said cases the records affirmatively showed the lack of jurisdiction over the subject-matter, whereas here the record in the judgment attacked is silent on the subject of Gehret's homestead claim.\\n\\\"We think that the original judgment is not void, but only voidable at most, and the term of the court at which it was rendered having expired, it could be set aside only by bill of review brought by Gehret and wife. Gross v. McClaran, 8 Tex. 341; McKean v. Ziller, 9 Tex. 58.\\\"\\nIn Nichols v. Dibrell, 61 Tex. 539, Chief Justice Willie said:\\n\\\"The only question then is, Was the homestead right such a defense as might have been put in issue and decided in the former action? \\u215c. \\u215c *\\n\\\"The homestead right is not of a character to make it an exception to the rule we have announced as to the plea of res judicata. It has been frequently attempted in this state to exempt it from the operation of the rule, but it has always been held that when it might h\\u00e1ve been pleaded in the former suit it was too late to set it up in the latter. Thus, where a mortgage has been foreclosed upon the homestead and a second suit has been brought by the purchaser at the mortgage sale, it is held that it is too late to set up the homestead right as a bar to the last action. See authorities already cited.\\\"\\nAnd in Shonaker v. Citizens, etc. (Tex. Civ. App.) 8 S.W.(2d) 566, 568 (writ refused) it was said:\\n\\\"The homestead exemption does not arise as a matter of right, so as to preclude any action against property so impressed upon the mere showing that it is in fact homestead. It is an exemption or right that may he waived at the option of the party entitled to the exemption or right. That being true, it is incumbent upon a party desiring to avail himself of the homestead exemption to plead fully its homestead character, as is held by the authorities last above cited, otherwise he cannot avail himself of such homestead right or exemption.\\\"\\nSee, also, Colwick v. Wright (Tex. Civ. App.) 275 S. W. 152, Sweet v. Lyon, 39 Tex. Civ. App. 450, 88 S. W. 384, and Guarantee, etc., v. Nelson (Tex. Civ. App.) 223 S. W. 543.\\nIn this connection it perhaps should be noted that the petition in the foreclosure suit was not offered in evidence. It was incumbent upon appellants to show that the record in that suit disclosed the homestead character of the land. Otherwise they could not come within the doctrine of the Higgins and Barnett Cases. Gehret v. Hetkes, supra. But appellants' failure to offer such petition in evidence is unimportant in view of the fact that it is pleaded and attached as an exhibit to defendants' answer in this suit. Lalfield v. Maryland C. Co., 119 Tex. 466, 33 S.W. (2d) 187. At any rate, we have looked to the petition as it appears in the clerk's transcript as an exhibit to appellees' answer for the purpose of considering and determining the merits of appellants' contention that the Higgins and Barnett Cases are here applicable. It is only by so doing that we can consider that contention.\\nUpon the authorities cited, we hold that the judgment foreclosing the lien claimed is not impeachable in this collateral proceeding.\\nThe validity of the judgment foreclosing the attachment lien is controlled by other considerations.\\nIn that connection appellants invoke the rule that the foreclosure of an attachment lien does not preclude the later assertion of a homestead estate in the land. This is well settled where the homestead issue was not raised in the attachment suit by the pleadings of either party. Cline v. Niblo, 117 Tex. 474, 8 S.W. (2d) 633, 66 A. L. R. 916.\\nTanton was married three times. The first wife divorced him in 18S6. By her he had one daughter, who married and lived in Oklahoma. This daughter died in the fall of 1921 leaving two children about 12 and 13 years old. The record shows no other children.\\nHis second wife he married in 1911, and he had no children by her. This wife divorced him in January, 1921. Some years later he married the present Mrs. Tanton. He was unmarried during the foreclosure proceedings.\\nWith reference to the right of a divorced man to the homestead exemption when the effect of the divorce is to deprive him of the status of being the head of a family, Chief Justice Gaines, in Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 105, 59 Am. St. Bep. 40, said:\\n\\\"The divorce destroys the particular family, the existence of which gave the right of exemptions; and hence destroys the right of homestead as to that family. Two new families may be created by a divorce dissolving the bonds of matrimony, or they may be created by the subsequent marriage of the parties. Such families would each have a right of exemption, but it proceeds from the existence of the new relation, and not from that of the old. It follows, we think, that if there exists any authority for holding that the exemption passed to the wife in this case, it must be found in the sections of the constitution which are hereinbefore quoted. Section 50 exempts 'the homestead of a family,' and the general rule is, 'no family, no homestead.' Wap. Homest. 71. Section 52 provides for the event of the dissolution of the family by the death either of the husband or wife, but makes no provision for the case of divorce. In neither, therefore, do we find anything to indicate that any exemption in favor of either a divorced wife or a divorced husband was intended to be recognized. The words 'homestead of a family' have a well-defined meaning, and are not open to a construction which would include the homestead of a single person without a family.\\\"\\nIn Jackson v. Jackson (Tex. Civ. App.) 283 S. W. 923, 924, it was said:\\n\\\"If said property was appellant's homestead at the time the divorce was granted, and if said property continued to be homestead property from the date the divorce was granted \\u2014 in other words, if the granting of the divorce did not destroy the family entitled to be protected in the use pf the homestead \\u2014 then appellant's proposition would be correct. Barber v. Barber (Tex. Civ. App.) 223 S. W. 866, and cases there cited. But we think the question sought to be raised here is not involved in this case. There is no evidence that there were any children, the issue of the marriage of appellant and appellee, nor that either of them had any children, the issue of any prior marriage. While appellant and appellee were husband and wife, they constituted a family, and the property involved was exempt to them as a homestead, but immediately on the granting of the divorce dissolving the marriage relation, they, having no children, each became single persons, and neither was entitled to any homestead exemption. Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 59 Am. St. Rep. 40, and cases there cited.\\\"\\nSee, also, Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S. W. 762, and Id. (Tex. Civ. App.) 135 S. W. 185. (Writ refused on second appeal.) '\\nAppellant asserts that under the rulings in Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 35, Dorough v. Panse (Tex. Civ. App.) 24 S.W.(2d) 69, and Central Life Assur. Soc. v. Gray (Tex. Civ. App.) 32 S.W. (2d) 261, Tanton did not lose his homestead exemption upon his^divorce in January, 1921.\\nThe opinion in the Woods Case is by Chief Justice Cureton, and in our opinion it does not overrule the authority of Judge Gaines' opinion in Bahn v. Starcke, upon the present facts. The distinguishing feature of the Woods Case is disclosed in the first paragraph of the opinion. It is as follows:\\n\\\"At the time of the divorce decree the plaintiff in error Woods had two minor children, who, though awarded to their mother, continued to Iwe with him, and for the support of whom, whether living with him or not, he was at all times liable. Plainly he continued to he the head of a family, and as such entitled to all the homestead privileges and rights granted by the Constitution and laws of the state. Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9; Shook v. Shook (Tex. Civ. App.) 145 S. W. 682.\\\" (Italics ours.)\\nLater in the opinion it is expressly recognized that it does not conflict- with the Bahn Case.\\nThe decision in the Woods Case rests upon the fact that, although Woods was divorced, his status as the head of a family was not destroyed because his two minor children continued to live with him and were supported by him.\\nThat was not the case with Tanton. He was about 62 years old when he was divorced in 1921 from his second wife. Tanton testified:\\n\\\"I must have been in Oklahoma at the time of the filing of this suit. I had a telegram saying my daughter was about to die of cancer. That was in 1921 I went to her. My home then was down at Clint on the same property. My daughter was in Colorado and the doctor told 'me I would have to move her back to Guthrie, Oklahoma, which I did. I suppose I was not up there more than a month when I came back here; then my grandson wrote me his mother was worse and I went back and was up there off and on then all the year. My daughter died, leaving two grandchildren.\\n\\\"I went to Oklahoma in 1921 to see my daughter; she was married ; I don't keep up with her husband, I suppose he is living in Oklahoma; one child lives in Mississippi, the other in Colorado; both are married, married since their mother died in 1921.\\\"\\nBy bill of exception it is shown that \\\"while the witness N. W. Tanton was testifying, the plaintiff was questioning said witness about his grandchildren, one of them being fourteen years of age and the other eleven, and the plaintiff offered to prove that said grandchildren were dependent upon the plaintiff for support and that the plaintiff at said time was contributing to their support, and that the mother of said children at said time, to-wit: before the filing of the suit of Stanton .v. Tanton, was on her deathbed, to which said evidence counsel for the defendants objected and the Court sustained said objections, and the plaintiff excepted to said ruling and stated to the Court that plaintiff copld prove and would prove that said grandchildren were being partially supported by plaintiff and that he was at said time contributing to the support of said grandchildren.\\\"\\nThe bill was qualified \\\"with this explanation that neither the said grandchildren nor their mother had ever been in Texas and both of ' the parents were living at the time referred to and the children were with them.\\\"\\nWe do not regard the testimony given or that excluded as sufficient to show that Tanton remained the' head of a family at the time he was divorced in 1921. Tanton's married daughter in Oklahoma, and their children, were the constituent members of another family residing in another state. 29 C. J. 800; Andrews v. Hagadon, 54 Tex. 571; Roco v. Green, 50 Tex. 483; Davis v. Cuthbertson (Tex. Civ. App.) 45 S. W. 426; Hammond v. Pickett (Tex. Civ. App.) 158 S. W. 174.\\nCentral Life Assifr. Soc. v. Gray, supra, is no more in point upon the issue of the homestead exemption after the divorce than is Woods v. Alvara'do State Bank, upon which it is based, but Dorough v. Panse, supra, by the Sixth Court of Civil Appeals, supports the view that the homestead remained exempt after the divorce, although Tanton ceased to be the head of a family when the divorce was granted. The Woods Case is cited by that court in support of such ruling.\\nSo far as we are advised, no writ of error was applied for in the Dorough Case.\\nIt may be that the Woods Case sup-' ports the ruling that was made in the Dor-o'ugh Case. But it is the imperative duty of this court to follow the rulings of the Supreme Court until such rulings are by that court expressly or by necessary implication overruled or limited.\\nIn the Woods Case Chief Justice Cureton .expressly recognized that the Bahn Case decided a different question. Bahn v. Starcke has not been expressly overruled, nor, as we view it, is that the necessary inference to be drawn from the Woods Case.\\nThe Bahn Case was decided 35 years ago. It has been followed in other cases and frequently cited. It announced a property rule. In this connection we quote the distinguished Chief Justice Gaines again. In Whitmire v. May, 96 Tex. 317, 72 S. W. 375, he said:\\n\\\"The Court of Civil Appeals held that the case was ruled iby the decision in Buchanan v. Monroe, 22 Tex. 537. There it was decided that where a mortgagor has sold the mortgaged premises, and the purchaser has died before foreclosure, the power of sale given in the mortgage is revoked, so long as an administration is pending. When we granted the writ, we concurred in the view that Buchanan v. Monroe was decisive of the question, but we are not inclined to follow that ruling! So far as we have been enabled to- discover, although that case was decided more than 40 years ago, the precise point has never been again presented to this court. The case has, however, been frequently cited, and always with approval. If it were an original question, we should be inclined to hold that the death of a purchaser of property subject to a mortgage with a power of sale neither revokes nor suspends the power, but that the trustee may proceed to sell in the same manner as if the death had not occurred. But in view of the long lapse of time since Buchanan v. Monroe was decided, and of the fact that it has never been overruled or questioned, we feel constrained to hold that it has become an inflexible rule of property, which it is the duty of the courts in this state to uphold. The rule is unsatisfactory to us,' for the reason that it seems unjust that the mortgagor, by a sale of the property, 'should have the power to put the mortgagee in a position where his rights may become impaired by the death of the purchaser.\\\"\\nSo now we follow Bahn v. Starcke, because in our opinion the doctrine of that case applies in view of Tanton's divorce, leaving him without a family of which he remained the head.\\nIt is, of course, within the province of the Supreme Court to apply the ruling in the Woods Case to the present case, but we do not think this court can rightfully do so.\\nIt is insisted appellees cannot assert their equitable title until they have first set aside the deed from Tanton to Humphrey and their right so to do is barred Iby the four-year statute of limitations. This is untenable, and the cases cited in this connection have no application. Appellees here are the defendants and have acquired the equitable title, which is superior to the legal title. It is an equitable title as distinguished from a mere equitable right of rescission or cancellation.\\nIf Humphrey had sued Tanton for the land, the latter could have defended by showing that Humphrey held the land in trust for him. Appellees have succeeded to this title and right of Tanton, for it is well settled that an equitable title as distinguished from a mere equitable right is sufficient to support the action of trespass to try title. See cases cited in 16 Michie Digest 608. And under their plea of not guilty appellees could prove the superior equitable title vested in them. Article 7373 Vernon's1 Ann. Statutes and cases cited in Note 6.\\nWhat has been said directly or by necessary inference disposes of all questions raised by appellants.\\nSince ^we are of the opinion that the superior equitable title passed to Stanton by the foreclosure proceedings, it becomes unnecessary to consider the defenses of res judicata and estoppel set up by appellees arising out of the pleadings and judgment in the former suit of Tanton v. State National Bank (Tex. Civ. App.) 277 S. W. 449, independent executor of the estate of M. W. Stanton, deceased, in which Tanton unsuccessfully attempted to set aside the judgment of foreclosure and sheriff's deed under which appellees claim. See Tanton v. State National Bank, Executor (Tex. Civ. App.) 277 S. W. 449.\\nAffirmed.\"}"

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+"{\"id\": \"10280999\", \"name\": \"BARROW v. BOYLES et al.\", \"name_abbreviation\": \"Barrow v. Boyles\", \"decision_date\": \"1929-06-20\", \"docket_number\": \"No. 9275\", \"first_page\": \"716\", \"last_page\": \"720\", \"citations\": \"21 S.W.2d 716\", \"volume\": \"21\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:40:08.553345+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BARROW v. BOYLES et al.\", \"head_matter\": \"BARROW v. BOYLES et al.\\n(No. 9275.)\\nCourt of Civil Appeals of Texas. Galveston.\\nJune 20, 1929.\\nRehearing Denied Oct. 17, 1929.\\nNiday & Carothers and R. H. Ward, all of Houston, for appellant.\\nBaker, Botts, Parker & Garwood, O. L. Carter, and S. H. German, all of Houston, for ap-pellee Texas Co.\\nHunt, Moseley & Hunt, of Houston, for ap-pellees East Texas Oil Oo. and HaYris County Land & Improvement Co.\\nA. J. DeLange,' of Houston, for appellees McKnight.\\nJ. E. Walton,, of Houston, for appellees Guinn and others.\\nK. C. Barkley, of Houston, for appellees Garrett and others.\\nW. P. Hamblen, of Houston, for appellees Collins and others.\\nJ. W. Lockett, of Houston, for appellees Stewart and others.\\nFulbright, Crooker & Freeman, of Houston, for appellees Hornberger and others.\", \"word_count\": \"3776\", \"char_count\": \"21646\", \"text\": \"PLEASANTS, C. J.\\nThis is a suit for mandamus brought by appellant against J. S. Boyles, county surveyor of Harris county, to compel him to make a survey of land in that county claimed by appellant to be public land set apart to the permanent free school fund of the state, and for which appellant had filed application for purchase under the terms and provisions of article 5323, Rev. St. 1925. The suit was brought under the second section of this article of the statute.\\nThe defendant Boyles impleaded a number of persons, appellees herein, who were in possession of the land, claiming title thereto under a grant from the State of Ooahuila and Texas made to the Mexican citizen Victor Blanco, in 1831.\\nThe application for purchase was made by Victor Blanco in 1828 and was for eleven sitios or leagues of land. This application was approved by the Governor on October 25, 1828, and the title to him from the State of Coahuila and. Texas was extended on June 1, 1831.\\nPlaintiff's petition,' which is necessarily lengthy, sets out in full copies of all of the documents and records evidencing the grant to Victor Blanco under which the impleaded defendants claim title, and alleges that the defendants are claiming title \\\"under purported conveyance in regular chain under said purported Victor Blanco grant.\\\"\\nThe defendant Boyles in his answer admitted the truth of the allegations of the petition showing compliance by plaintiff with all. of the requirements of the statute in the matter of his application for the purchase of the land and as to the title claimed by defendants being under the grant to Victor Blanco from the State of Ooahuila and Texas, and averred that he refused to make the survey because the Commissioner of the General Land Office declined to recognize the land as vacant and unappropriated public land and declined to authorize a survey thereof, and because the impleaded defendants were claiming title to the land; the nature of such respective claims and the acreage claimed by each being unknown to this defendant. He further averred that he was willing to make the survey and return the field notes thereof to the General Land Office in event the court should hold that the land is unappropriated public domain and a part of the public school lands of the state.\\nThe other defendants answered by general demurrer, and by special exceptions and pleas the nature of which, in view of the ruling of the trial court on the general demurrer, need not be stated.\\nThe trial court sustained the defendants' general demurrer, and^the plaintiff declining to amend, his suit was dismissed.\\nWe deem it unnecessary to set out in detail the several propositions upon which appellant contends that the judgment of the trial court sustaining the general demurrer to his position should be reversed.\\nHis main contention is that the grant to Victor Blanco by the State of Ooahuila and Texas was void, because the land thereby granted was situated within the ten littoral leagues bordering on the coast of the Gulf of Mexico, and the grant was not issued with the consent or knowledge of the President of the government of the Mexican nation.\\nThe decision of the question presented by this contention is not necessary in determining the disposition of this appeal. The holdings of the Supreme Court of the United States and the Supreme Court of Texas upon the question are conflicting.\\nIn the cases of Wilcox v. Chambers, 26 Tex. 181, Cowan v. Williams, 49 Tex. 380, and Wood v. Welder, 42 Tex. 396, it is held, following earlier decisions of the Supreme Court of this state, that the consent of the Federal Executive of Mexico was essential to the validity of a grant of land within the littoral or border leagues, whether the grant was to a foreigner or to a Mexican citizen.\\nThe Supreme Court of the United States in the case of De Arguello v. United States, 18 How. 539, 15 L. Ed. 478, in an exhaustive and able opinion, construes the Mexican laws at the time in question as not requiring the consent of the Mexican President to a grant of public land within the littoral or border leagues, when such grant is made to a Mexican citizen and not for settlement by foreign immigrants. This decision was followed by the Supreme Court of this state in the c\\u00e1se of Cavazos v. Trevino, 35 Tex. 133, but that court in the later case of Wood v. Welder, supra, returned to its holding in the earlier cases.\\nIn the Chambers Case, supra, Judge Bell, who wrote the opinion, while feeling constrained to follow the earlier decision on the question, with his usual force and clearness expressed his opinion that the former decisions were unsound, and that the Mexican laws at the time this grant was made should not be construed as requiring the consent of the Mexican President to a grant by a state of its public lands within the littoral or border leagues when such grant was made to a Mexican citizen.\\nThe writer fully agrees with Judge Bell in the conclusions expressed by him, nor does he think that the question as here presented should be controlled by the rule stare decisis. But, as before said, we are not required to decide the question, since in our opinion the judgment must be affirmed, it matters not how this Question is decided.\\nThe statute under which the suit was brought should not be construed as authorizing a suit by a private citizen to recover for the state land occupied by persons claiming adversely to the state under a grant from a former sovereignty of the soil issued nearly 100 years ago, which is not void upon its face, and the validity of which has never been assailed or questioned by the state, but has been during all these years, and is now, recognized by the General Band Office of the state. Such a suit can only be brought by the Attorney General under article 5420, Rev. St. 1925.\\nIt seems to us that to construe the statute as authorizing this suit by appellant would make the legislative law thereby enacted so unreasonable as to largely excuse if not justify the impressive declaration of Mr. Bumble in Oliver Twist that \\\"the law is a 'ass.\\\" We think the reasonable construction of section 2 of article 5323 is that the Legislature by its enactment only intended to give a private citizen the right to compel the survey of land claimed to be not included in any prior grant by the state or former sovereignty of the soil. The statute only authorizes the bringing of the suit when there is doubt \\\"as to the existence of the area\\\" as public school land. This language indicates the intention of the Legislature to only give the right when there is a claim of vacancy between former grants.\\nThe following correct history of this legislation is copied from appellees' brief:\\n\\\"This section was first incorporated in our laws as a part of section 7, chapter 163, Acts of 1919, approved April 3, 1919, and was in the form of an amendment to article 5432, of the Revised Statutes of 1911. In the statutes of 1911 this article is captioned 'Unsurveyed or Scrap Lands.' This article had prior to that time been section 8 of chapter 103 of the Acts of 1905, approved April 15, 1905. This section in the Act of 1905 took the place of section 6 in. chapter 11 of the Act approved February 23,1900 (Acts 1st Called Bess. 26th Leg.) which section was amended by the Act approved April 15, 1901 (Acts 1901, c. 88, \\u00a7 1).\\n\\\"It will be seen that article 5323 is really old section 6 of the Act of February 23, 1900, as amended, with what is now section 2 of this article with reference to suits to require survey added thereto. In other respects the article is substantially the same as original section 6 of the act of 1900.\\n\\\"Section 'S of the act of 1900 (Acts 1st Called Sess. 26th Leg. c. 11), provided that where any public land or lands belonging to any vendee of the State were held, occupied or claimed by any one adverse to the State or such vendee, it should be the duty of the Attorney General to institute suit therefor! This section became article 5468 of the Revised Statutes of 1911 and is now article 5420 of the 1925 statutes, which is as follows: 'When any public lands are held, occupied or claimed by any person, association or corporation adversely to the State, or to any fund, or when lands are forfeited to the State for any cause, the Attorney General shall institute suit therefor, together for rent thereon, and for any damages thereto. For the purposes of this and the preceding article, venue is fixed in Travis County, concurrently with the county of defendant's residence and the county where the land lies.' \\\"\\nIn the case of Juencke v. Terrell, 98 Tex. 237, 82 S. W. 1025, 1026, the plaintiff brought suit in the Supreme Court for mandamus to compel the Commissioner of the General Land Office to file plaintiff's application to purchase land in Liberty county claimed by him to be public school land. The Commissioner refused to file the application on the ground that the land sought to be purchased \\\"was in conflict with a prior and incomplete\\\" grant to P. P. Devers. In refusing the mandamus the Supreme \\u00a1Court says:\\n\\\"The present Constitution contains this provision: 'All genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under col- or of title from the sovereignty of the state, evidence of the appropriation of which, is on the county records or in the general land office; or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him.' Const. art. 14, | 2. This provision does not prohibit the Legislature from .providing for the. sale of such lands; but it very clearly evinces the policy of the state not to encourage litigation by permitting the acquisition from the .state of lands which appear upon the official records, or by actual occupancy to be claimed adversely to it. It should not lightly be assumed that the Legislature intended to depart from that -policy.\\n\\\"Our conclusion is that section 6 of the act under construction applied only to such lands as appeared upon the maps and records of the General' Land Office not to be claimed by other parties, and to such .as had been adjudged to the state, if ever so claimed.\\\"\\nIt should be borne in mind that the statute referred to in this opinion is identical with article 5323 of our present statute, with the addition of section 2 of that article.\\nThe holding in the Juencke Case was approved and followed in the case of Southern Pine Lumber Company v. Consolidated Lumber Company (C. C. A.) 217 F. 719, in which it was held that the Commissioner of the Gen eral Land Office was not authorized to place upon the market as public land any land which appeared to have been previously granted until the invalidity of such prior grant had been shown and the land recovered by the state in a suit brought by the Attorney General.\\nA similar holding was made by our Supreme Court in the case of Fitzgerald v. Robison, 110 Tex. 468, 220 S. W. 768, 769, in which it is said: \\\"If the particular land has been wrongfully patented, and it is rightfully a part of the public domain, the remedy of the State is an action in the District Court prosecuted by the Attorney General.\\\"\\nIt would be a strained and unreasonable construction of section 2 of article 5323 to hold that the Legislature intend.ed to give a private citizen the right to a mandamus against the surveyor of the county in which the land was situated to compel a survey of land which the Commissioner under the decisions just cited had rightly refused to place upon the market because it was covered by a prior grant, the invalidity of which had not been established by a suit - brought by the only officer of the state authorized to bring such suit.\\nThere is nothing in the language of the statute to compel such holding, and in the absence of such plain and compelling language the courts will not conclude that the Legislature intended, in the language of the decisions before cited, to \\\"turn loose a flood of litigation between purchasers and adverse claimants of the land.\\\"\\nIt is immaterial to the application of the rulings in these eases that the gz'ant to Victor Blanco may not be of record in 'the General Land Office, or have been properly authenticated for record. The existence of such grant and the claim of appellees thereunder and their adverse occupation of the land under such claim are shown by the allegations of plaintiff's petition to be known to the Commissioner, and his refusal to place the land on the market is alleged to be based on his knowledge of such grant and the adverse claim and occupancy of the land thereunder.\\nThat the state could stand by for 100 years and .acquiesce in the purchase and occupancy by its citizens of land claimed under title issued by the former sovereignty of the soil, and, as may be reasonably inferred from the allegations of the pleadings, collect taxes on tho land during all these years from its claimants and occupants, and after this lapse of time be allowed to assert title to the land and dispossess those who have purchased on the faith of this acquiescence, is a proposition so unjust and inequitable that no court of equity should entertain it even in favor of sovereignty.\\nBut if the question could be raised by general demurrer, we are not required to hold the state is estopped from asserting title to this land, because we think the Legislature of the state by the Act of February 5,1850, validated the Victor Blanco grant. This act contains the following provisions:\\n\\\"Section 1. Be it enacted by the Legislature of the State of Texas, that no certificate of land, land warrant or evidence of land claim of any kind whatever, shall hereafter be located upon any land heretofore titled or surveyed within the limits of the colonies of Austin, De Witt 'and De Leon, and the Commissioner of the General Land Office is hereby prohibited from hereafter issuing a patent on any location hereafter made for any of the lands described in this act; and should any patent be hereafter issued for the same, or a part thereof, contrary to the provisions of this act, the same shall be null and void.\\n\\\"See. 2. Be it furthef enacted that this act shall take effect and be in force from and after its passage.\\\" 3 Gammel's Laws, 556.\\nThe court will take judicial knowledge of the fact that the grant involved in this suit was within the boundaries of Austin's Colony.\\nThis act by its terms withdrew from appropriation all \\\"titled\\\" or \\\"surveyed\\\" lands within the named colonies. That the purpose of the act was to quiet and validate land titles in these colonies is, we think, clear, and it has been so construed by our Supreme Court in the following cases: Truehart v. Babcock, 51 Tex. 169; Summers v. Davis, 49 Tex. 541; Westrope v. Chambers, 51 Tex. 178; Winsor v. O'Connor, 69 Tex. 571, 8 S. W. 519.\\nThe two cases first cited also held that the words \\\"titled\\\" or \\\"surveyed\\\" lands means as well lands held under a grant void because subsequently annulled or because not issued with the consent of the Mexican Federal Executive, as those held under a subsisting valid grant. In the first case cited it is said:\\n\\\"As held by this court in Summers v. Davis, 49 Tex. 541, the object of this statute, and that of the act of 1856 (General Laws, 4th Leg., adjourned session, p. 59) was undoubtedly to quiet land titles in the colonies named, and would even include a title which, by the decree of the ayuntamiento, had been annulled, and which was 'to be regarded as though it had never had an existence.'\\n\\\"That this land had been 'titled or surveyed,' is not questioned; but the old grant to Miguel Muldoon is claimed to have been null and void because within. the littoral leagues, and had never been approved by the Federal Executive of Mexico. The title under which plaintiff claims was subsequent to the act of February 5, 1850. The Legislature, by the express terms of this act, prohibited such subsequent locations in most emphatic language, and declared them null and void', without any limitation, exception, or reservation as to the validity of subsisting prior grants. Should the courts ingraft exceptions upon a statute thus intended to quiet titles, they would encourage that litigation which it was the very obvious intention of the Legislature to pi-event.\\\"\\nThis act is almost identical with an act of the Congress of the United States passed in 1S07 prohibiting the location of bounty warrants within the Virginia Military District, and in construing our statute our Supreme Court followed the decision of the Supreme Court of the United States construing the similar act of Congress.. Galloway v. Finley, 37 U. S. (12 Pet.) 264, 9 L. Ed. 1079; McArthur v. Dun, 48 U. S. (7 How.) 262, 12 L. Ed. 693.\\nWhile a repeal of the act of 1850 could not affect a title vested thereunder, there has been no direct repeal of the act, and no repeal can be implied from the failure to include the act in subsequent revisions of our statutes. The act is clearly a local law, its application being confined to territorial limits embracing a comparatively small portion of the state. Vincent v. State (Tex. Com. App.) 235 S. W. 1084; Commissioners Court v. Garrett (Tex. Com. App.) 236 S. W. 970: R. C. L. p. 874.\\nThe purpose of each and all of the revisions of our statutes has been \\\"to revise, simplify, and consolidate all general laws into a compact form,\\\" and none of these revisions has ever carried forward special or local laws, but on the contrary the acts adopting these revisions each expi'essly provides that no gen-ei-al or special law theretofore enacted validating any act or proceeding whatever are affected by the repealing clause of the act adopting the report of the Commission of Revision, but that all such validating statutes shall 'continue in force, and that no local or private law shall be affected by the repealing clause of the adopting act. There can, under these provisions of the statute, be no question of the repeal of the act of 1S50 before referred to, and our construction of this act being that it validated the Victor Blanco grant under which appellees hold title, the trial court correctly sustained the general demurrer to plaintiff's petition.\\nFor the reasons indicated, the judgment must be affirmed, and it has been so ordered.\\nAffirmed.\"}"

tex/10285679.json

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+"{\"id\": \"10285679\", \"name\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\", \"name_abbreviation\": \"Texas Power & Light Co. v. Hill\", \"decision_date\": \"1930-04-23\", \"docket_number\": \"No. 7438\", \"first_page\": \"842\", \"last_page\": \"844\", \"citations\": \"27 S.W.2d 842\", \"volume\": \"27\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:03:28.706575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\", \"head_matter\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\\nNo. 7438.\\nCourt of Civil Appeals of Texas. Austin.\\nApril 23, 1930.\\nRehearing Denied May 14, 1930.\\nHart, Patterson & Hart, of Austin, for appellant.\\nR. B. Thrasher, of Austin, for appellees.\", \"word_count\": \"1620\", \"char_count\": \"9241\", \"text\": \"BLAIR, J.\\nThis appeal is from a judgment for $723.25 for damages in a condemnation proceeding, wherein appellant condemned a 50-foot right of way or easement across two tracts of land owned by appellees, one containing 68 and the other 99 acres, upon which to erect and maintain its high power electric transmission line. With respect to the character and purpose of the right of way or easement, the court instructed the jury as follows: \\\"That the essential elements of the right-of-way or easement consists of plaintiff's right to place and maintain its poles in and upon the land and to string or attach wires thereto and over the land, with the right to prohibit the erection of buildings and structures that will interfere with or endanger said transmission line, and to control all growth over 15 feet in height, that will endanger said transmission line, other than ordinary farm crops, on or within a space bounded by a line 25 feet on each side of and parallel to the center of the transmission line; and the right of ingress and egress to and from and over the strip of land described for the purpose of operating and maintaining said transmission line, but with no right to occupy any part of the surface of the land described, except the portion occupied by the poles and that-portion necessary for ingress and egress in operating and maintaining the transmission line, and the right of defendants, P. W. Hill and wife, to use and pasture the above described land and to cultivate the same in ordinary farm crops, except in so far as the property is employed by plaintiff as above detailed is not interfered with by the condemnation.\\\"\\nThe jury were further instructed that the measure of damages was the difference be tween tlie fair and reasonable market value of the strip of land taken for the easement, less its reasonable market value subject to the easement defined. \\\"Market value\\\" was defined and the following question propounded: \\\"What was the market value of the land of defendants actually appropriated by plaintiff for the erection and maintenance of its transmission line at the time of the erection of such line?\\\"\\nThe jury answered the question, \\\"$175.00 per acre.\\\" Appellant made no objection to the charge or the manner in which the issue of damages was submitted. It was agreed that there were 2.99 acres of land in the 50-foot strip condemned for the easement, and upon the jury's above answer, judgment was for appellee for $523.25. On motion for a new trial appellant objected to this judgment, because the land \\\"actually appropriated\\\" was not sufficient at $175 per acre to authorize the judgment for $523.25, it being contended that the land \\\"actually appropriated\\\" did not exceed 10 square feet around each pole. The contention is not sustained. The jury were instructed as above shown that the only land actually taken was that \\\"occupied\\\" by the poles. The charge further specifically described the character and purpose of the right of way or easement sought to be obtained by appellant. The jury were instructed that the measure of the damages resulting to ap-pellees for this 50-foot strip for such right of way or easement purpose was the difference between its reasonable fair market value, less the reasonable fair market value of the strip after the use and occupancy by appellant as defined. The measure of damages as provided by article 3265, subds. 1 and 3, is the difference between the market value of the land immediately before and immediately after its appropriation for the purpose for which it is condemned; and, in effect, the jury so understood the charge and arrived at a fair and reasonable amount of damages as disclosed by the evidence. This conclusion is sustained by the case of Tex. Power & Light Co. v. Jones (Tex. Civ. App.) 293 S. W. 886 (writ of error refused).\\nAppellant insists that the recent ease of Tex. Electric Service Co. v. Perkins (Tex. Civ. App.) 24 S.W.(2d) 320, is conclusive of the proposition urged that the jury were instructed that all of the 2.99-aere strip was actually appropriated. The jury were not so instructed in the sense that the entire strip was actually taken, but the easement or right of way sought to be condemned was specifically defined to them by the court's charge. We think that the rule laid down in that case as Well as the charge and rule announced by this court in the case of Tex. Public Utility Co. v. Bass (Tex. Civ. App.) 297 S. W. 301, were observed by the trial court in submitting this case. If appellant had desired the jury to find as to the value of the land \\\"actually taken\\\" or occupied by the poles, it should have requested the court to have submitted the issue separately. Not having done so, we see no reason why the question submitted did not include all damages to the 50-foot strip of land condemned for right of way, and it is clear that it did include all elements of damages at issue. Tex. Electric Service Co. v. Wells (Tex. Civ. App.) 8 S.W.(2d) 707.\\nOver appellant's objection witness Robert Comer was permitted 'to testify as follows: \\\"I also talked with J. W. Maxwell in regard to this matter. I told Mr. Maxwell that I hoped Mr. Hill would recover every cent he was asking for, because I knew that he (Hill) was a man that would not ask for anything to which he was not entitled.\\\" This was objected to on the ground that it was improper, uncalled for, and created a sympathy for Mr. Hill and bolstered him up as being honest and fair before the jury, and that same was immaterial. The record shows that the testimony was brought out on cross-examination and as testing the credibility of the witness. But, if the evidence was inadmissible for the reasons stated, its admission was harmless, as appears from the record. The only effect such evidence could have had was to increase the judgment in favor of the appellees, and to cause the jury to believe the testimony of Mr. Hill. The evidence is undisputed that Mr. Hill testified that his damages resulting from the condemnation of the 50-foot strip was more than, twice what the jury awardeij him. Several disinterested witnesses testified to much larger damages than found by the jury. Therefore the jury were not influenced by such testimony.\\nAppellant further contends that the judgment is erroneous because the trial court refused to strike out of appellees' petition the allegation that the land in controversy, because of its proximity to the city of Austin, was suitable to be cut up in acre blocks or tracts, and therefore more valuable than ordinary farm land. As we interpret appellant's objection, it seems that it was upon the ground that the allegation did not state \\\"when (appellant) intended to use the land for such purpose or to subdivide the same,\\\" and that therefore appellees would be allowed to recover speculative or future damages. The petition simply alleged that the land was suitable for the purpose of being cut up in acre or smaller blocks and was valuable for that purpose at the time of the condemnation. The case was tried upon the theory that the land at present was suitable for that purpose and therefore had a much greater value than ordinary farm land, due to the fact that it fronted upon a well improved public highway, and the further fact of its being situated near to the city of Austin.\\nThe rule is well settled that in estimating damages in cases of this character, the value of the land for any purpose for which it is adapted may be considered. Tex. Power & Light Co. v. Jones, supra; Perry v. Ry. Co. (Tex. Civ. App.) 238 S. W. 276; Penn. S. V. Ry. Co. v. Cleary, 125 Pa. 442, 17 A. 468, 11 Am. St. Rep. 913; Routh v. Tex. Traction Co. (Tex. Civ. App.) 148 S. W. 1152. Of course, these last three cases cited by appellant also hold that it is not competent for the owner of land to show that he intended to make some particular use of the property in the future and recover damages based thereupon, because same would be speculative; but in this case all of the witnesses testified that appellees' land was particularly adapted at the time it was condemned for being cut up into town lots or acre tracts, and that its value when so cut tip ranged from $500 to $1,0001 per acre. And all witnesses testified that the 50-foot strip was damaged more than one-half its value by reason of the easement.\\nThe jury allowed $200 for injury to the remainder of the land by reason of the manner in which the electric company's line was placed across same, cutting off in one corner a small strip of land. No complaint is made with respect to this in any particular, except as to the sufficiency of the evidence to sustain the damages. The evidence fully sustains the finding of the jury in this respect.\\nAppellant presents some fifty assignments of error, upon which he predicates thirty propositions, which in the main raise the questions heretofore discussed. We have carefully examined all of them, and find them to be without merit, and affirm the judgment of- the trial court.\\nAffirmed.\"}"

tex/10309658.json

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+"{\"id\": \"10309658\", \"name\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY\", \"name_abbreviation\": \"St. Louis Southwestern Ry. Co. of Texas v. Weatherly\", \"decision_date\": \"1926-11-05\", \"docket_number\": \"No. 3274\", \"first_page\": \"524\", \"last_page\": \"525\", \"citations\": \"288 S.W. 524\", \"volume\": \"288\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:23:07.556663+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY.\", \"head_matter\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY.\\n(No. 3274.)\\n(Court of Civil Appeals of Texas. Texarkana.\\nNov. 5, 1926.\\nRehearing Denied Nov. 18, 1926.)\\nBryan Marsh and Marsh & Mcllwaine, all of Tyler, for appellant.\\nEdwards & Hughes, of Tyler, for appellee.\", \"word_count\": \"471\", \"char_count\": \"2635\", \"text\": \"PER CURIAM.\\nI. The appeal is from an order granting a motion for a new trial. The plaintiff sued for personal injury alleged to have been caused by the negligence of the defendant. The case was submitted to the jury on special issues. The jury answered that (1) the defendant was guilty of negligence in each of the four distinctive grounds inquired about, but (2) neither one of the four grounds of negligence was \\\"a proximate cause of Weatherly's injury,\\\" and (3) the plaintiff was guilty of contributory negligence diminishing the amount of damages by one-half. In keeping with the verdict, the court entered a judgment in favor of the defendant. The plaintiff filed a motion for a new trial in due time, and the court granted it for the reasons therein recited, to wit:\\n\\\"First. Because the answers of the jury to questions numbers 3, 7, 10, and 14, as- contained in the verdict, are in conflict with their answers to question No. 15 in the verdict.\\n\\\"Second. Assuming the facts to be as found by the jury in its answers to questions 1, 2, 4, 5, 6, 8, 9, 11, 12, 13 (referring to negligence), the answers of the jury to questions 3, 7, 10, and 14 (referring to proximate cause) are not supported by the testimony.\\n\\\"Third. Because from the evidence introduced on the motion for a new trial it clearly appears that the verdict of the jury as contained in its answers and questions 3, 7, 10, and 14 does not express the actual findings of the jury on said issues.\\\"\\n2. It is concluded that the first and third grounds stated above were not sufficient legal reasons to grant the new trial, for it is plain from the evidence that the answers of the jury to questions 3, 7, 10, and 14 were not pure errors in writing, but resulted from a misinterpretation of tbe term \\\"proximate cause.\\\" Tbe second ground or reason was clearly witbin tbe authority of tbe court. Tbe court reasonably meant to say and to bold that tbe answers of tbe jury relating to \\\"proximate cause\\\" were \\\"not supported by tbe testimony\\\" produced on tbe trial. It is generally beld that, if after a consideration of all tbe evidence tbe trial court is of tbe opinion that tbe verdict of tbe jury is contrary to the evidence, or tbe weight of tbe evidence, or not sustained by sufficient evidence, be is authorized to set aside tbe verdict and grant a new trial. Therefore tbe order of the court is affirmed.\"}"

tex/10313286.json

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+"{\"id\": \"10313286\", \"name\": \"PRUETT et al. v. FORTENBERRY\", \"name_abbreviation\": \"Pruett v. Fortenberry\", \"decision_date\": \"1923-06-28\", \"docket_number\": \"No. 8504\", \"first_page\": \"592\", \"last_page\": \"594\", \"citations\": \"254 S.W. 592\", \"volume\": \"254\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:18:35.949925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PRUETT et al. v. FORTENBERRY.\", \"head_matter\": \"PRUETT et al. v. FORTENBERRY.\\n(No. 8504.)\\n(Court of Civil Appeals of Texas. Galveston.\\nJune 28, 1923.)\\n1. Receivers <&wkey;l82 \\u2014 Must file bond on petition for injunction.\\nRev. St. 1911, art. 4654, requiring a complainant, except the state, to file a bond on petition for injunction, is mandatory, and makes no exception in favor of receivers, and it was error to grant a temporary injunction on application of receiver without a bond.\\n2. Corporations <&wkey;>559(6) \\u2014 Actions pending against corporation not suspended by appointment of receiver for it.\\nThe appointment, of a receiver for a corporation does not abate or suspend the prosecution of an action pending against it at the time of the appointment.\\n3. Injunction <&wkey;26(6) \\u2014 Against prosecution of action against corporation pending in another eourt when receiver appointed until he could prepare defense held improperly granted.\\nAn injunction against the further prosecution of an action in another court against a corporation when a receiver was appointed until the receiver could prepare a defense thereto, since it is not the province of a court to control the disposition of another court\\u2019s business, was improperly granted; the proper procedure being for the receiver to apply to the court in which the case was pending for a continuance or postponement as under Rev. St. 1911, art. 2146, he could be made party to such action.\\n4. Receivers &wkey;>78 \\u2014 After appointment of receiver for corporation, its property is in cus-todia legis, and not subject to sale under execution.\\nWhere, after a sheriff levied on property of a corporation, a receiver was appointed, the property was in custodia legis, and not subject to sale under execution, and the court, being justified in believing that the sheriff claimed possession of the property as against the receiver, and that he would after -such sale assert title in the purchaser, properly restrained the sale.\\n5. Appeal and error &wkey;>I 139 \\u2014 Bond for temporary injunction permitted to be filed in appellate court.\\nWhere a temporary injunction was granted without the filing of the bond required by Rev. St. 1911, art. 4654, the decree will be conditionally affirmed with the proviso that the bond be filed in the amount fixed by the Court of Civil Appeals within, 15 days, payable and conditioned as required by law.\\nAppeal from District Court, Harris County; J. D. Harvey, Judge.\\nSuit by C. I. B\\u2019ortenberry, receiver, against Price Pruett and others. From a decree for plaintiff, defendants appeal.\\nDecree reformed and conditionally affirmed.\\nWoods, King & John, of Houston, for appellants.\\nRoss & Wood, of Houston, for appellee.\", \"word_count\": \"2400\", \"char_count\": \"14174\", \"text\": \"GRAVES, J.\\nIn response to the bill of Fortenberry, receiver of the Home Laundry, a corporation, praying for such relief, the court below, upon an ex parte hearing, and without requiring the receiver to give any bond, directed the issuance of a temporary injunction restraining Price Pruett and others in two respects:\\n(1) Prom selling under execution on a judgment against W. T. Terry foreclosing a chattel mortgage thereon certain machinery alleged to be in the receiver's possession. -(2) In the language of the order, \\\"and from proceeding further, or taking any action or step under said execution or order of sale; and enjoining said Price Pruett, his agents and attorneys, from prosecuting or proceeding further with that certain suit in the district court of Harris county, Tex., Eleventh judicial district of Texas, No. 104255, entitled Price Pruett v. Home Laundry, and purporting to be based upon a note, deed of trust, and chattel mortgage, alleged to have been executed by said the Home Laundry. It is further ordered that thjs order and injunction shall remain in full force and effect until otherwise ordered by the court.\\\"\\nOf this decree Pruett and his codefend-ants in the trial court complain in the capacity of appellants here against the plaintiff below as appellee.\\n' What is deemed a sufficient r\\u00e9sum\\u00e9 of the material avernlents of the application-, upon consideration of which the writ as outlined issued, is this:\\nW. T. Terry had bought the machinery referred to from the Troy Laundry, giving it in security for. unpaid purchase money a chattel mortgage thereon, which had been foreclosed in a judgment in its favor for the debt against him, the amount unpaid on the judgment at the time the execution or order of sale thereunder issued \\u2014 that is, the one herein enjoined \\u2014 being $1,681.83, appellant Pruett having bought and being then the owner thereof; this judgment and foreclosure had been entered in the Eightieth district court prior to the appointment of the receiver here involved by the same court in a different proceeding but the corporation he subsequently represented was never in any way made a party thereto, and Terry, the defendant in that judgment, had before its rendition sold and transferred the machinery to the Home Laundry, in whose plant it was located, constituting its main dependence, 'and being necessary to the' operation thereof at the time Pruett, by virtue of the judgment referred to, levied an execution thereon and caused the same to be.advertised for sale thereunder.\\nThe suit No. 104255 in the Eleventh district court, Price Pruett v. Home Laundry, the bill .at length charged, was one appellant Pruett had, likewise prior to the appointment by the Eightieth district court of this receiver, filed against the Home Laundry upon a purported note for. $18,000 ostensibly secured by a deed of trust on its lots and laundry plant located thereon, as well as by a chattel mortgage on some machinery in the plant, all alleged by Pruett to have been executed in his favor by it, but none of which instruments in fact represented its acts or obligations, in that the $18,000 note so declared upon was never signed by it, and was purely the individual debt of W. T. Terry; further, that Pruett had, contemporaneously with the filing of this No. 104255, instituted still another suit against the laundry corporation in the Eleventh district court, to wit, No. 104252 therein, whereby he sought to foreclose three vendor's lien notes against it he had as late as February 3, 1923, acquired from the Goose Creek Realty Company, and that he was prosecuting these two suits in the Eleventh district court and the order of sale' out of the Eightieth district court at the same time in order to so paralyze the Home Laundry that it could neither make in such cause No. 104255 the valid defense it had on account of never having, executed the $18,000 note nor procure money or security wherewith to protect itself in the other two suits, and up-less restrained he would accomplish that objective, since the receiver ha.d only been appointed as such on May 14, 1923, whereas the execution sale had been advertised for May 16, 1923, and the suit on the $1S,000 note in the Eleventh district court was then on- the eve of trial, so that he had no time to prepare his above-mentioned defense thereto. The usual representations as to irreparable loss and the lack of adequate remedy at law were added.\\nIn setting out .that the execution had been levied on machinery indispensable to the operation of the laundry on May 5, 1923, and the sale thereof advertised to take place on May 16, 1923, the specific averment appears:\\n\\\"That the said sheriff, in levying said writ, claims to have levied same upon the personal property and taken possession thereof, and this petitioner believes that, if a sale be made of the said machinery, the said sheriff will attempt to put the purchaser thereof in possession of said machinery, and petitioner is informed and believes and charges upon such information and belief that the said Pruett is insisting on the enforcement of said writ and sale of said personal property, and insisting that the said sale will pass title to the said property.\\\"\\nThe prayer concluding the bill was as follows:\\n\\\"Petitioner prays that notice of this application be given to the said Price Pruett and to T. A. Binford, sheriff of Harris county, Tex., in his capacity as such sheriff, and that on a hearing hereof a temporary injunction or restraining order issue, restraining said Price Pruett and the s,aid sheriff from making a sale of the said property under the said judgment, and from attempting to sell the same, and that said Price Pruett be further restrained from immediate prosecution of the said suit in the said district court of Harris county. Eleventh judicial district of Texas, upon said, alleged $18,000 note, until this petitioner shall have opportunity to prepare a defense against the same, and that upon a final hearing hereof the said injunction against the sale of the said property under the said judgment be perpetually enjoined, and that said Price Pruett be required to seek his relief and his remedy for the collection of said judgment indebtedness through this receivership, and petitioner prays for such other and further orders as may be necessary or proper in the premises and for all general and special relief, both legal and equitable.\\\"\\nOur conclusions upon the record so presented here are: (1) The trial court erred in not requiring a bond from the appellee; (2) the writ issued was improvidently awarded in so far as it attempted to enjoin the prosecution of the suit in the Eleventh district court, but properly restrained the selling of the machinery under the execution.\\nOur statute providing for bond in injunction proceedings (article 4654, Revised Statutes) makes no exception in favor of receivers, and has been held to be mandatory. Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 431; H. I. & B. Co. v. Clint (Tex. Civ. App.) 159 S. W. 409, writ of error refused.\\nAfter admitting that, prior to his appointment as its receiver, his corporation had been duly served in suit No. 104255 in the Eleventh district court, and was therefore properly subject to the jurisdiction thereof, the sole ground the appellee advanced as a basis for asking the Eightieth court to stop by injunction the further prosecution of that litigation, and thereby ' control the action of another court of co-ordinate power in a matter touching which its jurisdiction had first attached, was that he had no time to prepare and present his, defense therein; that but amounted to applying to one district court for a continuance or postponement of a cause properly in another merely on the claim that one of the litigants did not have sufficient time within which to present his defense. It should have been addressed to the court in which the cause was pending. The appointment of a receiver for a- corporation does not abate or suspend the prosecution to judgment of actions pending against it at the time of the appointment (8 A. L. R. Annotated, 443, two pending actions), and under our statute (article 2146) this receiver might have become or been made a party to the cause in the Eleventh district court; at any rate, it was not the province of a sister court to so control the disposition of another's business.\\nAs concerns the other feature of the writ granted, however, a different situation is presented and a different rule applies. The order of sale had issued out of the same court, the property to which it related was then in the receiver's possession \\u2014 in other words in custodia legis \\u2014 and neither its possessor nor his predecessor, the corporation itself, had ever been a party to the suit out of which the process issued. The court below was authorized to -conclude, in response to the applicant's allegations to that effect and our statutory requirements with reference to the ad interim possession of personal property levied on and ordered sold under execution, that appellant Pruett, through the sheriff, was not only then claiming to have actual possession of the machinery as against the receiver, but that if not restrained he would, after such advertised sale, further assert that the title to it was in the purchaser thereof, and that the sheriff must so deliver it; in other words, there was enough before the court to justify it in finding that appellant's alleged acts constituted an interference with its own control of the property through the receivership.\\nWhere property is thus in custodia legis, the settled rule in Texas seems to be that it is not subject to levy and sale under execution. In Ellis v. Water Co., 86 Tex., at page 114, 23 S. W. 861, our Supreme Court says:\\n\\\"It is well established, we think, that after property has been placed in the hands of the receiver, it is not subject to levy and sale under execution. Being in the custody of the law, through the.appointment of a receiver by a court of competent jurisdiction, it cannot be interfered with by process from another court.\\\"\\nAnd again on page 115, of 86 Tex., on page 862 of 23 S. W., the court declares:\\n\\\"To permit the control of a receiver to be interfered with by virtue of process from another court would be a practice fraught with injustice and productive of confusion; and the remark applies with especial force to the receivers of insolvent corporations.\\\"\\nTo the same effect are the cases of H. I. & B. Co. v. Clint, supra, Wiswall v. Sampson, 14 How. 52, 14 L. Ed. 322, and Scott v. Crawford, 16 Tex. Civ. App. 477, 41 S. W. 697; sales of the property under such circumstances being held to be void and to pass no title.\\nUnder the conclusions stated, bond should be required of the receiver, and no restraint of the action of the Eleventh district court should be attempted. The order appealed from will therefore be so modified here as to eliminate the above quoted (2) provision thereof relating to cause No. 104255 in the Eleventh district court, and as so reformed will be affirmed,' provided the appellee, within 15 days from this date, files with and secures approval by the clerk of the court below a bond for $500 payable and conditioned as required by law. Water Co. v. Water & Light Co. (Tex. Civ. App.) 132 S. W. 868; Oil Lease & Royalty Syndicate v. Beeler (Tex. Civ. App.) 217 S. W. 1054.\\nReformed and conditionally affirmed.\\nigd^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"

tex/10317224.json

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+"{\"id\": \"10317224\", \"name\": \"BALDWIN v. STATE\", \"name_abbreviation\": \"Baldwin v. State\", \"decision_date\": \"1917-10-31\", \"docket_number\": \"No. 4608\", \"first_page\": \"305\", \"last_page\": \"307\", \"citations\": \"198 S.W. 305\", \"volume\": \"198\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:51:42.730973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BALDWIN v. STATE.\", \"head_matter\": \"BALDWIN v. STATE.\\n(No. 4608.)\\n(Court of Criminal Appeals of Texas.\\nOct. 31, 1917.)\\n1. Indictment and Information <\\u00a7=3110(51) \\u2014Following Language oe Statute \\u2014 Pandering.\\nIn a prosecution under Vernon\\u2019s Ann. Pen. Code 1916, art. 506a, as to pandering, an indictment charging that defendant did unlawfully procure, and was connected in procuring, with her consent, a female inmate named for a house of prostitution followed fully tho language prescribing offense and was sufficient.\\n2. Prostitution @=4 \\u2014 Pandering \\u2014 Evidence\\u2014 Sufficiency.\\nThe evidence was sufficient to establish defendant\\u2019s guilt.\\nAppeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.\\nHenry Baldwin was convicted of pandering, and appeals.\\nAffirmed.\\nE. B. Hendricks, Asst. Atty. Gen., for the State.\", \"word_count\": \"2202\", \"char_count\": \"11823\", \"text\": \"PRENDERGAST, J.\\nAppellant was in-dieted and convicted of the offense of pandering.\\nThe indictment, after the usual allegations of the proper organization of the grand jury, alleged that appellant, on July 30, 1916, \\\"did unlawfully procure, and was concerned in procuring, with her consent, a female inmate, to wit, Agnes Yarbrough, for a house of prostitution.\\\" There were other counts of the indictment, but as this alone was submitted, it is unnecessary to state the others.\\nThe statute prescribing this offense (article 506a, 1 Vernon's Crim. Stats., Acts 1911, p. 29) enumerates quite a number of differ-. ent acts in the alternative, all with the same penalty, prescribing how this offense may be committed. It is unnecessary to quote the whole article. We will quote the one under which this prosecution was had.- It is:\\n\\\"Any person who shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, \\\" shall be guilty of pandering, etc.\\nIt will be noticed that the indictment herein. follows completely, in alleging the acts constituting the offense, the language of this statute. Appellant made a motion to quash this count on the ground .that by a fair construction of the words used it appears that Agnes Yarbrough was already an inmate of a house of prostitution, and that it would be impossible to procure her as an inmate for such house, and that it is at best paradoxical, and does not charge in plain and intelligible language any offense known to the law, and that in order to constitute a good pleading the state should have alleged by appropriate averment that defendant \\\"procured, and was concerned in procuring, a female person, to wit: Agnes Yarbrough, as an inmate for a house of prostitution.\\\" None of appellant's contentions can be sustained. As stated, the averment in the indictment follows fully the language prescribing the offense, and it-has been held, under this statute, that when this is the case the indictment is sufficient. Jones v. State, 72 Tex. Cr. R. 500, 162 S. W. 1142; Clark v. State, 76 Tex. Cr. R. 350, 174 S. W. 354, and cases there cited; section 344, White's Ann. C. C. P., and cases there cited.\\nAgnes Yarbrough, a young woman, testified that in the latter part of July, 1916, she lived at Elam, out in the country with her parents; that she had been married, but was then separated from her husband. She further testified:\\n\\\"I first met Mr. Baldwin when I went up there one night to his place to get a room. I just came to town to do some trading, and just thought I would get a room to spend the night. I just saw where it said 'Hotel' and went up and got a room. That was the first time I had ever met the proprietor of that rooming house. This defendant is the man from whom I rented a room. I rented a room from him for the purpose of staying all night. It was about an hour after I rented the room when the defendant came, and talked to me. He asked me if I didn't want to stay up there, and said I could make lots of money, and said it was a good place, and I could make good money, and I asked him how, and he says, 'Standing men,' and I says that was-something I never did and never had done. I had never stayed with any man except my husband. ' Mr. Baldwin told me what to say to the men, and he would show me to the man, and then toid me what to say to him and what to do, and everything about staying with them. He said not to let a man go down the steps if he offered me $2, and if I did let him go down the steps he got awful mad. That was afterwards. Mr. Baldwin brought me the first man that I stayed with in that house. He brought me about four or five men that night. I stayed with each of them. By that I mean I had carnal knowledge of them. I charged them for it; they paid me $2 apiece, and I gave the defendant a dollar; Mr. Baldwin charged me $3.50 a week room rent. I stayed there from the latter part of July up until some time in November, and then I got burned and went home. For every man that stayed with me from that night on, I gave Mr. Baldwin a dollar.\\\"\\nShe further testified that while staying in said house and plying her vocation other women, she naming several, during said time, also came to said house and plied their vocation of prostitution, and for each man they stayed with they would give appellant a dollar each time. They had no connection with her, and came at different times from the time she was induced to stay there. She further swore that while there whenever she fined a date with a man she got $2 for it and paid Baldwin $1 and kept $1, \\\"except that one time he told me to go and stay with a man for $1.25, and he took the dollar and left me the quarter.\\\" It was proven that appellant had run said house for some 3 years before this prosecution was begun, and that it was a rooming house or hotel over the Stag saloon in Dallas.\\nThe state proved by Mr. Parsons, a police officer of Dallas, that he knew the general reputation of that house as a house of prostitution, and that that reputation of it was bad.\\nW. E. Powell testified that he knew appellant and the house he kept, and that he knew said witness Agnes Yarbrough, and had known her for a long time; that while Agnes Yarbrough was in that house he was up there twice and talked to her, and that while he was there the second time he saw a man come in and speak to appellant and then went back and talked to Agnes, and the man then went in a room and stayed with her about 30 minutes; that when she came out she went and paid appellant some money.\\nGrace Rogers testified she was 20 years old, knew appellant and where his house was situated; that she went up there in March, 1916, and lived up there some time; that she left there some two or three weeks before appellant was arrested in this case; that while there she had sexual intercourse with various men, and received money therefor; that she paid part of the money to appellant and kept some of the money herself.\\nNeta Underwood, a young woman, testified that she knew appellant and where his place was; that she had been there many times; that he asked said witness Agnes her phone number, which she told him, and that he invited her up there, stating he had a proposition to make to her; that she went up there, and \\\"he told me I could work for my room rent, and every time I went to a room with a man I would have to pay $1, and the man would pay me $2; I mean I would have intercourse with a man for $2, and then would give Mr. Baldwin $1. I gave that money to Mr. Baldwin.\\\"\\nJewel Franklin, a young woman, testified that she knew appellant and. his place, and went to his place in 1916, and \\\"I was at his place between three and four weeks.\\\" She testified:\\n\\\"I had a conversation with defendant when I went there. I went there some time in November of 1916, last year. He told me to get two dollars, and give him one and keep one; that was for trick money. I stayed there about three weeks, I think. When I turned a trick I gave up part of the money and kept' part. I gave part to Mr. Baldwin; I gave him his part and kept my own. I did that for every trick I turned. I gave him his trick money, his part. I call this trick money \\u2014 $2, $1 for me and one for him; trick money is money that you get when you turn a trick with a man.\\\"\\nThe full testimony of none of these witnesses is given because deemed unnecessary. In their further direct, cross, and redirect testimony much other evidence was given by them tending to establish the same facts where their testimony is quoted above.\\nAppellant and his wife both testified and denied that they kept said house as a house of prostitution, and all knowledge of the women who stayed there as plying their vocations. He also introduced several witnesses who testified to his good reputation as a peaceable, law-abiding man.\\nThe state, in rebuttal, introduced Mr. J. J. Smith, a farmer who lived at Lancaster, in Dallas county, who testified that he knew appellant and where his said place was located; that he had been there twice; that the first time he went there he got a room from appellant himself, and when he registered he asked him if there were any girls up there, and -he replied the girls were out; that he went up to bed and stayed there that night. That he-was there again in October or November, 19X6, and said:\\n'.T stayed with a woman there then; I stayed with Agnes, who is out here in the witness room. The defendant Baldwin was in the house at that time; that was in the afternoon. I paid the woman for it.\\\"\\nOn cross-examination he testified that:\\nWhen he went there the second trip, in October or November, \\\"that was the time I stayed with the woman; I went up there that time in the afternoon about 2 or 2:30 o'clock. Mr. Baldwin was in there at that time, but I never said anything to him, but I just went on and made arrangements and told her what I wanted, and we went in the room; Baldwin was up in the hall when I went in the room; Baldwin was at the head of the stairs, or something like the head of the stairs, and I walked on by him.\\\"\\nA. W. Mosier testified that he lived at Hutchins, in Dallas county, all his life; that he had seen appellant and knew where his place was, and had been up there; that Joe Lee Chilton, who also lives at Hutchins, went up there with him. He said:\\n\\\"We went up there at night. I saw Mr. Baldwin when I first got up there. We sat down there in the hall. We saw Grace, this girl out here; she was lying on the bed. I sat down there in the hall, and Grace came in the hall to where I was. Then Mr. Baldwin went back to the back end. Then Grace came in there; nobody else came in; no other girl came in. Yes, Agnes came in there; she came after Mr. Baldwin left. Then I went to the room with Agnes. Joe Lee Chilton went out with Grace. I paid for it.\\\"\\nOn cross-examination he further swore that he saw said Chilton go in a room with a woman; that Chilton went in one room, and he, witness, went in another; that he paid the girl he went in the room with $3 hut he did not know what she did with it.\\nUndoubtedly the testimony clearly establishes appellant's guilt under the law.\\nThe court gave some of appellant's specially requested charges, and in his main charge copied and gave substantially another or others requested by appellant. Upon the whole, the charge the court gave was full, complete, and apt, correctly laying down the law and submitting every issue that was raised by the testimony.\\nAppellant has several bills of exceptions in the record, but they were all filed too late to be considered; hence the Assistant Attorney General's motion to strike them out and not consider them must be sustained.\\nThe ease seems to have been well tried on both sides, appellant had a fair and impartial trial, and there is no reversible error presented that would authorize this court to reverse the judgment. It will therefore be affirmed.\\n\\u00aer=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '\"}"

tex/10317340.json

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+"{\"id\": \"10317340\", \"name\": \"METTS et ux. v. WAITS\", \"name_abbreviation\": \"Metts v. Waits\", \"decision_date\": \"1926-06-30\", \"docket_number\": \"No. 6996\", \"first_page\": \"923\", \"last_page\": \"925\", \"citations\": \"286 S.W. 923\", \"volume\": \"286\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:33:38.156486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"METTS et ux. v. WAITS.\", \"head_matter\": \"METTS et ux. v. WAITS.\\n(No. 6996.)\\n(Court of Civil Appeals of Texas. Austin.\\nJune 30, 1926.\\nRehearing Denied Oct. 4, 1926.)\\nJenkins, Miller & Harris, of Brownwood, for appellants.\\nW. Marcus Weatherred, of Coleman, for appellee.\", \"word_count\": \"1643\", \"char_count\": \"9366\", \"text\": \"BAUGH, J.\\nThe controlling issue in this case is whether the trial court erred in sustaining appellee's exception to appellants' motion for a new trial. Other questions are raised, but we deem this issue determinative of this appeal. We .copy in part the statement of the ease made in appellee's brief as follows:\\n\\\"This suit was filed by appellee, J. W. Waits, against appellants, A. E. Metts and Ethel Metts, on December 24, 1923, for the amount due on a note for $1,000, signed by appellants, dated September 19, 1923, payable to Coleman National Bank on November 1, 1923, secured by deed of trust on certain property in Brown county, Texas, of said date, which note and deed of trust were duly indorsed and transferred to appellee by said Coleman National Bank. Defendants answered by general demurrer, general denial, and by plea that the property covered by said trust deed was homestead of defendants.\\n\\\"Trial was had before a jury, and the court instructed a verdict in favor of appellee for the sum, of $487, and a finding that said deed of trust was a valid lien, which was duly returned, and upon which judgment was entered in favor of appellee on June 19, 1925. On August 21, 1925, appellants filed motion for new trial, to which appellee filed his answer and exception, because judgment was rendered on June 19, 1925, and said motion for new trial was not filed within two days as required by law, but was filed on August 21, 1925, more than two months after judgment was rendered, which exception was by the court sustained, and said motion overruled.\\\"\\nThe original motion for a new trial was filed on August 18,1925, and the amended motion three days later. The trial court having refused to hear evidence on said motion, and having sustained appellee's exception thereto, we will accept as true the allegations made in said motion, except where the record discloses the contrary.\\nIt is well settled that the statute, requiring motions for new trials and in arrest of judgment (article 2232, R. S. 1925) to be filed within two days after rendition of the verdict, is directory only, and that it is within the sound discretion of the trial court to pass upon motions filed more than two days thereafter. Head v. Altman (Tex. Civ. App.) 159 S. W. 135; First Nat. Bank of Fort Worth v. Henwood (Tex. Civ. App.) 183 S. W. 5; Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75. And in such case the discretion of the trial court is not arbitrary, but will be reviewed on appeal, where abused. Insurance Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109; Hubb-Diggs Co. v. Mitchell (Tex. Civ. App.) 231 S. W. 425; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279. But, where such motion is filed after the time fixed by said . statute, it is incumbent upon the party making same, not only to absolve himself from negligence for failure to file same sooner, but also to show that he had a meritorious defense, which, without fault on his part, he was deprived of on the trial of the cause. Monarch Pet. Co. v. Jones (Tex. Civ. App.) 232 S. W. 1116; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230; Holliday v. Holliday, 72 Tex. 585, 10 S. W. 690; El Paso & S. W. Ry. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660. And as stated in the case last cited:\\n\\\"If, however, the showing be made that the party applying for the relief was not in fault in failing to file his answer, nor in failing to file the motion within the time allowed by law, then the rights of the parties are the same as if the motion had been filed in time.\\\"\\nThe motion of appellants sets forth meritorious defenses, which it is obvious from-the record appellants were not permitted to present on the trial, and which, if proven, would have defeated appellee's suit \\u2014 defenses which, under the law, they were entitled to make and to have submitted to a jury. Hence the only question here presented is whether appellants have excused themselves of negligence in their failure to have their case properly presented on the trial, and for their delay in filing their motion for a new trial. We have reached the conclusion, that, upon the grounds set forth in their motion, accepted as true, they have sufficiently done so. These grounds, as alleged, are substantially as follows:\\nThat before appearance day in said case appellants employed Hon. Walter C. Woodward to represent them; that he appeared and secured continuance of said case at the January and June terms, 1924, of said court; that prior to the January term, 1925, of said court, he advised them that, because of his duties as state senator and other pressing matters, he could not represent them further; that they thereupon employed Garland Woodward and Rawlins Gilliland, who filed an answer in January, 1925, at which time said case was again continued because of sickness in appellants' family; that just a few days before the beginning of the June term, 1925, being the next term of said court, and at which term the case was tried, the said Garland Woodward moved away from Coleman and withdrew from the defense for that reason; that the said Gilliland, who had just been appointed to succeed Garland Woodward as county attorney, withdrew from the defense because of the duties of that office; that appellants then sought to employ .Critz & Woodward, and were advised by them, about the time court convened, that, due to a crowded docket, they could not represent appellants; that court convened on June 15th, and between that date and the date of the trial, June 19th, appellants were constantly in attendance upon the court, for fear said ease would be called for trial, ap-pellee having notified them that he would demand a trial; and that during that time they had consulted every other attorney known to them residing in Coleman, and sought to. employ counsel to represent them on the trial, but that, due to the lack of time to prepare for trial and the complicated character of appellants' defenses, none of said attorneys were willing to take their case; that, not knowing how to apply for a continuance and thinking they had to go to trial, they did so without counsel to represent them; that immediately after said trial appellants sought to employ Dib-rell & Snodgrass, and were told by J. B. Dibrell that he would have his partner, Scott Snodgrass, look into the matter and advise them later; that appellants then returned to their home at Bangs, in Brown county, Tex., where A. E. Metts became ill and was confined to his bed for several days, but that the appellant Ethel Metts returned to Coleman to confer with Dibrell & Shodgrass, and was told by them that they could not represent her; that, having sought unsuccessfully to employ counsel in Coleman, she did not have time nor opportunity to go elsewhere and employ counsel; and that after A. E. Metts recovered from his sickness he used reasonable diligence to secure attorneys and file his motion for a new trial. Appellants also set forth in their motion that they were ignorant of their rights tc a continuance, knew nothing about court procedure, nor how to conduct their own trial, and present their defenses, and that by reason of all of which they have not had their day in court, represented by counsel, and have been deprived of valuable rights as a result.\\nThe right of a party to be represented on the trial of his cause by counsel of his own selection, familiar with his case, is a valuable right, and the unwarranted denial of it is reversible error. Farmers' Gas Co. v. Calame (Tex. Civ. App.) 262 S. W. 548, and numerous authorities there cited. It is true that in the case cited appellant had able counsel, and asked for a continuance because he was unable to be present. In the case at bar, appellants had had counsel, who, through no fault of theirs, had withdrawn from the case immediately before court convened. They appear to have done all they could, under the circumstances, to secure other attorneys, and, having failed to do so, thought they had to submit to trial. They were to all intents and purposes deprived of representation by counsel. It is also obvious, from the record, that they were not permitted to present the defenses as set forth in the answer filed by their .counsel before withdrawing from the case. Appellee contends that the record shows appellants' plea of homestead to be without merit; but that is not the only defense to appellee's suit set forth in appellants' motion. Nor is it clear that appellants were permitted to offer any evidence on this defense.\\nTrue that appellants were late in fil- \\u00edng their motion, but it was filed and acted upon at the same term at which the case was tried. They could have exercised more diligence in procuring counsel and filing such motion sooner, but we think they have excused themselves for not filing it within the two days after trial as required by law. Under all the circumstances, we think they have sufficiently excused themselves for failure to act promptly, and have shown that they did not have a fair trial.\\nThe judgment of the trial court is therefore reversed and the cause remanded for 'another trial.\\nReversed and remanded.\"}"

tex/10336309.json

@@ -0,0 +1 @@
+"{\"id\": \"10336309\", \"name\": \"Oat BURDICK v. STATE\", \"name_abbreviation\": \"Burdick v. State\", \"decision_date\": \"1925-05-27\", \"docket_number\": \"No. 9493\", \"first_page\": \"1115\", \"last_page\": \"1115\", \"citations\": \"272 S.W. 1115\", \"volume\": \"272\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:18:39.913121+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oat BURDICK v. STATE.\", \"head_matter\": \"Oat BURDICK v. STATE.\\n(No. 9493.)\\n(Court of Criminal Appeals of Texas.\\nMay 27, 1925.)\\nAppeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.\\nMays & Mays and Dave Miller, all of Fort Worth, for appellant. Tom Garrard, State\\u2019s Atty., and Grover C. Morris, Asst. State\\u2019s Atty., both of Austin, for the State.\", \"word_count\": \"96\", \"char_count\": \"609\", \"text\": \"HAWKINS, J.\\nConviction is for possessing equipment for the manufacture of intoxicating liquor. Punishment, one year in the penitentiary. The record contains neither bills of exception nor statement of facts. Nothing is presented to this court for review. The judgment is affirmed.\"}"

tex/11139990.json

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+"{\"id\": \"11139990\", \"name\": \"In the Interest of C.S., A Child\", \"name_abbreviation\": \"In the Interest of C.S.\", \"decision_date\": \"2000-12-28\", \"docket_number\": \"No. 01-99-01473-CV\", \"first_page\": \"656\", \"last_page\": \"658\", \"citations\": \"36 S.W.3d 656\", \"volume\": \"36\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:03:51.268483+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices O\\u2019CONNOR, HEDGES, and PRICE.\", \"parties\": \"In the Interest of C.S., A Child.\", \"head_matter\": \"In the Interest of C.S., A Child.\\nNo. 01-99-01473-CV.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nDec. 28, 2000.\\nGeorge Anthony Young, Houston, for Appellant.\\nCarol M. Cameron, John B. Holmes, Houston, for Appellee.\\nPanel consists of Justices O\\u2019CONNOR, HEDGES, and PRICE.\\nThe Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.\", \"word_count\": \"814\", \"char_count\": \"4706\", \"text\": \"OPINION\\nO'CONNOR, Justice.\\nC.S., a juvenile and the appellant here, was tried before a master of the juvenile court, who made a finding that the appellant had engaged in delinquent conduct. The master recommended the appellant be committed to the Texas Youth Commission. The juvenile court judge signed a judgment to that effect.\\nOn appeal, the appellant contends a master must comply with Texas Family Code section 54.10, which requires a referee to inform juveniles that they are entitled to a hearing before the juvenile court judge. We agree, and reverse and remand.\\nFactual Background\\nOn May 4, 1999, C.S. was charged with misdemeanor assault for biting another child. The trial court found C.S. engaged in delinquent conduct and assessed punishment of probation for one year. He was placed at the Burnett Bayland Reception Center (BBRC). On August 31, 1999, C.S. was involved in an altercation with another child at BBRC, namely, grabbing and choking him. The State filed a motion to revoke probation.\\nA hearing was conducted on the motion to revoke, where Robert Molder was the master. He admonished C.S. that he had \\\"a right to have a hearing at this trial before the Court.\\\" C.S. made no objection to the master proceeding, and did not sign a written waiver of the right to have the trial before the juvenile judge. Master Molder found the appellant had engaged in delinquent conduct and recommended the appellant be committed to the Texas Youth Commission. The juvenile court judge signed a judgment to that effect.\\nDiscussion\\nIn issue one, C.S. contends the master did not inform him of his right to have the hearing before the juvenile court judge and did not obtain a signed waiver from both C.S. and his attorney of the right to have the case heard by the judge in accordance with Family Code section 54.10(a). In issue two, C.S. asserts Pat Shelton, the judge of the 313th District Court of Harris County, Texas, erred in approving the master's recommendation.\\nIssue one can be divided into two parts. One, was the information provided by the master sufficient to apprise the appellant that he had a right to a hearing before the juvenile court judge? Two, did the master comply with the provisions of Texas Family Code section 54.10(a)(2)?\\n1. Notice of right to hearing\\nThe first part of issue one requires us to determine if the master informed the appellant he had a right to a hearing before the juvenile court judge. The notice of a right to a hearing before a juvenile court judge applies to the statute both before and after the 1999 amendments. The master told C.S., 'You have a right to have a hearing at this trial before the court, but not before the jury.\\\" That was the only information provided to C.S. concerning a hearing before a juvenile court judge.\\nThis statement was not sufficient to inform the appellant he had a right to have the hearing before the juvenile court judge. It does not inform C.S. that Robert Molder was merely a master and not a juvenile court judge, or that he would make findings and recommendations to the juvenile court judge. Section 54.10(a)(1) specifically requires the juvenile be informed of his right to have his hearing conducted before the \\\"juvenile court judge,\\\" not the \\\"court.\\\" It is unclear as to what the master meant by the \\\"court.\\\" As far as C.S. was concerned, they were in the \\\"court\\\" when the statement was made. It is clear from the record that although C.S. was informed of his right to have the hearing before the \\\"court,\\\" he was not specifically informed, as required by Section 54.10(a)(1), of his right to have the hearing before the \\\"juvenile court judge.\\\"\\nAt a minimum, to comply with Section 54.10(a)(1), the master or referee must inform the juvenile that (1) he is entitled to have a hearing before the juvenile court judge, and (2) the referee or master is not a juvenile court judge.\\nWe find the appellant was not informed of his right to have a hearing before the. juvenile court judge. We sustain part one of the appellant's issue one and decline to address the remaining issues.\\nWe reverse the judgment of the trial court and remand this case for further proceedings consistent with the opinion of this Court.\\n. C.S. was removed from his home because he has no father of record and his mother is incarcerated.\"}"

tex/11185956.json

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+"{\"id\": \"11185956\", \"name\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS' COMPENSATION INSURANCE FACILITY, Appellee\", \"name_abbreviation\": \"Mel Handling Equipment Co. v. Texas Workers' Compensation Insurance Facility\", \"decision_date\": \"2000-06-15\", \"docket_number\": \"No. 03-99-00839-CV\", \"first_page\": \"60\", \"last_page\": \"66\", \"citations\": \"26 S.W.3d 60\", \"volume\": \"26\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:25:15.019329+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justices KIDD, B.A. SMITH and POWERS.\", \"parties\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS\\u2019 COMPENSATION INSURANCE FACILITY, Appellee.\", \"head_matter\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS\\u2019 COMPENSATION INSURANCE FACILITY, Appellee.\\nNo. 03-99-00839-CV.\\nCourt of Appeals of Texas, Austin.\\nJune 15, 2000.\\nRehearing Overruled Sept. 21, 2000.\\nCharles M. Wilson, III, Dallas, for Appellant.\\nDonald M. Barnett, Reyes Law Firm, Austin, for Appellee.\\nBefore Justices KIDD, B.A. SMITH and POWERS.\\nBefore John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov\\u2019t Code Ann. \\u00a7 74.003(b) (West 1998).\", \"word_count\": \"2922\", \"char_count\": \"19091\", \"text\": \"JOHN E. POWERS, Justice (Retired).\\nThe Texas Workers' Compensation Insurance Facility (the \\\"Facility\\\") recovered summary judgment against Mel Handling Equipment Company, Inc. (the \\\"Company\\\") in the amount of $6,271.36, representing disputed premiums claimed by the Facility under a workers' compensation insurance policy, together with $1,567.84 in attorney's fees and additional sums for interest. The Company appeals. We will reverse the summary judgment and remand the cause to the trial court.\\nTHE CONTROVERSY\\nThe Company purchased from the Texas Workers' Compensation Assigned Risk Pool (the \\\"Pool\\\") a policy of workers' compensation insurance covering the period November 30, 1990, to November 30, 1991. The policy showed a \\\"total Estimated Premium\\\" of $9,353 for the one-year policy. After paying an initial \\\"Deposit Premium\\\" of $2,402, the Company paid additional sums monthly over the life of the policy; the additional monthly payments included adjustments for actual payroll fluctuations during the policy year.\\nAt the end of the one-year period, the Facility, as successor to the Pool, demanded of the Company an additional premium equal to $7,166.87. The additional premium resulted from the Facility's retrospective application of an \\\"experience modifier\\\" and a \\\"tabular surcharge.\\\" The experience modifier resulted from the Company's expected loss rate during the life of the policy, based on the Company's actual loss experience during a time period preceding November 30, 1990, the effective date of the policy. The tabular surcharge was an accompanying charge that resulted automatically from imposition of the experience modifier under an official handbook and table that evidently governed the Facility's operations.\\nThe Company declined to pay the additional $7,166.87 based upon a statement in a binder issued by the Pool, in advance of the policy, which declared that \\\"[n]o Modifier and No Surcharge Will Apply, Subject to Change on Anniversary Rate Date.\\\" Contending the statement was not controlling, the Facility sued the Company in the present cause and recovered the summary judgment from which the Company appeals. The Company contends the Facility was not entitled to judgment as a matter of law under the summary judgment record.\\nTHE SUMMARY JUDGMENT RECORD\\nThe Binder\\nOn December 6, 1990, the Pool issued to the Company a \\\"Binder for Workers' Compensation Insurance\\\" signed by the Pool's general manager. The binder states that it is effective November 30, 1990, that the \\\"Binder shall end\\\" 30 days thereafter, and that \\\"[t]his undertaking will be evidenced by a policy contract to be issued by\\\" Employers Casualty Company \\\"as the servicing company\\\" for the policy. The binder directs Employers Casualty Company to\\nissue the policy with the following special instructions and optional coverages:\\nAll insured entities listed below: Mel Handling Equipment Co., Inc.\\nThis Risk has been Switched to the Servicing Company Shown Above.\\nThe Reporting Basis will be Monthly.\\nNo Modifier and No Surcharge will Apply, Subject to Change on Anniversary Rate Date.\\nProvide Elected Coverage for Proprietors, Partners, Officers.\\nEstimated Annual Premium: $9,353.\\nEnclosures: Application: Deposit Check $2,402.\\n(Emphasis added.)\\nThe Application\\nThe application consists of four pages and bears the heading \\\"Application for Workers' Compensation Insurance \\u2014 The Texas Workers' Compensation Assigned Risk Pool.\\\" The application is signed by Milligan F. Sherard, as president of the Company, and dated by him December 27, 1990. The following statement is found in the application, in capital letters, immediately below the heading:\\nIMPORTANT NOTICE \\u2014 PLEASE READ BEFORE MAKING APPLICATION\\nIT IS IN APPLICANT'S BEST INTEREST TO EXHAUST ALL EFFORTS TO OBTAIN . INSURANCE IN THE PRIVATE MARKET BEFORE MAKING APPLICATION TO THE POOL SINCE HIGHER PREMIUMS MAY RESULT THROUGH POOL SURCHARGES UP TO 50% OF STANDARD PREMIUMS. NO PREMIUM DISCOUNT PAID ON POOL POLICIES.\\nThe application states that the \\\"Total Estimated Annual Premium\\\" is $9,353, payable as follows: a $2,402 \\\"Deposit Premium\\\" and eleven monthly installments thereafter. The Company agrees in the application \\\"[t]o pay as due all monies for premiums under such policy to the Servicing Company,\\\" Employers Casualty Company in this instance, and \\\"[t]hat no insurance coverage will be considered bound by the Pool until [the Company] has received a binder duly executed by the General Manager of the Pool and such insurance shall become effective only from the date . specified by the Pool Manager.\\\"\\nToni Palermo, the Company's insurance agent or \\\"producer of record,\\\" evidently calculated the estimated annual premium of $9,353 shown on the application.\\nThe Policy\\nThe first page of the policy is titled \\\"Information Page.\\\" The Information Page reflects that Employers Casualty Company issued to the Company policy number C-25x2076, providing coverage for the period November 80, 1990, to November 30, 1991. A blank follows the printed statement that \\\"[t]his policy includes these endorsements and schedules.\\\" Notwithstanding the blank, copies of four apparent endorsements follow the information page in the summary judgment record, indicating perhaps that they were attached to the Information Page when it was delivered to the Company. In any case, the four endorsements in the record are not relevant to any issue in the appeal.\\nThe Information Page next declares as follows: The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All information required below is subject to verification and audit. The \\\"information required below\\\" sets forth the classifications and rates that result in the \\\"Estimated Annual Premium\\\" of $9,353, exactly as shown in the Company's application.\\nAudit Papers\\nFive pages in the summary judgment record pertain evidently to the servicing company's audit, the resulting calculations of the experience modifier and tabular surcharge, and the consequent premium increase claimed by the Facility. The pages are titled \\\"Experience Rating Form\\\" dated November 1, 1991; \\\"Payroll Audit Worksheet\\\" dated December 4, 1991, \\\"Audit Summary\\\" dated December 19, 1991; Audit Processing Worksheet dated December 19, 1991; and \\\"Audit Premium Adjustment\\\" dated December 19,1991.\\nThe audit-paper calculations show a \\\"standard premium\\\" and \\\"net earned premium\\\" of $18,958, of which the Company had paid $11,791.13 during the life of the policy, leaving an additional premium due equal to $7,166.87, the amount claimed by the Facility in its original petition and motion for summary judgment.\\nRequest for Endorsement\\nOn November 5, 1991, a person identified as \\\"S.A.\\\" prepared a \\\"Request for Endorsement\\\" addressed to \\\"Direct Underwriting Department.\\\" One section of the printed form is titled \\\"Changes (List effective dates and remarks: Refer to Check list in Activity Guide).\\\" In that section, the following handwritten statement appears:\\nSubst. sched.\\nExp. mod. 1.28\\nTab SC 40%\\nSC letter\\nServicing Company Handbook\\nA copy of the title page of the handbook is found in the record. The page bears the title Texas Workers Compensation Insurance Facility Servicing Company Handbook. The publisher is not indicated. The succeeding page is headed \\\"Rules and Regulations Governing Pool and Servicing Companies of Assigned Risks.\\\" The following appears under that heading:\\nPresent Phraseology\\nV. RATES AND ASSIGNED RISKS\\nRates and Rating Plan used shall be those prescribed by the State Board of Insurance for assigned risks.\\nNew Phraseology\\nV. RATES FOR ASSIGNED RISKS\\nRates and Rating Plan used shall be those prescribed by the State Board of Insurance for assigned Risks.\\nThere shall be a mandatory tabular surcharge plan for all risks having an experience modification in excess of 1.00. The tabular surcharge plan is shown in the Miscellaneous Value rate pages.\\nOn what appears to be the next page of the handbook shown in the summary judgment record is found a table headed \\\"Assigned Risk Pool Tabular Surcharge Plan.\\\" This page lists, under the subheading \\\"Experience Rating Modification,\\\" numbers from \\\"1.00 or less\\\" to \\\"over 2.50.\\\" Opposite these numbers, which appear to be experience modifiers, is shown a corresponding list of numbers under the heading \\\"Tabular Surcharge.\\\" These are apparently percentages. Opposite experience modifiers 1.26 through 1.30 is shown a tabular surcharge of 40%. These are, it appears, the authority for the 1.28 experience modifier developed in the Audit Papers and the corresponding 40% surcharge claimed by the Facility in the present case.\\nUpon the foregoing rests the summary judgment obtained by the Facility insofar as the issues on appeal are concerned.\\nDISCUSSION AND HOLDINGS\\nThe Company contends the summary judgment record will not sustain judgment as a matter of law on the Facility's claim for the additional $6,271.36 premium resulting from the experience modifier and tabular surcharge. We agree.\\nThe Facility evidently recovered judgment on a theory the Facility argues in this Court: The application form completed by the Company bore a printed warning that \\\"higher premiums may result through Pool surcharges up to 50% of standard premiums\\\"; and the policy issued to the Company bore a printed declaration that \\\"[t]he premium for this policy will be determined by our Manual of Rules, Classifications, Rates and Rating Plans.\\\" Thus, the Facility contends, the additional premium resulting from application of the experience modifier and requisite tabular surcharge were well within the language of the application, the policy, and the manual specified.\\nThe Facility also reasons that application of the experience modifier and tabular surcharge were not prohibited by the typewritten special instruction inserted in the binder, which directed that \\\"No Modifier and No Surcharge will Apply, Subject to Change on Anniversary Rate Date.\\\" The Facility explains that this statement meant simply that the estimated premiums reflected in the binder and policy were subject to change on the anniversary of the policy (November 30,1991) when the modifier and surcharge would be calculated and imposed retroactively; but, no modifier and no surcharge would be collected during the one-year life of the policy. And because the additional premiums resulting from imposition of the experience modifier and tabular surcharge were made effective on or after the anniversary date, the additional premium was within the permissive terms of the binder, so interpreted.\\nWe believe it may be possible to infer such a meaning from the statement in question. But it is also a reasonable interpretation that the statement means, as the Company contends, that no experience modifier and no surcharge would be imposed during the life of the policy ending November 30, 1991, but were permissible on any renewal of coverage for another period. The most that can be said for the Facility's position regarding the statement in the binder is that the statement is ambiguous. And the contrary meaning for which the Company contends is reinforced by the fact that the summary judgment record does not reflect that an endorsement, authorizing application of the experience modifier and tabular surcharge, was attached to the policy when it was delivered; nor does the record indicate that such an endorsement was issued thereafter. An endorsement was essential as a matter of law before any experience modifier and tabular surcharge could lawfully be imposed.\\nThe Department of Insurance (formerly the State Board of Insurance) promulgates standard policies for workers' compensation insurance as well as rate classifications and premium plans. The Department's promulgation of premium rates may take the form of premium rating plans by which premiums are calculated through application of a premium rate to the employer's total payroll. See Tex. Ins. Code Ann. art. 5.77 (West 1981); Union Indem. Co. v. Foley, 62 S.W.2d 684 (Tex.Civ.App.\\u2014Fort Worth 1933, writ dism'd). The resulting rates are exclusive and no others may be fixed by contract. See T.E.I.A. v. Russell, 127 Tex. 230, 91 S.W.2d 317, 319 (1936).\\nPremium rating plans promulgated by the Department may be either prospective or retrospective in their application. See Tex. Ins.Code Ann. art. 5.77 (West 1981). In the present case, the Facility contends the applicable rating plan authorized a retrospective application of the experience modifier and tabular surcharge. We will, for purposes of discussion, assume such is the case even though the rating plan upon which the Facility relies is not contained in the summary judgment record.\\nThe policy forms promulgated by the Department are also exclusive. Insurers writing workers' compensation insurance must use the official or \\\"standard\\\" policies. See id. art. 5.56 (West Supp.2000). The official or standard policies may be modified only by written endorsements that have been submitted to and approved by the Commissioner of Insurance. See id. art. 5.57 (West 1981).\\nThe Department compiled and published its Texas Basic Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability Insurance (1980 ed.). One section of the manual is titled \\\"Texas Standard Workers [sic] Compensation and Employers [sic] Liability Endorsements, . Effective July 1,1984.\\\" The first page of that section declares that the endorsement forms that follow the first page are \\\"the only endorsements permissible for use in affording Texas Worker [sic] Compensation and Employers [sic] liability coverages \\u2014 mandatory on and after July 1, 1984.\\\" One form that follows is numbered WC 42 04 03, titled \\\"Texas Experience Rating Modification Factor Endorsement,\\\" and states as follows:\\nThe premium for the policy will be adjusted by an experience rating modification factor, if any, which was not available when the policy was issued. We will issue an endorsement to show the proper factor when it is calculated.\\nThe notes accompanying the endorsement instruct as follows:\\n1. This endorsement may be used if the insured's experience rating modification factor is not available when the policy is issued.\\n2. An appropriate typewritten entry may be made in the Information Page instead of using this endorsement.\\nThe Information Page of the policy shown in the summary judgment record does not contain \\\"[a]n appropriate typewritten entry\\\" of the kind indicated. The summary judgment record does not contain an endorsement authorizing an experience rating modification that was not available when the policy was issued, on a form approved by the Commissioner of Insurance, which is among \\\"the only endorsements permissible for use in affording\\\" workers' compensation coverage. Because the Department's official or standard policies may be modified only by such written endorsements, we cannot say as a matter of law that the Facility was authorized to impose the additional premium based on the experience modifier and corresponding tabular surcharge.\\nWe reverse the summary judgment for the reasons stated and remand the cause to the trial court for further proceedings.\\n. The Texas Workers' Compensation Assigned Risk Pool (the \\\"Pool'') wrote the policy under which the Facility claimed the premiums in controversy here. The Pool was established by former article 5.76 of the Texas Insurance Code, which required the Pool to furnish workers' compensation coverage to employers who could not obtain such coverage in the voluntary market from either the Texas Employer Insurance Association or another authorized carrier, and were thus \\\"rejected risks.\\\" On an employer's application, the Pool calculated a deposit premium in accordance with rates and classifications promulgated by the State Board of Insurance (now the State Department of Insurance). After receiving a deposit, the Pool designated one of several \\\"servicing companies\\\"' \\u2014 independent carriers who were members of the Pool \\u2014 to issue the policy for the Pool. The servicing companies were reinsurers of the insurance thus provided by the Pool. See Tex. Ins.Code Ann. art. 5.76 (West 1981); Lemer, Workers' Compensation Law and Practice, 37 Texas Practice \\u00a7 5.04 at 347-48 (1989).\\nThe Facility, a private, non-profit, unincorporated association of insurers, succeeded to the Pool's functions on January 1, 1991, shortly after the Pool issued to the Company the policy involved in the present litigation. The Facility ceased writing workers' compensation insurance on December 31, 1993, after which the Texas Workers' Compensation Insurance Fund became insurer of last resort for such coverage. See Tex. Ins.Code Ann. art. 5.76-4 (West Supp.2000); Turner Bros. Trucking Co., Inc. v. Commissioner of Ins., 912 S.W.2d 386, 387 n. 1, 2 (Tex.App.\\u2014Austin 1995, no writ).\\n.The application and policy show the following premium calculations:\\nClassification Code_Payroll Rate Premium\\n8107 $ 81,564 9.67 $ 7,887\\n8809 22,100 .78 172\\nPool-rate Differential (15%) 1,209\\nExpense Constant 85\\nTotal Estimated Premium $ 9,353\\nThe additional premiums resulting from the Facility's audits and imposition of the experience modifier and tabular surcharge produced the following additional premiums claimed by the Facility:\\nClassification Code_Payroll Rate Premium\\n8107 $ 92,926 9.67 $ 8,986\\n8809 22,100 .78 172\\nPool-rate Differential (15%) 1,374\\nExperience Modifier 1.28 2,949\\nTabular Surcharge (40%) 5,392\\nExpense Constant 85\\nTotal Annual Premium $ 18,95 8\\n. The Company's policy provided coverage from November 30, 1990, to November 30, 1991. The Facility was under a duty to make a timely computation of the final premium resulting from retrospective application of the experience modifier and tabular surcharge. If we understand correctly the audit papers, the computation was not done in this instance until after expiration of the policy on November 30, 1991. The Company has not, however, complained that the computation was not timely. See Monarch Life Ins. Co. v. Trinity Indus., Inc., 495 S.W.2d 41, 43-44 (Tex.Civ.App.\\u2014Dallas 1973, no writ); see generally 14 Appleman on Insurance \\u00a7 7849.25 at 143 (1985).\\n. See supra n. 2. The Facility moved for summary judgment in the principal amount of $7,166.87, the amount claimed in the Facility's petition to be due and owing. The Facility recovered summary judgment, however, in the amount of $6,271.36. The latter amount results from the Facility's answer to a written interrogatory conceding that the \\\"current balance due\\\" is $6,271.36.\\n. The manual referred to is not in the summary judgment record.\"}"

tex/11243813.json

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+"{\"id\": \"11243813\", \"name\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int'l Corp., Appellees\", \"name_abbreviation\": \"Saint Paul Surplus Lines Ins. Co. v. Geo Pipe Co.\", \"decision_date\": \"2000-08-10\", \"docket_number\": \"No. 01-98-00294-CV\", \"first_page\": \"900\", \"last_page\": \"908\", \"citations\": \"25 S.W.3d 900\", \"volume\": \"25\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:35:05.507935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.\", \"parties\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int\\u2019l Corp., Appellees.\", \"head_matter\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int\\u2019l Corp., Appellees.\\nNo. 01-98-00294-CV.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nAug. 10, 2000.\\nJ. Stephen Gibson, Michael Wallace Huddleston, Keren Keltz, Dallas, for Appellant.\\nJ. James Cooper, Stacy R. Obenhaus, Marie R. Yeates, Gwen Samora, Houston, for Appellee.\\nPanel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.\\nThe Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.\", \"word_count\": \"4403\", \"char_count\": \"26902\", \"text\": \"OPINION ON REHEARING\\nLEE DUGGAN, Jr., Justice (Retired).\\nAppellant has filed a motion for rehearing. That motion is denied. However, we withdraw our opinion dated April 20, 2000 and substitute this opinion in its place.\\nThis is an appeal of a plaintiffs summary judgment in favor of the insured appellees, Geo Pipe Company (\\\"Geo Pipe\\\") and its corporate parent, Geo International Corporation (\\\"Geo International\\\"), in an insurance coverage dispute with appellant, St. Paul Surplus Lines Insurance Company (\\\"St.Paul\\\"), appellees' general liability insurer.\\nGeo International contracted with St. Paul in Illinois for insurance coverage (\\\"the St. Paul policy\\\") for itself and its subsidiaries and related affiliates. Several months after the St. Paul policy was issued, Geo International added Geo Pipe as a named insured, effective October 1, 1992. Most of Geo Pipe's business is done in Texas and Louisiana.\\nPrior to the St. Paul pokey's effective date, Geo Pipe sold chrome tubing to Walter Oil & Gas Corporation ('Walter Oil\\\") to be delivered to Galveston, Texas and installed in Walter Oil's offshore well.\\nIn May 1992, Walter Oil personnel detected a problem with constant pressure in the well. In July 1992, Walter Oil performed an initial \\\"workover\\\" and replaced the seals in the well's tubing. By August 1992, still before the effective date of the St. Paul policy, the pressure problem had returned. Walter Oil eventually took corrective action in March 1993, discovered a hole or \\\"washout\\\" in a joint of the tubing, and replaced the tubing.\\nWalter Oil demanded $1,628,348 from Geo Pipe for its workover costs of removing and replacing the tubing. Geo Pipe first reported Walter Oil's claim to its insurers before the effective date of the St. Paul policy. When the prior insurers disputed that the loss occurred during their policy period, Geo Pipe forwarded the claim to St. Paul, which declined coverage.\\nWalter Oil sued Geo Pipe in 1994, alleging breach of contract, breach of express and implied warranties, and negligence in supplying defective tubing. Walter Oil sought damages for (1) shutdown of the well; (2) removal of defective tubing; (3) purchase and installation of replacement tubing; and (4) lost profits incurred from loss of production.\\nBefore the suit went to trial, Geo Pipe declared bankruptcy. Under the bankruptcy court's supervision, Geo Pipe assigned its claim against St. Paul for breach of contract to Walter Oil in exchange for Walter Oil's agreement to satisfy any judgment against Geo Pipe solely from liability insurance proceeds. The case was never tried. Instead, in a proceeding contested by St. Paul as part of this appeal, Walter O\\u00f1 and Geo Pipe entered an agreed judgment against Geo Pipe, approved by the trial court, awarding Walter Oil $1,800,000 in damages.\\nAs Geo Pipe's assignee, Walter Oil then sued St. Paul and Geo Pipe's prior insurers and filed a motion for summary judgment against St. Paul on Geo Pipe's breach of contract claim. After a hearing, the trial court (1) determined that all issues between Geo Pipe and St. Paul were governed by Illinois law, (2) granted the summary judgment in favor of Walter Oil as assignee, and (3) awarded $1,000,000 in damages, $149,158.13 in prejudgment interest, and post-judgment interest. The trial court severed and abated the remaining causes of action against St. Paul and the prior insurers pending the resolution of this appeal.\\nOn appeal, St. Paul asserts in its first point of error that the trial court erred in granting summary judgment on the breach of contract claim because St. Paul had no duty to defend Geo Pipe under the policy.\\nThe parties agree that construction of the policy language and the determination of a duty to defend is the same under Texas and Illinois law, and that choice of law analysis is relevant only to the effect of a breach of contract if a duty to defend is found. We therefore construe the policy and analyze St. Paul's duty to defend un der Texas law.\\nTexas courts apply the \\\"eight corners\\\" rule to determine whether the duty to defend applies \\u2014 i.e., the Court compares the plaintiffs pleading allegations to the provisions of the insurance contract, without regard to the facts that eventually come out during discovery and trial. See National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Texas Property and Cas. Ins. Guar. Assoc. v. Southwest Aggregates, Inc., 982 S.W.2d 600, 604 (Tex.App.\\u2014Austin 1998, no pet.).\\nThe duty to defend and duty to indemnify are distinct and separate. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). The duty to defend arises when the plaintiff alleges facts that potentially support claims for which there is coverage. National Union, 939 S.W.2d at 141. The duty to defend is determined from the face of the pleading, without regard to ultimate truth or falsity of the allegations. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). The focus of this inquiry is on the facts alleged, however, not on legal theories. See Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193, 195 (Tex.App.\\u2014Dallas 1992, no writ). Further, we \\\"liberally construe the allegations in the petition in determining the duty to defend, resolving any doubt in favor of the insured,\\\" though we do not read any facts into the pleadings for that purpose. Trinity Universal, 945 S.W.2d at 825.\\nGeneral policy coverage\\nThe policy obligates St. Paul to pay amounts Geo Pipe \\\"is legally required to pay as damages for covered bodily injury, property damage or fire damage that:\\n\\u2022 happens while this agreement is in effect; and\\n\\u2022 is caused by an event.\\\"\\nThe policy defines an \\\"event\\\" as \\\"an accident; including continuous or repeated exposure to substantially the same general harmful conditions.\\\" \\\"Property damage\\\" is defined as\\n\\u2022 physical damage to tangible property of others, including all resulting loss of use of that property; or\\n\\u2022 loss of use of tangible property of others that isn't physically damaged.\\nPolicy exclusions\\nThe policy provides two relevant exclusions. First, the policy excludes damage \\\"to any of your products (i.e. Geo pipe's tubing) that's caused by the product itself or by any of its parts.\\\" Second, the policy excludes \\\"impaired property\\\":\\nWe won't cover property damage to impaired property, or property that hasn't been physically damaged, that's caused by;\\n\\u2022 your faulty . products or completed work; or\\n\\u2022 a delay in fulfilling the terms of a contract or agreement.\\nThe policy defines \\\"impaired property\\\" as\\ntangible property, other than your products or completed work, that can only be restored to use by:\\n\\u2022 the adjustment, repair, replacement or removal of your products or completed work which forms a part of it; or\\n\\u2022 your fulfilling the terms of a contract or agreement.\\nThus, St. Paul's policy generally excludes coverage for (1) damages to Geo Pipe's own products (the tubing it sold to Walter Oil) or (2) property damage (defined as both physical damage and damages arising from loss of use) to a third person's impaired property (Walter Oil's well) caused by Geo Pipe's tubing.\\nThe exception to the exclusions\\nAn exception to the application of these exclusions is that the policy will cover damages for the loss of use of a third person's property if caused \\\"by sudden and accidental physical damage\\\" to Geo Pipe's products:\\n[W]e won't apply this exclusion to damages that result from the loss of use of other property not physically damaged that's caused by sudden and accidental physical damage to your products or completed work after they've been put to their intended use. For example:\\nYou supply an electric motor to a customer who uses it to power his conveyor. The motor's shaft breaks several days later while he's operating the conveyor. The conveyor isn't damaged, but your customer has extra costs because he's unable to use it until the motor is repaired. If he sues you to recover those costs, we won't apply the exclusion. However, if the customer discovers while hooking the motor up to the conveyor that the motor's shaft is broken, we won't protect you.\\n(Emphasis in the original).\\nWalter Oil's allegations\\nWalter Oil alleged in its petition that it drilled the offshore well in the spring of 1992, commenced production in May 1992, and \\\"[tjhereafter, and continuing through the winter of 1993, there was constant pressure in the casing.\\\" The petition alleged that the cause of the pressure was unknown, that Walter Oil properly used the tubing at all times, and that it discovered a hole or \\\"washout\\\" in a joint of the tubing during a workover in March 1993. The petition alleged that the tubing was chrome and had been welded, and that this \\\"weld corroded, thereby causing the washout\\\" (emphasis added). Walter Oil argued this product defect was a cause of the \\\"failure of the tubing in question.\\\"\\nOn appeal, St. Paul argues that Walter Oil's pleadings do not allege sudden and accidental property damage, while Walter Oil as Geo Pipe's assignee argues this exception was met by the allegation of a hole or washout in the tubing.\\nTwo Texas decisions are helpful on the question whether a hole caused by corrosion is sudden and accidental. In Pioneer Chlor Alkali Co., Inc. v. Royal Indem. Co., the Fourteenth Court of Appeals was faced with a duty to defend claim involving a chlorine liquifier that developed four holes in three of its tubes through corrosion, which in turn led to another corrosive hole in an elbow of downstream piping and resulted in the sudden release of 42 tons of chlorine into the atmosphere. See 879 S.W.2d 920, 925 (Tex.App.\\u2014Houston [14th Dist.] 1994, no writ). The insurance policy in question specifically excluded corrosion from coverage under the policy, but covered a \\\"sudden and accidental breakdown\\\" of the equipment in question. Id. The Pioneer court drew a distinction between corrosion damage and the sudden and accidental release of gas into the atmosphere:\\n[The insured] admits that the tubes damaged because of the direct steam of brine concentrated onto the tubes would not be covered because that damage is corrosion damage; however, the damage caused by the sudden and accidental release of forty-two tons of chlorine would be.\\nId. at 934. The court also noted that, although corrosion was slow, the breach of the tubes fit the definition of sudden and accidental. Id. at 937.\\nTo the extent that Pioneer held that the holes in the tubes constituted sudden and accidental physical damage, we disagree. A hole caused by corrosion is necessarily gradual. But a fairer reading of the Pioneer decision would be that although the tubes corroded gradually, the damage complained of was due to a sudden and accidental release of forty-two tons of chlorine as the tubes were breached. That is, though the corrosion ate away the tubes gradually, the release of chlorine was virtually instantaneous.\\nA case more closely on point with the instant situation is Mesa Operating Co. v. California Union Ins. Co., 986 S.W.2d 749 (Tex.App.\\u2014Dallas 1999, pet. denied). In Mesa, the well casing in an underground well had corroded and allowed salt water to escape into a fresh water aquifer. Id. at 752. The well owner sought recovery from its insurer for its expenses to cure the aquifer and for damages to a landowner who used the aquifer, but the primary insurance policy excluded coverage for injury or property damage caused by pollutants or liquids unless caused by a \\\"sudden and accidental\\\" discharge. Id. at 754. After surveying the law of other states, the Mesa court held that the term \\\"sudden\\\" has a temporal component; i.e., that an event occur abruptly rather than simply unexpectedly. Id. at 755. The court then addressed the argument that, even if the well casing was corroded gradually, the breach of the casing was instantaneous:\\n[The insured] argues that even if the word \\\"sudden\\\" is held to mean \\\"quick\\\" or \\\"abrupt,\\\" the salt water contamination at issue happened \\\"suddenly.\\\" [The insured] reasons that the discharge occurred suddenly because at one point in time the well was whole and, an instant later, salt water breached the well and began escaping into the aquifer. According to [the insured], the fact that the leak was not discovered for a lengthy period of time does not negate the temporal suddenness with which the breach occurred. This argument has been described as the \\\"metaphysical moment\\\" theory. Under the logic of this theory, every event or condition not existing from the dawn of time would be considered \\\"sudden\\\" because at one moment it did not exist and the next moment it did. While we agree that the time of discovery does not control whether the discharge was sudden, we also conclude that a discharge that continues over a lengthy period of time cannot be considered \\\"sudden\\\" as a matter of law. For example, if evidence showed that a container burst, releasing a finite amount of pollution into the surrounding area within a short period of time, this discharge could be considered sudden even though its existence was not discovered for several years. Contrastingly, a leak of a pollutant that continues long past the point of the ini tial release will not be considered sudden.\\nMesa, 986 S.W.2d at 757 (citations omitted); see also SnyderGeneral Corp. v. Century Indemn. Co., 907 F.Supp. 991, 1001 (N.D.Tex.1995), aff'd in part and vacated in part on other grounds, 113 F.3d 536 (5th Cir.1997) (concluding that the suddenness of discharge can be determined from the period of time that commences with the release of the contaminant and ends when the flow ceases).\\nThe Mesa court ultimately determined the salt water pollution was not \\\"sudden\\\" because of evidence that the salt water from the underground well leaked into the aquifer for a period of years until it was discovered. Mesa, 986 S.W.2d at 757.\\nWe agree with the Mesa court that the term \\\"sudden\\\" has a temporal component and that an ongoing condition of sufficient duration cannot constitute a sudden event.\\nTurning back to Walter Oil's pleadings and viewing the policy language in the light most favorable to the insured, Walter Oil's pleadings do not allege \\\"sudden and accidental physical damage\\\" within the meaning of the exception to the impaired property exclusion. Walter Oil's entire cause of action is premised upon Geo Pipe's having provided chrome tubing that corroded because it had been welded, resulting in a hole in the pipe. Corrosion has a commonly understood, unambiguous meaning; the verb \\\"corrode\\\" is defined as \\\"to eat away by degrees as if by gnawing; esp: to wear away gradually usu. by chemical action.\\\" Webster's New Collegiate Dictionary, p. 253 (1981). Walter Oil's allegations establish that its claim is that the welded chrome tubing corroded \\u2014 was eaten away by degrees, or wore away gradually \\u2014 until a hole appeared. Such an allegation is one of physical damage that is incremental or gradual, the opposite of \\\"sudden.\\\" Nor do Walter Oil's allegations establish a (temporally) sudden and discrete event such as the abrupt release of 42 tons of chlorine in Pioneer. Rather, Walter Oil's pleadings allege \\\"constant pressure\\\" in the well casing after May 1992 and \\\"continuing through the winter of 1993.\\\" This situation more closely resembles the continuous, non-sudden, release of saltwater after corrosion in the well casing in Mesa.\\nWhile Walter Oil urges that we construe its pleading that a hole appeared as a sudden and accidental event, its literal allegation is that physical damage to the pipe was by corrosion, resulting in constant pressure over a period of months. We cannot construe such damage to the tubing as sudden physical damage.\\nWalter Oil's loss was excluded because it was for property damage to Geo Pipe's products (pipe tubing) and \\\"impaired property\\\" (Walter Oil's well)' \\u2014 \\\"tangible property . that can only be restored to use by . repair, replacement or removal of [Geo Pipe's] products or completed work which forms a part of it.\\\" Further, the loss was not within the policy's \\\"sudden and accidental\\\" exception to the application of these policy exclusions.\\nApplication of the \\\"eight corners\\\" rule comparing Walter Oil's pleadings with the coverage provisions of St. Paul's policy insuring Geo Pipe shows that the loss was excluded under policy terms.\\nIn its motion for rehearing, Walter Oil as Geo Pipe's assignee argues that an Illinois court would interpret \\\"sudden and accidental\\\" differently under Illinois law. Walter Oil points out that the Illinois Supreme Court has interpreted the words \\\"sudden and accidental,\\\" in an insurance policy's pollution exclusion clause, as \\\"unexpected or unintended,\\\" rather than \\\"abrupt, rapid, or swift.\\\" Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1218 (1992). Walter Oil argues that this Court, by applying a temporal requirement to the St. Paul policy's use of the term \\\"sudden and accidental,\\\" has created a conflict with Illinois law that requires choice of law analysis to resolve.\\nOutboard is distinguishable from this case. The Outboard court found that the term \\\"sudden\\\" as used in that particular policy could be interpreted both as abrupt (temporal) and unexpected (non-temporal). Id. Resolving the ambiguity in the insured's favor, the court construed \\\"sudden\\\" as \\\"unexpected or unintended,\\\" the non-temporal definition. Id. The Outboard court was careful, however, to limit its analysis to the facts and policy before it:\\nWe conclude that the two definitions of \\\"sudden\\\" set forth above are both reasonable interpretations of this term in the context in which it appears. Therefore, \\\"sudden\\\" is, at a minimum, ambiguous as used in these policies. In Illinois, ambiguities and doubts in insurance policies are resolved in favor of the insured, especially those that appear in exclusionary clauses. Consequently, in this particular context, we construe \\\"sudden\\\" in favor of OMC and find it to mean unexpected or unintended.\\nId. (emphasis added, citations omitted).\\nIn our case, we are presented not only with the term \\\"sudden and accidental\\\" but also with an example, within the policy, clarifying its meaning. As stated earlier, the policy provided the following example of a sudden and accidental event:\\nYou supply an electric motor to a customer who uses it to power his conveyor. The motor's shaft breaks several days later while he's operating the conveyor. The conveyor isn't damaged, but your customer has extra costs because he's unable to use it until the motor is repaired. If he sues you to recover those costs, we won't apply the exclusion. However, if the customer discovers while hooking the motor up to the conveyor that the motor's shaft is broken, we won't protect you.\\nThe example provided in the policy has two elements. First, the accident immediately (a temporal requirement) prevents the use of the third party's property \\u2014 the customer's motor's shaft breaks and the customer is \\\"unable to use [his property] until the motor is repaired.\\\" (Emphasis added). Second, the event must be unexpected (a non-temporal requirement) \\u2014 if the customer \\\"discovers\\\" the problem ahead of time, the event is excluded. Under this policy, the term \\\"sudden\\\" is thus clarified to mean an abrupt (temporal) and unexpected (non-temporal) event \\u2014 both senses of the word sudden. The Outboard court concluded that \\\"sudden\\\" was ambiguous because of dispositive meanings \\u2014 either abrupt or unexpected \\u2014 and construing the policy in favor of the insured, the court held that \\\"sudden\\\" required only that the event be unexpected. Under this policy, however, the policy example shows that a \\\"sudden and accidental\\\" event must be both abrupt and unexpected. Both are requirements that must be satisfied, and because of the policy example we are not at liberty to choose between them; even under Illinois law there is no ambiguity under this policy.\\nTexas courts have decided that the term \\\"sudden\\\" unambiguously contains a temporal element. See Mesa, 986 S.W.2d at 755; Gulf Metals, 993 S.W.2d at 807; see also Mustang Tractor, 76 F.3d at 92 (construing a policy's use of the term \\\"sudden\\\" under Texas law). But assuming, without deciding, that Illinois law applied to the St. Paul policy (and that corrosion resulting in a pressure problem, of which Walter Oil was aware before the policy's effective date, is truly an \\\"unanticipated\\\" event), we conclude an Illinois court would find the term \\\"sudden and accidental,\\\" as defined by example in this particular policy, unambiguously includes a temporal component. To reiterate, whether under Texas or Illinois law, gradual corrosion, resulting in a pressure problem lasting more than a half-year before the well was eventually shut down and repaired, does not constitute a \\\"sudden\\\" event under the St. Paul policy rendering Walter Oil's property unusable until repaired.\\nSt. Paul therefore did not breach its duty to defend Geo Pipe under the policy. St. Paul's first point of error is sustained. Because this point is dispositive, we do not consider St. Paul's remaining points.\\nThe summary judgment is reversed, and the cause is remanded to the trial court.\\n. James Looke, a representative of Walter Oil, testified in a deposition that three days after the well originally went on production, Walter Oil noticed an increase in casing pressure in the well. He said that the casing pressure should ordinarily be lower than the pressure in the well's pipe. He also testified that a well with increased casing pressure could continue to be used, \\\"but it's not a safe situation to have.\\\" He stated that Walter Oil employees originally attributed the pressure to a problem with leakage in the seals, threads, or packer, though ultimately they discovered a hole in the pipe tubing. His final analysis of the cause of the problem was that \\\"the pressure went up due to the hole in the pipe, and the hole probably started off as a small leak and then got bigger and bigger and bigger.\\\" He also conceded that although Walter Oil could have worked over the well to determine the cause of the pressure problem from November 1992 through March 1993, it kept operating the well until March because of high gas prices during the winter. Though our analysis in this opinion is confined to Walter Oil's pleadings in its suit against Geo Pipe and to the language of the St. Paul policy, we set out this testimony as helpful background information.\\n. In its motion for rehearing, however, Walter Oil as Geo Pipe's assignee argues that our interpretation of the policy term, \\\"sudden and accidental,\\\" is at variance with Illinois law, necessitating a new opinion with choice of law analysis to determine which forum's law governs the determination of the duty to defend. As will be explained below, whether under Texas or Illinois law, we find that this particular policy language would be interpreted the same way. In the absence of a true conflict of law, we do not undertake choice of law analysis. See generally Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex.1984) (determining that, before undertaking choice of law analysis, the Court \\\"must first determine whether there is a difference between the rules of Texas and New Mexico on this issue\\\"); Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 260 (Tex.App.\\u2014San Antonio 1999, no pet.) (initially determining whether there was a \\\"conflict of law which would necessitate the trial court to decide a choice of law issue\\\" before conducting choice of law analysis); Hull & Co., Inc. v. Chandler, 889 S.W.2d 513, 517 (Tex.App.\\u2014Houston [14th Dist.] 1994, writ denied) (noting that a party must ordinarily cite the conflicting law of another forum \\\"before undertaking a choice-of-law analysis so that the court can determine whether a true conflict of laws exists\\\").\\n. The Mesa decision is the first Texas decision to reach this precise issue; the Pioneer decision never expressly addresses whether the term \\\"sudden\\\" implies a temporal component. See Mesa, 986 S.W.2d at 755-56 (discussing Pioneer's analysis of the phrase \\\"sudden and accidental\\\"). Subsequently, the Austin Court of Appeals determined similarly that \\\"the word 'sudden' clearly and unambiguously imparts a sense of temporal urgency\\\" in comprehensive general liability policies. Gulf Metals Indus., Inc. v. Chicago Ins. Co., 993 S.W.2d 800, 807 (Tex.App.\\u2014Austin 1999, pet. denied). See also Mustang Tractor & Equip. Co. v. Liberty Mut. Ins. Co., 76 F.3d 89, 92 (5th Cir.1996) (determining that, \\\"[u]nder Texas rules of construction, . 'sudden' must be read to include a temporal element\\\").\\n. Walter Oil also argues that the cases cited by this decision involve pollution exclusion clauses and are inapplicable to Geo Pipe's appeal. However, the case it cites to show that the word \\\"sudden\\\" does not necessitate a temporal requirement, Outboard, involves a pollution exclusion clause. We find the discussion of \\\"sudden and accidental\\\" in pollution exclusion clauses in other decisions relevant to the meaning of the term in this policy.\\n. St. Paul's remaining points of error generally are premised on the choice of law governing the effect of the breach of a duty to defend. Illinois law, unlike that of Texas, es-tops an insurer from contesting indemnification coverage once the duty to defend has been breached. Compare Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335, 340 (1978) (observing that an insurer's wrongful failure to defend \\\"estop[s] the insurer from later raising policy defenses or noncoverage in a subsequent action by the insured or by a judgment creditor in garnishment\\\") with Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988) (\\\"The doctrine of estoppel cannot be used to create insurance coverage when none exists by the terms of the policy.\\\"). St. Paul argues alternatively that even if there was a duty to defend, (1) the trial court erred in applying Illinois law to the St. Paul policy; (2) Geo Pipe's assignment of its rights against St. Paul to Walter Oil was invalid under Texas law; and (3) there was insufficient proof of damages to support the trial court's award under Texas law. Because we have concluded St. Paul did not breach its duty to defend, we do not address whether the trial court should have applied Texas law to the remaining issues.\"}"

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+"{\"id\": \"11308921\", \"name\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Wilson v. State\", \"decision_date\": \"1984-09-26\", \"docket_number\": \"No. 687-82\", \"first_page\": \"518\", \"last_page\": \"524\", \"citations\": \"677 S.W.2d 518\", \"volume\": \"677\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:31:09.053537+00:00\", \"provenance\": \"CAP\", \"judges\": \"W.C. DAVIS, J., concurs in result.\", \"parties\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.\\nNo. 687-82.\\nCourt of Criminal Appeals of Texas, En Banc.\\nSept. 26, 1984.\\nRoss Teter, Dallas, for appellant.\\nHenry Wade, Dist. Atty., and R. K. Weaver, Steve Wilensky and Robert Wha-ley, Asst. Dist. Attys., Dallas, Robert Hut-tash, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"2822\", \"char_count\": \"17029\", \"text\": \"OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW\\nTEAGUE, Justice.\\nBruce Patrick Wilson, appellant, was convicted by a jury in the trial court of attempted burglary and his punishment, enhanced, was assessed by the trial judge at life imprisonment. He appealed his conviction and sentence to the El Paso Court of Appeals. He asserted on appeal in one ground of error that one of the prior convictions that had been alleged for enhancement of punishment should not have been used to enhance his punishment to life imprisonment because it was based upon a void judgment and sentence.\\nThe El Paso Court of Appeals, after it found that a variance existed between the alleged prior felony conviction that appellant had attacked in the trial court and on appeal and the proof adduced to support the allegation, affirmed appellant's conviction but remanded the cause to the trial court for reassessment of punishment. See Wilson v. State, 633 S.W.2d 952 (Tex.App.\\u2014El Paso 1982). The authority the court of appeals used was this Court's decision of Aaron v. State, 546 S.W.2d 277 (Tex.Cr.App.1976), in which this Court had held that a variance existed between the allegations and the proof, when an indictment alleges the offense of \\\"attempted burglary,\\\" but the sentence reflects that the offense was \\\"simple burglary.\\\"\\nWe granted the State's petition for discretionary review, see Todd v. State, 661 S.W.2d 116 (Tex.Cr.App.1983), in order to make the determination whether this Court's decision of Aaron v. State, supra, is in conflict with this Court's recent deci sion of Hall v. State, 619 S.W.2d 156 (Tex.Cr.App.1980). The State urges in its petition that this Court should reconcile Aaron and Hall if it can, but if it finds that Aaron conflicts with Hall, then it should overrule Aaron.\\nWe find that before we reach the issue that is before us, we must first discuss one other issue that is in the case, namely, the admissibility of the \\\"Nunc Pro Tunc Order\\\" that was presumably admitted into evidence pursuant to the provisions of Art. 3720, V.A.C.S.\\nThe indictment in this cause alleges that appellant had been finally convicted of two prior felony convictions. Appellant pled \\\"Not Guilty\\\" to the primary charge and \\\"Not True\\\" to the enhancement allegations. The issue of the validity of the alleged prior felony conviction which appellant attached on appeal arose during appellant's trial when the prosecuting attorney made it known he was going to impeach appellant with it on cross-examination.\\nThe judgment and sentence of the prior felony conviction that appellant attacks, which is in the record of appeal, reflects that appellant was previously convicted on December 19, 1974, of the offense of burglary of a habitation, \\\"as charged in the indictment,\\\" and punishment was assessed at four (4) years' confinement in the penitentiary.\\nThe offense of burglary of a habitation, however, is a first degree felony, see Y.T. C.A., Penal Code, Section 30.02 (d), which at the time of appellant's conviction had a range of punishment of not less than 5 years nor more than 99 years' confinement or life imprisonment in the penitentiary and a fine of up to $10,000. See Y.T.C.A., Penal Code, Section 12.32. Thus, the minimum possible punishment that could have been assessed by the trial judge for the offense of burglary of a habitation was 5 years' confinement in the penitentiary, not 4 years' confinement as the written judgment reflects, because this was below the minimum punishment permitted by law. The written sentence, which placed into execution the written judgment, tracks in all things the written judgment of the convicting court.\\nAlthough the record is not exactly clear how it occurred, nevertheless, the record reflects that during trial the State filed with the convicting court a motion to have the judgment and sentence corrected, \\\"nunc pro tunc,\\\" after which a hearing was held and the presiding judge of the convicting court soon thereafter entered a \\\"Nunc Pro Tunc Order.\\\"\\nThe Latin phrase, \\\"Nunc Pro Tunc,\\\" literally means \\\"Now for then.\\\" It merely describes the inherent power that a court has to make its records speak the truth, i.e., to correct now what the record actually reflects had occurred at some time in the past. 964 Black's Law Dictionary (5th Edition).\\nHowever, judicial, as distinguished from clerical, errors may not be corrected by a nunc pro tunc judgment, and a motion for judgment nunc pro tunc, seeking to correct a judicial mistake as distinguished from a clerical mistake or omission, is not sufficient to constitute an equity proceeding in the nature of a bill of review. 33 Tex.Jur.2d Sec. 29.\\nThus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was therefore actually rendered or pronounced at an earlier time. 25 Tex.Jur.3d Sec. 3641. Other than his assertion that the judgment nunc pro tunc \\\"is uncertified,\\\" appellant makes no attack on the sufficiency of the \\\"Nunc Pro Tunc Order\\\" that was signed by the presiding judge of the convicting court.\\nThe record reflects that at the punishment stage of the trial, the trial judge, over objection, took \\\"judicial notice\\\" of the fact \\\"that Judge Zimmerman [the presiding judge of the convicting court] has entered the order and his order is based on the testimony he heard. I will accept Judge Zimmerman's certification [sic] of that.\\\" Notwithstanding that there is not anything in this record, such as the docket sheet, the indictment, a transcription of the court reporter's notes, or the minutes of the court, that would reflect what occurred in the past that causes the judgment and sentence that relates to the challenged prior felony conviction not to actually reflect what transpired at the time they were entered in the minutes of the trial court on December 19, 1974, if, either because of \\\"judicial notice\\\" or some other legal reason, the document was admissible evidence, it would cure the defect regarding the prior felony conviction which appellant complained of in the trial court and on appeal.\\nWe also point out that we are not privy to what occurred at the hearing that occurred on the State's motion to correct the judgment and sentence, nunc pro tunc, because a transcription of that proceeding is not in this record of appeal. Interestingly, however, the \\\"Nunc Pro Tunc Order\\\" reflects the following: \\\"The Court further finds that a correct judgment and sentence was entered by the trial court on December 19, 1974, but incorrectly entered in the minutes of the Court...\\\"' To read this portion of the order literally would allow for an unwarranted contradiction to take place. We do not do so because we find that it is obvious that the first \\\"entered\\\" should have instead been \\\"rendered.\\\"\\nSince September 1, 1981, a judgment in a criminal case is a written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. Art. 42.01, V.A.C.C.P. The judgment in a criminal case, whether the case involves a felony or a misdemeanor, must be entered of record. Art. 42.01, Sections 1 and 3, V.A.C.C.P.\\nHowever, prior to September 1, 1981, Art. 42.01, Section 1, supra, merely provided that \\\"A 'judgment' [was] the declaration of the court entered of record...\\\"\\nThus, prior to the effective date of the amendment, the minutes of a court controlled over any written judgment. At that time, it was the trial court's duty to enter into its minutes a true record of the judgment that was rendered. \\\"Entered of record,\\\" as applied to a judgment in a criminal case, means \\\"entered in the minutes of the court.\\\" Moore v. State, 245 S.W.2d 491 (Tex.Cr.App.1952). The term \\\"entered,\\\" as used in that instance, however, is not synonymous with the term \\\"signed,\\\" but has a definite fixed legal meaning and refers to the ministerial act of the clerk in spreading the court's judgment in the minutes of the court. Thus, prior to the above amendment, the minutes of a court were the memoranda of what took place in court, made by authority of the court.\\nWe conclude that the convicting court had the inherent power to correct its minutes to correctly reflect what the judgment of the court was, namely, that appellant had been convicted, not of the offense of burglary of a habitation, but, instead, had been convicted of the offense of burglary of a building. The offense of burglary of a building may be a lesser included offense of the offense of burglary of a habitation. Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976).\\nHowever, and notwithstanding that we have found that the convicting court had the inherent power to correct its records relating to the complained of prior felony conviction, we must next decide whether the \\\"Nunc Pro Tunc Order\\\" that Judge Zimmerman purportedly signed was properly admitted into evidence at the punishment stage of the trial. We hold that it was not admissible evidence.\\nThe record reflects that the prosecuting attorney, over objection, merely had the document marked and offered it into evidence. The trial judge then admitted it into evidence.\\nUnder Art. 3720, V.A.C.S., a judicial record is self-proving provided that the requirements of the statute are satisfied. The statute provides: \\\"Copies of the records and filed papers... [of] courts of this State, certified to under the hand, and the seal if there be one, of the lawful possessor of such records, should be admitted as evidence in all cases where the records themselves would be admissible.\\\" If, however, the conditions of the statute are not satisfied, then the document represents nothing less than hearsay evidence, and, of course, hearsay evidence has no probative value. Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966).\\nThe record reflects that State's exhibit number 14A, which was the \\\"Nunc Pro Tunc Order\\\" purportedly signed by Judge Zimmerman, was, standing alone, hearsay evidence. However, Art. 3720, supra, creates a qualified exception to the hearsay rule of evidence. We find in this instance that the prosecuting attorney, pri- or to offering the exhibit into evidence, failed to satisfy the conditions of Art. 3720, supra, that would have permitted the admission into evidence of a copy of the original of the \\\"Nunc Pro Tunc Order.\\\"\\nAuthentication of an official record is the act or mode of giving authority or legal authenticity to a court's record, so as to render it legally admissible in evidence. Under the provisions of Art. 3720, supra, the authentication required of a certified copy of a court's record is the signature and seal of its lawful possessor. If the possessor or lawful custodian of the document certifies that the instrument is a true copy of the original on file in his office, then the document is admissible under Art. 3720, supra. Otherwise, such a document is hearsay and inadmissible evidence.\\nWe observe that the involved exhibit does not bear either a clerk's file mark or a seal. Nor does the copy of the exhibit that was admitted into evidence that is in the record of appeal contain a certification by the lawful possessor of the original document. Thus, the provisions of Art. 3720, supra, were not complied with. The exhibit was not admissible pursuant to the provisions of Art. 3720, supra. Compare Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 337 (Tex.1963); Phillips v. Houston, 572 S.W.2d 797 (Tex.Civ.App.\\u2014Waco 1978) no writ history, in which it was held that an unattested and uncertified letter from the Industrial Accident Board was not admissible evidence under the provisions of Art. 3731a, Section 4, V.A.T.C.S.\\nTherefore, we hold that State's exhibit number 14a was hearsay and inadmissible evidence.\\nHowever, the trial judge, over objection, took judicial notice of the document. Was this permissible? Without reservation or hesitation, we answer the question with an unequivocal \\\"NO.\\\"\\nThe trial of this cause occurred in the 204th Judicial District Court of Dallas County. The \\\"Nunc Pro Tunc Order\\\" was purportedly signed by Judge Zimmerman, the presiding judge of the Criminal District Court No. 3 of Dallas County.\\nOf course, a trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. 1 Ray, Texas Practice, Sec. 186. However, one trial court generally lacks the power to take judicial notice of the records or documents that might be on file in another trial court. We have not found any exception to the general rule that would have allowed the trial judge in this instance to take judicial notice of whatever Judge Zimmerman, the presiding judge of another and the convicting court, might have done that related to a judgment and sentence that had previously been entered in the trial court over which he then presided.\\nIn this regard, we observe that the Supreme Court of Texas, in Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 171 (1944), held the following: \\\"While it is true that the court will take judicial knowledge of its own records, we know of no such rule which would authorize a district court or a court of civil appeals in passing upon a demurrer in a case like this to take judicial knowledge of the records of a probate court.\\\" Also see Fikes Estate v. King Land and Cattle Corporation, 438 S.W.2d 665 (Tex.Civ.App.\\u2014Ft. Worth 1969) error dismissed (\\\"We cannot take judicial notice of evidentiary matters in our records upon the prior appeals of cases where the records therein were not from the same case.\\\")\\nWe believe that in this instance the action of the trial judge in taking judicial notice of what Judge Zimmerman might have done amounted to injecting into the case his personal knowledge, albeit based upon hearsay, as to what occurred in Judge Zimmermann's court, as well as what Judge Zimmerman purportedly did. \\\"However, it is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge. The judge may personally know a fact of which he cannot take judicial notice. Contrariwise, he may be required to notice facts as to which he has no private knowledge If the judge has personal knowledge of a fact not judicially known, the proper way to make use of it is for him to take the stand as a witness and testify to what he knows.\\\" McCormick and Ray, Texas Law of Evidence, 2d Ed., Vol. 1, at 172-173.\\nWe hold that the trial judge erred in taking judicial notice of the \\\"Nunc Pro Tunc Order\\\" purportedly signed by Judge Zimmerman. Also see Hickey v. Hickey, 203 S.W.2d 568 (Tex.Civ.App.\\u2014Eastland 1947) No writ history.\\nWe must now determine what the effect of our holding that State's exhibit number 14A was not properly admitted into evidence will be on this case. We find that such holding renders the judgment of conviction that pertains to the complained of prior conviction void.\\nIt is now axiomatic that the punishment assessed must always be within the minimum and maximum fixed by law. When the punishment assessed is less than the minimum provided by law, this renders the judgment of conviction a nullity. Gonzales v. State, 527 S.W.2d 540 (Tex.Cr.App.1975); Smith v. State, 424 S.W.2d 228 (Tex.Cr.App.1968); Clardy v. State, 415 S.W.2d 423 (Tex.Cr.App.1967); Gassoway v. State, 385 S.W.2d 386 (Tex.Cr.App.1965); Compian v. State, 363 S.W.2d 468 (Tex.Cr.App.1963); Russell v. State, 352 S.W.2d 746 (Tex.Cr.App.1962); Craven v. State, 350 S.W.2d 34 (Tex.Cr.App.1961); Nichols v. State, 344 S.W.2d 694 (Tex.Cr.App.1961); Bradshaw v. State, 331 S.W.2d 52 (Tex.Cr.App.1960).\\nAs we previously pointed out, after appellant was convicted of committing the offense of burglary of a habitation in the alleged prior felony cause which he attacks in this cause, his punishment was assessed by the trial judge at four (4) years' confinement in the penitentiary. This was impermissible because the minimum punishment provided by law was five (5) years' confinement in the penitentiary. The judgment of conviction is void and should not have been used against appellant.\\nIn light of what we have previously stated, we pretermit for another day a discussion of the issue whether Hall v. State, supra, conflicts with Aaron v. State, supra, and, if so, which one should be overruled.\\nFor the above reasons, we agree with the result that the court of appeals reached; that the cause must be reversed and remanded to the trial court for reassessment of punishment. The cause is therefore reversed and remanded for a new punishment hearing only.\\nW.C. DAVIS, J., concurs in result.\\nMILLER, J., dissents.\"}"

tex/11594611.json

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+"{\"id\": \"11594611\", \"name\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee\", \"name_abbreviation\": \"General Motors Acceptance Corp. v. Crenshaw, Dupree & Milam, L.L.P.\", \"decision_date\": \"1998-09-17\", \"docket_number\": \"No. 08-96-00411-CV\", \"first_page\": \"632\", \"last_page\": \"636\", \"citations\": \"986 S.W.2d 632\", \"volume\": \"986\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:14:54.598192+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Panel No. 4 BARAJAS, C.J., and LARSEN and McCLURE, JJ.\", \"parties\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.\", \"head_matter\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.\\nNo. 08-96-00411-CV.\\nCourt of Appeals of Texas, El Paso.\\nSept. 17, 1998.\\nRehearing Overruled Dec. 2, 1998.\\nCarlos Villa, Villa & Keith, L.L.P., El Paso, Patricia D. Pope, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for Appellant.\\nJohn C. Steinberger, Dudley Dudley Win-dle & Stevens, El Paso, Charles T. Frazier, Cowles & Thompson, P.C., Dallas, for State.\\nBefore Panel No. 4 BARAJAS, C.J., and LARSEN and McCLURE, JJ.\", \"word_count\": \"2416\", \"char_count\": \"14889\", \"text\": \"OPINION\\nBARAJAS, Chief Justice.\\nThis is an appeal from a summary judgment granted in favor of Appellee Crenshaw, Dupree & Milam, L.L.P. (\\\"CD & M\\\"). For the reasons stated below, we reverse the judgment of the trial court.\\nI. SUMMARY OF THE EVIDENCE\\nA. Procedural History\\nThis appeal arises from a fraud and legal malpractice claim against Appellant General Motors Acceptance Corporation (\\\"GMAC\\\") and CD & M. GMAC and CD & M were sued by Gordon Rose, Jean Rose, Robert Rose, Dayonne Rose, Modern Chevrolet, Inc., and Modern Hyundai, Inc., (\\\"the Roses\\\") for numerous common law tort causes of action and violations of the DTP A. On November 10, 1995, the Roses entered into a settlement agreement with Appellant. The trial court dismissed the Roses' claims against Appellant with prejudice on November 23, 1995. On January 9, 1996, the Roses settled their claims with CD & M. The trial court dismissed the Roses' claims against CD & M with prejudice on January 12,1996.\\nOn August 25, 1995, Appellant filed its Original Cross-Claim against CD & M seeking actual damages and indemnification and/or contribution. On December 14, 1995, CD & M filed a Motion for Partial Summary Judgment alleging that Appellant's cross-claim was barred by limitations. On January 26, 1996, CD & M filed its First Amended Counter-Claim against Appellant seeking indemnity and attorney's fees. On February 9, 1996, CD & M filed its Second Motion for Summary Judgment alleging that Appellant's cross-claim was not an independent cause of action, that no privity existed between CD & M and Appellant when it obtained the waiver from the Roses, that Appellant was not entitled to contribution as a matter of law because the Roses' claims had been settled, and that Appellant was not entitled to common law indemnity. Appellant filed its response on March 4,1996. On March 5,1996, Appellant filed its Third Amended Original Cross-Claim seeking actual damages, pre- and post-judgment interest, attorney's fees, and court costs, thereby dropping the language of contribution and indemnity. The parties filed various objections to certain portions of the summary judgment evidence and these motions were set for hearings on January 8, March 13, and August 20, 1996. Appellant filed an Amended Motion for Summary Judgment on September 19, 1996, asserting that CD & M's cross-claim failed to state a claim upon which relief could be granted. CD & M filed its response on September 20, 1996.\\nThe trial court denied the objections to the summary judgment evidence. It then entered Final Judgment on September 20, 1996, in which it denied CD & M's Motion for Partial Summary Judgment on limitations, granted CD & M's Second Motion for Summary Judgment, and granted Appellant's Amended Motion for Summary Judgment, ruling that the parties take nothing against each other.\\nB. Factual History\\nIn the latter part of 1989, the Roses were approached by Appellant with a proposal that they should acquire a Hyundai dealership in Lubbock, Texas, which was then owned by Eddie Horn. Appellant arranged for a meeting between the Roses and Horn and representatives of each of their dealerships. As a result of these meetings, the Roses entered into an Undertaking and Indemnity Agreement with Horn, whereby the Roses' Modern Chevrolet took over the management of the Hyundai dealership. Appellant committed to the Roses that it would make a loan for them to purchase the Hyundai dealership. The purchase of the dealership could not be consummated until the GMAC loan was finalized and loan proceeds disbursed. The Undertaking and Indemnity Agreement, however, made the Roses responsible for all liabilities of the Hyundai dealership from and after March 1, 1990. Appellant was aware of this and also knew that Hyundai would not ship any new cars for the Roses to sell until the Roses had acquired the dealership, and that the acquisition was dependent on the closing of the GMAC loan.\\nIn March of 1990, the Roses completed the loan applications for the Hyundai dealership. Accompanying the loan application was a forecast of operations of a Hyundai dealership which was prepared by Ronnie Bradshaw of GMAC and was presented to the Roses with the intent that they rely upon those projections. Although the Roses were assured that their loan applications would be approved, the March application was never approved and no disbursement was made based upon those applications. In June of 1990, a second loan application was completed, and was again accompanied by a forecast of operations for Hyundai, as well as a forecast of operations for Modern Chevrolet, both of which were prepared by Ronnie Bradshaw. These forecasts were prepared with the intent that they be relied upon and utilized by the Roses.\\nThe loan proceeds were not disbursed until August 31, 1990. At that time, the Roses received $500,000, with' only $88,372 designated for working capital, a figure far less than that previously promised by Appellant and utilized in the forecasts. Appellant never adjusted the financial forecast to reflect the reduction in the working capital portion of the loan and never advised the Roses of the effect of the reduction, which was to reduce the cash flow to the dealership under the projections from a positive figure to a negative figure, thus guaranteeing under Appellant's projections that additional sources of cash would be required to Hyundai over the period covered by the forecast.\\nAt all times pertinent hereto, Appellant was aware of and had full knowledge of the financial condition of the Roses as well as the financial condition of Horn and the Hyundai dealership. Prior to the loan to the Hyundai dealership, the Roses had considerable borrowing power and a considerable net worth. However, Appellant required the Roses to pledge as collateral the assignment of all rents of the Modern Chevrolet dealership and of Horn Hyundai, and also took second and third mortgages on the Modern Chevrolet land and buildings on which it already had a first mortgage. This left the Roses with little borrowing power and gave Appellant far more collateral than it had previously or that it reasonably needed to secure the loan.\\nBetween March and August of 1990, the Roses received only $50,000 in working capital loans from Appellant to operate the Hyundai dealership. That amount was insufficient and the Roses were forced to divert personal funds, as well as funds of Modern Chevrolet, to the Hyundai dealership to keep it operating. The Roses diverted those funds because of their continued reliance on Appellant's representations that a loan disbursement, including additional funds, would be forthcoming.\\nWhen the time came to close the loan on the Hyundai dealership in August of 1990, the Roses were faced with the proposition of either trusting Appellant's promises and projections and attempting to make the Hyundai dealership a successful one, or refusing to close the loan, and losing all of the funds they had already diverted to the Hyundai dealership. They chose to rely upon what they later learned were the wrongful and misleading representations of Appellant. The drain of funds by the Hyundai dealership from Modern Chevrolet ultimately proved to be fatal for both dealerships. Had the Roses not been forced to divert funds and had they not granted additional collateral to Appellant, Modern Chevrolet could have been salvaged. Instead, Modern Chevrolet was sold at a loss and both Modern Chevrolet and the Roses were forced into bankruptcy-\\nAt all times pertinent hereto, the Roses were represented by Appellee, CD & M. The firm also represented Appellant. Thus, at the closing of the loan, CD & M was representing persons with conflicting interests. CD & M obtained a Waiver of a Conflict of Interest signed by the Roses. However, the Roses contended that the waiver was ineffective because it was never explained to them, they were never given the opportunity to obtain other counsel, and CD & M never explained to the Roses how the judgment of CD & M might be adversely affected by their representation of Appellant. The Roses contended that CD & M breached its duty of loyalty when it concurrently represented Appellant, despite the clear conflict of interest. The Roses also argued that CD & M, who had represented them for over thirty years, breached its duties of honesty and fidelity.\\nII. DISCUSSION\\nAppellant brings eight points of error attacking the granting of summary judgment. We begin with a discussion of the traditional standard of review.\\nA. Standard of Review\\nThe standard of review on appeal is whether the successful movant at the trial level canned its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.\\u2014El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).\\nIn resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.\\u2014El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. When, as here, both parties move for summary judgment, each party must carry their own burden as movant, and we consider all of the summary judgment proof accompanying both motions. See City of Houston v. McDonald, 946 S.W.2d 419, 420 (Tex.App.\\u2014Houston [14th Dist.] 1997, writ denied) (citing International Ass'n of Fire Fighters v. City of Baytown, 837 S.W.2d 783, 786 (Tex.App.\\u2014Houston [1st Dist.] 1992, writ denied); Dae Won Choe v. Chancellor, Inc., 823 S.W.2d 740, 742 (Tex.App.\\u2014Dallas 1992, no writ)). On appeal, all reasonable inferences will be indulged, and all doubts will be resolved in favor of the losing party. University of Tex. Health Science Ctr. v. Big Train Carpet, Inc., 739 S.W.2d 792, 792 (Tex.1987).\\nB. Legal Duty\\nIn Point of Error No. One, Appellant urges that the trial court erred by granting Appellee's Motion for Summary Judgment. In Point of Error No. Two, Appellant argues that the granting of the Motion for Summary Judgment was error because Appellee had a legal duty to follow the instructions of Appellant.\\nIn an action for legal malpractice, the plaintiff must prove a duty owed to him by the defendant, a breach of that duty, injury proximately caused by the breach, and damages. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995). The existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence. See City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex.1995); Greater Houston Tramp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Furthermore, we review determinations of legal questions on a de novo basis. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994); Texas Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.\\u2014San Antonio 1997, no pet.).\\nAn attorney may be liable for negligence in several situations, among those, in giving an erroneous opinion or advice, in failing to give advice or opinion when legally obligated to do so, in disobeying a client's lawful instructions, in taking action when instructed not to do so, in delaying or failing to handle matters when entrusted to do so, or in failing to use ordinary care in litigation. Zidell v. Bird, 692 S.W.2d 550, 553 (Tex.App.\\u2014Austin 1985, no writ). The issue here is whether CD & M was legally obligated to obtain a valid conflicts waiver from the Roses.\\nIt is well-established that an attorney-client relationship is an agent-principal relationship. Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex.1986). Inherent in any agency relationship is the fiduciary duty an agent owes to his or her principal. Maryland Ins. Co. v. Head Indus. Coatings and Servs., Inc., 906 S.W.2d 218, 233 (Tex.App.\\u2014Texarkana 1995), rev'd on other grounds, 938 S.W.2d 27 (Tex.1996); Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 778 (Tex.App.\\u2014Fort Worth 1990, writ denied). These duties include a duty of good faith and fair dealing. Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 512 (Tex.1942). The fiduciary relationship exists between attorneys and clients as a matter of law. See Cooper v. Lee, 75 Tex. 114, 12 S.W. 483, 486 (1889). Furthermore, an agent must obey the lawful directions of its principal. Albright v. Lay, 474 S.W.2d 287, 291 (Tex.Civ.App.\\u2014Corpus Chiisti 1971, no writ); Restatement (Second) of Agency \\u00a7 385 (1957).\\nIt is undisputed that CD & M represented Appellant, thus an agent-principal relationship existed. The record before this Court demonstrates that Appellant instructed its attorneys at CD & M to obtain a waiver from the Roses. In doing so, Appellant anticipated the conflicts waiver would be a valid and enforceable one, thus protecting it from any lawsuits resulting from the dual representation. By failing to obtain a valid waiver, CD & M failed to follow the lawful instructions of its principal and thereby exposed Appellant to liability. Appellant's Points of Error Nos. One and Two are sustained.\\nHaving sustained Appellant's Points of Error Nos. One and Two, we find it unnecessary to address any remaining points of error. We reverse and remand the cause to the trial court.\\n. CD & M erroneously labeled its cross-claim as a \\\"counterclaim.\\\" For the purpose of this opinion, we will label it correctly, as a cross-claim.\"}"

tex/12374125.json

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+"{\"id\": \"12374125\", \"name\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\", \"name_abbreviation\": \"County Investment, LP v. Royal West Investment, LLC\", \"decision_date\": \"2016-12-15\", \"docket_number\": \"NO. 14-15-00207-CV\", \"first_page\": \"575\", \"last_page\": \"582\", \"citations\": \"513 S.W.3d 575\", \"volume\": \"513\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:47:12.144292+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices Jamison, Donovan, and Brown.\", \"parties\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\", \"head_matter\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\\nNO. 14-15-00207-CV\\nCourt of Appeals of Texas, Houston (14th Dist.).\\nOpinion filed December 15, 2016.\\nJeremy Daniel Saenz, Houston, TX, for Appellant.\\nRobert G. Miller, Houston, TX, for Ap-pellees.\\nPanel consists of Justices Jamison, Donovan, and Brown.\", \"word_count\": \"3429\", \"char_count\": \"21213\", \"text\": \"OPINION\\nJohn Donovan Justice\\nAppellant, County Investment, LP (\\\"County Investment\\\"), sued appellees, Royal West Investment, LLC (\\\"Royal West\\\") and Shawn Shahbazi for damages, alleging they unlawfully placed a lis pen-dens on real property owned by County Investment. The trial court granted appel-lees' motion for summary judgment on the ground that County Investment's claims are barred by the defense of absolute privilege. We affirm.\\nI. Background\\nNon-party Massood Danesh Pajooh (\\\"Pajooh\\\"), a commercial real estate developer, is a principal owner or member of several entities through which he conducts business, including another non-party, U.S. Capital Investments, LLC (\\\"USCI\\\"), and appellant County Investment. See U.S. Capital Invs., LLC v. Shahbazi, No. 02-12-00417-CV, 2014 WL 1713464, at *1 (Tex. App.-Fort Worth May 1, 2014, no pet.) (mem. op.). Appellee Shahbazi is also a commercial real estate investor and is a principal owner or member of several entities through which he conducts business, including appellee Royal West. See id.\\nIn 2010, USCI and Pajooh became involved in litigation with appellees in a Tar-rant County district court. See id. at *l-2. That suit arose out of several real estate transactions between those parties, and they asserted various claims against each other. See id. The jury's verdict and post-trial rulings resulted in Royal West being the prevailing party. See id. at *2. In July 2012, the Tarrant County district court signed a final judgment awarding Royal West $352,380 and attorney's fees of $165,000 (plus conditional appellate attorney's fees) against USCI and Pajooh, jointly and severally. See id. at *3. The Fort Worth Court of Appeals affirmed the judgment. See id. at *11.\\nUpon the district court signing the judgment, Royal West sought immediate execution. The request was supported by an affidavit of Royal West's attorney averring that he believed Pajooh would conceal assets, manipulate assets to file bankruptcy on behalf of USCI, or place assets beyond the jurisdiction of the court because he has a history of conducting fraudulent transactions to avoid creditors and is an Iranian citizen with family and business contacts in Iran. On the same day that it signed the judgment, the Tarrant County district court signed an order permitting immediate execution.\\nAccording to Shahbazi, when he/Royal West served post-judgment discovery, Pa-jooh boasted that he would prevent Shah-bazi from locating assets to satisfy the judgment. Then, in January 2013, appel-lees filed a \\\"Notice of Lis Pendens\\\" in Harris County relative to certain real property in Houston owned by County Investment and referenced the Tarrant County suit. The lis pendens was ultimately released in April 2014.\\nIn the present suit, filed in June 2014, County Investment alleges the following: (1) in early April 2013, it entered into an agreement to sell the property at issue for $956,000; (2) a commitment for title insurance was made subject to dismissal of the Tarrant County suit and release of the lis pendens; (3) appellant contacted Shahbazi who said he instructed his attorney to release the lis pendens, but it was not released at the time; and (4) in June 2013, the proposed buyer cancelled the purchase because of the lis pendens. County Investment seeks actual and punitive damages for appellees' alleged violation of Texas Civil Practice and Remedies Code Chapter 12 by filing a fraudulent lien, see Tex. Civ. Prac. & Rem Code Ann. \\u00a7 12.002(a), (b), 12.003(a)(8) (West Supp. 2016), tortious interference with contract, and slander of title. The crux of the claims is that the lis pendens was unlawful because County Investment was not a party to the Tarrant County suit and the lis pendens caused County Investment to lose the $956,000 it would have realized from the sale of the property.\\nAppellees filed a traditional motion for summary judgment, contending all claims are barred by the defense of absolute privilege, to which County Investment filed a response. The trial court signed an order granting summary judgment and ordering that County Investment take nothing. County Investment filed a motion to reconsider and motion for new trial, which was overruled by operation of law.\\nII. The Summary Judgment\\nA party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A defendant moving for traditional summary judgment must negate at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the motion and summary-judgment evidence facially establish the movant's right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex. App.-Houston [14th Dist.] 2007, no pet.). We review a summary judgment de novo. Provident Life, 128 S.W.3d at 215. We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in its favor. Id.\\nA. Law on Lis Pendens and the Absolute Privilege Defense\\n\\\"Lis pendens provides a mechanism for putting the public on notice of certain categories of litigation involving real property.\\\" Prappas v. Meyerland Cmty. Improvement Ass'n, 795 S.W.2d 794, 795 (Tex. App.-Houston [14th Dist.] 1990, writ denied). \\\"A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property, and notifying third parties that ownership of the property is disputed.\\\" In re Miller, 433 S.W.3d 82, 84 (Tex. App.Houston [1st Dist.] 2014, orig. proceeding). Texas Property Code section 12.007, governing the filing of a lis pendens, provides, in pertinent part:\\n(a) After the plaintiffs statement in an eminent domain proceeding is filed or during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.\\nTex. Prop. Code Ann. \\u00a7 12.007(a) (West 2014). Section 12.007 also prescribes requirements for the contents of the notice, recording of the notice by the clerk, and service on others. See id. \\u00a7 12.007(b)-(d) (West 2014).\\nCounty Investment seeks damages on the basis that appellees were not authorized to place a lis pendens on the property. In the motion for summary judgment, ap-pellees relied on Prappas, in which our court set forth the defense of absolute privilege to an action seeking damages for the alleged wrongful filing of a lis pendens. See 795 S.W.2d at 795-800.\\nIn Prappas, a community association had brought a separate declaratory judgment action against several homeowners seeking to preclude them from selling their homes, after heavy flooding, for nonresidential use. See id. at 795. The association did not prevail in the trial court or on appeal. See id. However, after the trial court's judgment, but right before the sale was to close, the association filed a notice of lis pendens which remained on file until the association's appeals were exhausted. See id. The lis pendens caused the buyer to cancel the purchase. See id. The homeowners filed the Prappas suit against the association for slander of title and tortious interference with contract, alleging the lis pendens was wrongful as unauthorized by statute and seeking damages. See id. The trial court rendered summary judgment in favor of the association. See id.\\nWhen affirming, we held that there is an absolute privilege defense against a suit seeking damages for placing a lis pendens even when the plaintiff alleges the lis pen-dens was wrongful as falling outside the circumstances for which a lis pendens may be filed under section 12.007(a). See id. at 795-800. We relied on two cases from sister courts and' the principles cited therein for recognizing the privilege: (1) a lis pen-dens is part of a judicial proceeding, as it has no existence separate from the litigation of which it gives notice, and communications, oral or written, in the course of a judicial proceeding are privileged; and (2) the open courts guarantee of the Texas Constitution ensures litigants access to the courts without fear of defamation actions. See id. at 796-97 (citing Kropp v. Prather, 526 S.W.2d 283, 286-87 (Tex. Civ. App.Tyler 1975, writ ref's n.r.e.); Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.-Dallas 1985, writ ref'd n.r.e.)).\\nWe further stated that there are remedies for nullifying an unauthorized lis pen-dens, including a statutory method for cancellation, or other request for an appropriate order from the trial court, with mandamus relief available if the trial court refuses to order cancellation. See id. at 795-96, 798 (citing Tex. Prop. Code \\u00a7 12.008; Olbrich v. Touchy, 780 S.W.2d 6 (Tex. App.-Houston [14th Dist.] 1989, orig. proceeding); Moss v. Tennant, 722 S.W.2d 762 (Tex. App.-Houston [14th Dist.] 1986, orig. proceeding); Helmsley-Spear of Tex., Inc. v. Blanton, 699 S.W.2d 643 (Tex. App.-Houston [14th Dist.] 1985, orig. proceeding)). In fact, we noted that \\\"impossibility\\\" of recovering damages is why courts have given a broad reading to the statute governing cancellation. See id. at 798; see also Manders v. Manders, 897 P.Supp, 972, 976-78 (S.D. Tex. 1995) (citing Prappas when holding that plaintiffs' claims for damages for tortious interference and slander of title based on filing a lis pendens were barred by absolute privilege defense under Texas law); Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex. App.-Houston [1st Dist.] 1994, no writ) (citing Prappas when stating that absolute privilege defense bars suit for damages arising from filing a lis pendens).\\nB. Analysis\\nIn two issues, County Investment proffers several reasons that Prappas does not apply in the present case and County Investment's claims are not barred by the privilege defense.\\nCounty Investment emphasizes that unlike in Prappas, in which the property owners were parties to the litigation in which the lis pendens was placed, County Investment was not a party to the judicial proceeding referenced in appellees' notice of lis pendens and the property at issue was not involved in the judicial proceeding. Thus, County Investment suggests the lis pendens affects \\\"collateral\\\" real property unrelated to any judicial proceeding and is void ab initio. County Investment cites uncontroverted summary-judgment evidence that it was not a party to the Tar-rant County suit and the property has never been owned by the parties to that suit. Therefore, County Investment maintains that appellees acted contrary to Property Code section 12.007(a) by filing the lis pendens.\\nWe note that appellees assert the lis pendens was placed on the property of County Investment in order to satisfy Royal West's Tarrant County judgment against Pajooh, a member or owner of County Investment, and USCI, of which Pajooh is also a member or owner. Regardless, assuming without deciding that such connection is insufficient to support filing of a lis pendens under section 12.007(a), the essence of County Investment's claim is that the lis pendens is not authorized under the statute. We made clear in Prappas that such a claim is barred under the absolute privilege doctrine. See 795 S.W.2d at 795-800. The issue of whether one may place a lis pendens against property owned by a non-party to a suit to enforce a judgment against a party to the suit concerns the merits of the lis pendens and does not negate application of the absolute privilege defense to a claim for damages even if the lis pendens was improper.\\nCounty Investment cites three cases to support its contention. In each case, our court held that a lis pendens was not authorized under section 12.007(a) because the property at issue was only collaterally related to the judicial claims of the party filing the lis pendens. See Olbrich, 780 S.W.2d at 7-8; Moss, 722 S.W.2d at 763; Helmsley-Spear, 699 S.W.2d at 645. However, those cases were not actions for damages for the improper filing of the lis pendens, and thus we did not address whether there was a privilege against such a suit; rather, the eases involved a request in the trial court to cancel the lis pendens and a mandamus proceeding in our court after the trial court denied the request. See Olbrich, 780 S.W.2d 6 -8; Moss, 722 S.W.2d at 762-64; Helmsley-Spear, 699 S.W.2d at 644-45. Consequently, none of these cases negate application of the absolute privilege defense to a claim for damages for placing an unauthorized lis pen-dens. In fact, the cases support appellees' position by confirming that a property owner may seek cancellation of an improper lis pendens followed by mandamus relief if a trial court refuses the request for cancellation.\\nIn this regard, County Investment contends the privilege should not apply because County Investment did not have adequate avenues for obtaining cancellation of the lis pendens under Property Code sections 12.0071 or 12.008. As County Investment asserts, section 12.0071, prescribing circumstances under which a \\\"party to an action in connection with which a notice of lis pendens has been filed,\\\" may obtain expunction of the lis pendens, see Tex. Prop. Code Ann. \\u00a7 12.0071 (West 2014), requires twenty days' notice of the hearing on the motion to expunge. See id. \\u00a7 12.0071(d). County Investment also asserts that section 12.008, governing circumstances under which \\\"a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been filed\\\" may obtain cancellation of the lis pendens, implies that the lis pendens is valid by requiring the court to protect the party seeking affirmative relief in the suit; the court must require the movant to deposit money into the court or require the \\\"giving of an undertaking\\\" to ensure payment of the judgment. See id. \\u00a7 12.008 (West 2014). County Investment suggests it lacked adequate time or resources to pursue the above-cited remedies before the lis pendens prevented County Investment's intended sale of the property, particularly because Shah-bazi kept fraudulently representing he would have the lis pendens removed.\\nEven if we construe the above-cited provisions as urged by County Investment, it expressly acknowledges that they are not the exclusive methods for obtaining cancellation of a lis pendens. In Prappas, we stated that section 12.008 is not the exclusive remedy for nullifying an unauthorized lis pendens and an affected party may seek another appropriate order from a district court, under the rationale that when the notice fails to comply with the Property Code, the remedy for removal should not be limited to that provided by the statute. See 795 S.W.2d at 796, 798 (citing Olbrich, 780 S.W.2d 6; Moss, 722 S.W.2d 762; Helmsley-Spear, 699 S.W.2d at 643; Lane v. Fritz, 404 S.W.2d 110 (Tex. Civ. App.Corpus Christi 1966, no writ); Hughes v. Houston NW Med. Ctr., 647 S.W.2d 5, 7 (Tex. App.-Houston [1st Dist.] 1982, writ dism'd)).\\nWe note that section 12.0071 was not yet enacted when we decided Prcuppas. However, we see no reason that subsequent enactment of a method for obtaining ex-punction would negate the Prappas court's recognition that statutory methods for nullifying a lis pendens are not exclusive\\u2014 particularly considering that section 12.0071 is available only to a \\\"party to an action in connection with which a notice of lis pendens has been filed,\\\" whereas section 12.008 is more broadly available to \\\"a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been filed,\\\" and even the latter is not exclusive. Compare Tex. Prop. Code Ann. \\u00a7 12.0071 with 12.008; see Prappas, 795 S.W.2d at 796, 798.\\nAnd, as appellees assert, the Government Code provides a method whereby a person who owns or has an interest in real property and believes a filed document purporting to place a lien or claim against the property is fraudulent may file a motion and obtain, even ex parte, a judicial declaration that the lien is not valid. See Tex. Gov't Code Ann. \\u00a7 51.903 (West 2013). County Investment presents no reason it could not have sought cancellation as authorized generally or under section 51.903. Nevertheless, in Prappas, we made no exception to the privilege- against a suit for damages for an unauthorized lis pen-dens based on the length of time it might take to nullify the lis pendens, the timing for nullification when compared to a potential sale of the property, or whether the party placing the lis pendens had promised its removal. See 795 S.W.2d at 795-800.\\nNext, County Investment maintains that the privilege does not apply because the lis pendens was a fraudulent court record as forbidden by the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. \\u00a7 12.002(a). County Investment cites an affidavit it presented, reflecting a lis pendens was filed against multiple properties associated with. [Pajooh] \\\"to make life miserable for [Pajooh] and for all those associated who are joint venture and partners of [County Investment].\\\" We acknowledge that Prappas involved only two of the same claims asserted in the present case\\u2014slander of title and tortious interference\\u2014and the court did not address any fraudulent-lien claim. See 795 S.W.2d at 795-800. Regardless, we conclude Prappas is also applicable to County Investment's fraudulent-lien claim. The Prappas court's reasoning for recognizing the privilege was not limited to the claims asserted in the suit or contingent on the motives of the party placing the lis pendens. See generally id. Significantly, we stated that availability of the privilege does not turn on whether the party placing the lis pendens acted in good faith and even malice would not dissolve the privilege. See id. at 799.\\nCounty Investment further cites a case in which a court of appeals upheld a jury's finding of no damages on a claim for purportedly filing a fraudulent lis pendens. See Duke v. Power Elec. & Hardware Co., 674 S.W.2d 400, 405 (Tex. App.-Corpus Christi 1984, no writ). According to County Investment, that case shows that County Investment's fraudulent-lien claim should be submitted to a jury. But, that case does not negate applicability of the privilege defense because there, is no indication that defendant raised the defense and the case was decided before the Prappas court recognized the defense. See id.\\nFinally, County Investment argues that permitting the absolute privilege defense even when the party owning the property at issue or the property itself are not part of a judicial proceeding will have a \\\"deleterious effect\\\"\\u2014any party could maliciously file a lis pendens without consequences and use the lis pendens as \\\"a sword.\\\" We reject this argument for the same reasons we have rejected County Investment's fraudulent-lien contention\\u2014application of the privilege defense does not depend on the motives of the party filing the lis pen-dens. See Prappas, 795 S.W.2d at 799.\\nIn summary, because we are bound by the precedent of Prappas, dictating that County Investment's claims for damages are barred by the defense of absolute privilege, we conclude the trial court did not err by granting summary judgment on all of the claims. We overrule both of County Investment's issues.\\nWe affirm the trial court's judgment.\\n. We recite the facts regarding the Tarrant County suit based on the appellate court opin ion in that case and uncontroverted summary-judgment evidence in the present case.\\n. The parties present conflicting summary-judgment evidence regarding events between the filing of the lis pendens and the filing of the present suit and the opposing party's motives, which evidence is not germane to' our disposition. But, in essence, according to County Investment's evidence, Pajooh informed Shahbazi that the lis pendens was an improper attempt to force a settlement of the Tarrant County suit and demanded the lis pendens be released. Shahbazi avers that (1) shortly after the court of appeals affirmed the Tarrant County judgment (May 2014), Pajooh began proposing settlement options that would result in release of the judgment, which Pajooh needed to consummate another transaction, and (2) when Shahbazi declined a \\\"meager\\\" monetary offer, Pajooh immediately had appellees served with the present suit.\"}"

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+"{\"id\": \"1977609\", \"name\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\", \"name_abbreviation\": \"Thomas v. Hawpe\", \"decision_date\": \"1904-03-26\", \"docket_number\": \"\", \"first_page\": \"311\", \"last_page\": \"318\", \"citations\": \"35 Tex. Civ. App. 311\", \"volume\": \"35\", \"reporter\": \"Texas Civil Appeals Reports\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:34:08.843755+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\", \"head_matter\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\\nDecided March 26, 1904.\\n1.\\u2014Administration\\u2014Final Account.\\nAn administrator\\u2019s account showed a balance in his hands of $304.81, and stated \\u201cthere is unpaid audited amounts due to parties who have not applied for their pro rata aggregating $269.15, leaving a balance to pay costs of final settlement and clerk\\u2019s costs, etc., $35.36.\\u201d In his affidavit thereto the administrator stated that \\u201cthe within and foregoing is a true and correct exhibit of said estate so far as the same has come to his hand or knowledge.\\u201d It did not state, other than as above, what the indebtedness of the estate amounted to, nor set out the names and residences of the creditors entitled to the $269.15, nor ask that the administrator be discharged. It was indorsed on the back \\u201cPinal account,\\u201d and notice was given as in case of filing a final account. The order of the court thereon mentioned it as a final account, but merely approved it and ordered it of record, the form of order required by the statute (Rev. Stats., art. 1876) in approving an annual exhibit. No order was made discharging the administrator. Held not a final account such as would be res adjudicata against the claim of the heirs for a restatement of the account made when the administrator asked for an order of final discharge twenty-two years later.\\n2\\u2014Same\\u2014Matters Not Included in Account.\\nEven if the account was final so as to bar further inquiry into the matters set out and specified therein, it would not be final as to property accidentally or fraudulently omitted therefrom.\\n3. \\u2014Same\\u2014Limitations and Stale Demand Not Applicable.\\nThe action of the administrator in filing a supplemental account twenty-two years later and asking a final discharge recognized the administration as still pending, but, aside from this, the statute provides that \\u201cwhere letters testamentary or of administration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate when it does not appear from the record that the administration has been closed.\\u201d Rev. Stats., art. 1882.\\n4. \\u2014Same\\u2014Annual Accounts Not Final.\\nIn a contest in the probate court between the heirs and the administrator the approval by that court of the annual exhibits of the administrator showing the collection and disbursement of funds does not have the force of a judgment so as to preclude from contesting the same, and especially is this true when the heirs charge him with fraud.\\n5. \\u2014Same\\u2014Costs.\\nWhile the probate court has the power to adjudge the costs in probate proceedings (Rev. Stats., art. 2251), the district court has not the power, in such a cause brought to it for trial de nova, to adjudge the costs which might further accrue in the appellate courts in anticipation of an appeal from its judgment.\\n6. \\u2014Same\\u2014Order Adjudging Costs Held Final.\\nWhere the county probate court, upon reinstating an administration case, adjudged the costs accruing prior to its dismissal against the contestants, such order became final at the end of the term, and, no specific complaint being made of it, it was not annulled by an appeal taken by the administrator to the district court.\\n7. \\u2014Same\\u2014Creditors\\u2014Abandonment of Claims\\u2014Laches.\\nWhere creditors of an insolvent estate, after notice given by the administrator, have failed to assert their claims for over twenty-five years, it will be conclusively presumed, in a settlement between the heirs and the administrator, that such creditors have abandoned their claims by reason of their laches.\\n8. \\u2014Same\\u2014Charging Administrator with Interest.\\nWhere an administrator appears to have applied funds of the estate to his own use, lending them out at good rates, he was properly charged on final settlement with the heirs with interest at the highest legal rate.\\n9. \\u2014Same\\u2014Commissions\\u2014Fraud.\\nWhere the court found that an administrator had wrongfully and knowingly failed to account for certain moneys of the estate, it properly held that he was not entitled to commissions thereon.\\nAppeal from the District Court of Dallas. Tried below before Hon. Richard Morgan.\\nR. D. Coughanour and Henry & Henry, for appellant.\\nWm. P. Martin and Wm. P. Ellison, for appellees.\", \"word_count\": \"4088\", \"char_count\": \"23579\", \"text\": \"BOOKHOUT, Associate Justice.\\nOn the 14th day of August, 1863, T. C. Hawpe departed this life intestate, in Dallas County, leaving an estate consisting of both real and personal property, situated principally in said county. E. A. Hawpe was his surviving widow.\\nOn the 28th day of September, 1863, letters of administration on the estate of said decedent were granted to Mrs. E. A. Hawpe, survivor, and W. H. Thomas, now appellant herein. They qualified in terms of the law, and on the 29th day of September, 1863, filed their inventory of the property of said estate, which said inventory was on the day following approved by the court. On the 27th day of October, 1863, E. A. Hawpe and W. H. Thomas, as coadministrators of said estate, filed their final account, and on the same day the said W. H. Thomas moved the court that said account be taken as his final account, and that he be discharged, which was accordingly done by an order of the court made on the 30th day of November, 1863, and in the same order and by the terms thereof, Mrs. E. A. Hawpe, as administratrix of said estate of T. C. Hawpe, was required to come forward and give a new bond as such administratrix, which she did and proceeded with the administration. On the 26th day of June, 1866, Mrs. E. A. Hawpe, administratrix, having filed her final account and petition to the court to be discharged from further responsibility on account of said administration, prayed the court to appoint the said W. H. Thomas administrator d\\u00e9 bonis non to said succession, all of which was accordingly done. On the 26th day of June, 1866, said W. H. Thomas, administrator, filed his inventory and appraisement of said estate, which was approved by the court on said day. The said W. H. Thomas then proceeded to administer said estate, filing annual exhibits thereof for the years 1867, 1869, 1872, and on the 6th day of September, 1877, he filed his account, styled \\\"Final account,\\\" which said final account was, after due and legal notice thereof, approved by the court on the 20th day of October, 1877, but no order was made discharging said administrator. Said final account of said administrator shows that said estate was insolvent, and that said administrator, in obedience to an order of the district court sitting in probate, made upon and in approval of the report of E. G. Bower, auditor, filed February 1, 1873, paid the sum of 25 cents on each dollar of the indebtedness of said estate, and that there remained in his hands the sum of $269.15, the pro rata of 25 cents on the dollar due on established claims belonging to creditors of said estate who had not called for their money, and that there remained in his hands a further sum of $35.36, with which to pay cost of final settlement, clerk's cost, etc. On September 25, 1899, J. E. Hawpe, W. L. Hawpe, G-. T. Hawpe, Mrs. Elizabeth McPherson, joined pro forma with her husband, J. M. McPherson; Mrs. Matilda Thompson, joined pro forma with her husband, Dallas Thompson, and G. T. Hale as next friend of Herman Hale, appellees herein, claiming to be the heirs at law of the said T. 0. Hawpe, deceased, filed a paper in the county court on the probate side of the docket, styled and indorsed \\\"Plaintiffs' original petition,\\\" in which they charge that W. H. Thomas, now appellant herein, as administrator of the estate of decedent, held in his possession the sum of $269.15 belonging to said estate that should be paid over to them with legal interest thereon from the 6th day of September, 1877, the date of the filing of his said final account, and they pray the court to make an order requiring him to pay over to them said sum of money arid interest, together with the cost of their said application. On the 1st day of November, 1899, appellant filed a supplemental account referring to his said final account filed September 6, 1877, and approved October 20, 1877, but made no change therein; he does, however, show in said supplemental account that since the filing and approval of said final account he had made pro rata payment of 25 cents on the dollar of five of the established claims mentioned and approved therein, amounting to $177.75, thus leaving $91.40 to be paid on established claims included in said final account, and $35.36 for payment of the probable cost of final settlement.\\nOn this last account citation was issued by the clerk as required by law in cases where final accounts are filed, citing all parties interested in the estate to appear and show cause why the administrator should not be discharged. On November 27, 1899, the contestants filed a pleading styled \\\"Contestants' petition,\\\" which by its terms purports to be an answer to the account filed by the administrator on the 1st day of November, 1899, and for the first time specifically demands a restatement of the administrator's said final and of his previous accounts and contests the right of the administrator to be discharged.\\nThe case first came up for hearing in the probate court upon appellant's demurrers, filed May 18, 1900, to contestants' (appellees') second amended answer. Said demurrers were overruled, and appellant appealed from said ruling to the district court, where he was again overruled, and on appeal to the Court of Civil Appeals the case was dismissed for want of jurisdiction, the court holding that the order sought to be appealed from was not a final order. On May 18, 1901, A. B. Flanary was appointed auditor, and on November 1, 1901, filed his report, which was excepted to by all parties. On July 29, 1902, the case was dismissed for want of prosecution, at contestants' cost. On August 2, 1902, said cause was reinstated, and contestants were charged with all costs to said date.\\nOn October 4, 1902, the case was tried in the county court sitting for probate, etc.,, upon contestants' third amended demurrers and pleas, filed February 24, 1902, and contestants' and the administrator's ex ceptions to -the auditor's report, and resulted in a judgment for contestants against W. H. Thomas in the sum of $31,385.87, from which judgment the said W. H. Thomas appealed to the district court.\\nOn April 3, 1903, the case came up on appeal to the district court, and was tried de nova, on the same pleadings as in the county court; a jury was waived, and the matters of fact as well as of law were submitted to the court, and resulted in an order overruling the administrator's demurrers, and in a restatement of the administrator's account, and judgment for $16,340.31 in favor of contestants and for costs. To all of which rulings and judgment of the court the administrator excepted and perfected his appeal to this court.\\nOpinion.\\u2014The first assignment challenges the correctness of the action of the trial court in overruling the administrator's general demurrer to the pleadings of the contestants. It is contended by appellant that the order of the county court of October 30, 1877, approving his account of September 6, 1877, and ordering the same of record is res adjudicata, and can not again be inquired into in this proceeding. The correctness of this contention depends upon whether or not said account was in fact a final account, and whether or not it was so considered and adjudicated by the court when the order was made approving the same and ordering it of record. This account is styled on the back thereof \\\"Final account.\\\" It shows a balance in the hands of the administrator of $304.51, and states \\\"there are unpaid audited amounts due to parties who have not applied for their pro rata aggregating $369.15, leaving a balance to pay costs of final settlement and clerk's cost, etc., $35.36.\\\" In his affidavit to said account the administrator states that \\\"the within and foregoing is a true and correct exhibit of the said estate so far as the same has come to his hand or knowledge.\\\" It does not state what the indebtedness of the estate amounts to. The only direct mention of any existing indebtedness is contained in the recitation above set out. It does not state the names of the creditors and their residences, entitled to the $369.15, and \\\"who have failed to apply for their pro rata.\\\" In this respect it fails to set out the names of the persons entitled to receive such portions of the estate. This account does not ask that the administrator be discharged. \\u00a1Notice was given as is required in cases of filing a final account. The order made by the court reads: \\\"\\u00a1Now comes W. H. Thomas, administrator, and presents to the court his final account duly verified under oath showing the condition of said estate (the balance due said \\u2014 being $-), and it appearing to the court that due and legal notice of the filing same has been given and no objection thereto being made, said account is hereby approved and ordered of record.\\\"' This is the form of the order required by the-statute to be made in approving an annual exhibit, if the court upon examination finds the same to be correct. Batts' Civ. Stats., art. 1876.\\nHad the court considered said account the final account of the ad ministrator, it would have been its duty \\\"to audit and settle the same.\\\" Batts' Civ. Stats., art. 2197.\\nThis the court, it seems, did not do, but in the language of his order he approved the same and ordered it of record. We are of the opinion that the facts recited do not show that the court considered or adjudicated the account of the administrator filed September 6, 1877, as a final account. Ho order was ther made discharging the administrator. We conclude the trial court did not err in overruling the appellant's demurrer to contestants' pleadings. However, if we are in error in this holding it seems clear the order is not final so as to bar further inquiry into matters not set out in the account and therein specified. It would not be final as to property accidentally or fraudulently omitted therefrom. Blackwell v. Blackwell, 86 Texas, 207; McAffee v. Phillips, 25 Ohio St., 374; Griffith v. Gody, 113 U. S., 89; Woerner, Am. Law of Admrs., sec. 506.\\nThe pleadings of the contestants specifically charge appellant with having as administrator collected certain moneys on claims in his hands-belonging to said estate which he failed to charge himself with in said account, but wrongfully and fraudulently appropriated' and converted, to his own use. Among other matters it is charged that he collected from O. L. Bailey on his note belonging to said estate $1000 which he-appropriated to his own use, also on the note of M. L. Swing he collected for said estate $171.39, which he failed to charge himself with. They further charge him with having collected other sums belonging to the estate which he failed to account for. These matters not appearing in the account of September 6, 1877, would not be concluded by the order approving the same, even were we in error in holding that account was not a final account. The demurrer being general, if the contestants were entitled to recover for any of the matters set up in their pleadings, the same was properly overruled. After the filing of the account of September 6, 1877, no further action was taken by the administrator in the probate court until Hovember 1, 1899, on which day he filed what is termed \\\"Administrator's supplemental account.\\\" In this account he charges himself with $304.51, the amount shown to be due certain creditors and court costs in his account of September 6, 1877. He then credits himself with $177.75, the amount paid out by him since his last report, to five different creditors and exhibits vouchers showing such payment. This payment represents 25 per cent of the face value of these claims. This account shows that there are five other creditors holding approved items, whose pro rata allowance amounts to $91.40 and gives the names of the creditors and states that \\\"no one comes to claim them.\\\" This account shows a balance in the hands of the administrator of $126.76. It gives the names of the contestants as the persons entitled to the residue of the estate and states the residence of each.\\nThe administrator in filing this account recognized the administration as still pending. But independent of this fact, article 1882 of the Bevised Statutes provides that \\\"where letters testamentary or of admin istration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate when it does not appear from the record that the administration thereof has been closed.\\\" The record fails to show that the administration has been closed. This being true, and the contestants being the heirs of the intestate, T. C. Hawpe, deceased, are entitled under this statute to compel a settlement thereof. The administration not having been closed, the heirs were not barred by limitation or by reason of their action being a stale demand. Main v. Brown, 72 Texas, 505; Branch v. Hanrick, 70 Texas, 733.\\nIt seems to be settled that in a contest of this character the approval by the probate court of the annual exhibits of the administrator showing the collection and disbursements of funds does not have the force of a judgment so as to preclude the heirs from contesting the same. And especially is this true when, as in this case, the heirs charge the administrator with fraud. Ingram v. Rogers, 3 Texas, 465; Walker v. Kerr, 7 Texas Civ. App., 498, 37 S. W. Rep., 399; Birdwell v. Kaufman, 25 Texas, 191; Hefflefinger v. George, 14 Texas, 581; Sabrinos v. Chamberlain, 76 Texas, 624, 629; Hagerty v. Scott, 10 Texas, 525; Murphy v. Menard, 11 Texas, 675, 677.\\nIt is insisted that the judgment adjudges against the administrator all costs of court in the administration, as well as costs on appeal in this court and the Supreme Court, should a writ of error be granted by that court. The court had the power to adjudge the costs. Batts' Civ. Stats., art. 3351. The district court had no power to adjudge the costs which might accrue in the appellate courts in anticipation of an appeal from its judgment. We construe the judgment as adjudging against the administrator such costs as the district court had the power to charge him wiih. The judgment, as we construe it, adjudges against the administrator -the costs that had accrued prior to the rendition of its judgment. However, we are of the opinion that the district court, in taxing the administrator with the costs accruing in the contest prior to July 39, 1903, erred. On that date the contest was dismissed for want of prosecution. On motion of contestants it was. reinstated on August 3, 1903. Hpon reinstating the case the county court adjudged the costs accruing prior to its dismissal against contestants and entered an order to that effect. This was an unconditional order, and at the end of that term of court became final. Fenn v. Railway Co., 76 Texas, 380. The court had the power to make this order and it has not been set aside or appealed from. Rev. Stats., art. 2255. So far as the record shows* the contestants dp not complain of this order. It was not annulled by the appeal taken by the administrator to the district court. This error does not require a reversal of the judgment, as this court has authority to reform the judgment in this respect. \\\" \\u2022\\nIt is contended that the court erred in decreeing that the money found to be in the hands of the administrator on a restatement of his account should be paid to the heirs of the' intestate, when the record shows that there are creditors of the estate whose claims are still subsisting, and that the estate is insolvent. The, record shows that on September 6, 1877, there were a large number of creditors whose claims had been established against this estate, and that the estate was insolvent. None of these creditors appeared to contest that account, although notice was duly given. Nor did any of the creditors appear and contest the final account, filed November 1, 1899. So far as the record shows no action has been taken by any one of these creditors, seeking a collection of his claim, since the administrator's account of September 6, 1877, was approved by the court. None of them has joined in, or intervened in, this contest, and not one is here complaining. For over twenty-five years they have remained inactive and acquiesced in the action of the administrator, and it must be conclusively presumed they have abandoned their claims by reason of their loches. As before stated, the administrator, in his account filed November 1, 1899, names the contestants as the persons entitled to the residue of the estate.\\nIt is insisted that the court erred in charging the administrator with interest. The court found that on September 6, 1877, the administrator had in his hands belonging to the estate $4293.16, and charges him with interest on this sum at the rate of, 12 per cent per annum from date to April 11, 1892, and at the rate of 10 per cent per annum from April 11, 1892, to date of trial, April 2, 1903. The interest charged is the highest legal rate allowed by the statute. It seems to be well settled that if a trustee having moneys in his hands knowingly applies it to his own use, or in his trade, he will be charged interest thereon at the highest legal rate. Chifflet v. Willis & Bro., 74 Texas, 245; Hill on Trustees, star page 374 et seq.; 3 Williams on Exs., 7 ed., pp. 404, 405.\\nThe administrator denied that he loaned funds belonging to the estate. He says he loaned his own money, and loaned it at \\\"good rates,\\\" at what would not be called \\\"high rates.\\\" We are not prepared to say, in view of this evidence, there was error in charging him with the highest legal rate of interest on the moneys found by the court on a restatement of his account to be in his hands belonging to the estate. Nor did the court err in refusing to allow the administrator commissions on moneys in his hands belonging to the estate. The court having found that the administrator wrongfully and knowingly failed to account for said sums, he was not entitled to commissions thereon. Schouler on Exrs. and Admrs., sec. 543, p. 640.\\nIt is contended that the trial judge, erred in charging the administrator with $840 collected by him upon the note of O. L. Bailey. It is insisted (1) that the approval of the account of September 6, 1877, is res adjudicaba of this matter; and (2) that this additional charge can not be found except upon the clearest proof, and that the evidence is insufficient to support the charge. The first contention is disposed of by the remarks under the first assignment. There is evidence to support the court's conclusion that this amount was received by the administrator, that it belonged to the estate of the intestate, and that he has failed to account for the same. In deference to the finding of the trial court we conclude that on September 6, 1877, the administrator had, as administrator, cash on hand belonging to the estate in the amount found by the trial court, and that he has failed to account for the same.\\nThe judgment will be reformed so as to charge the contestants with all costs accruing in this contest prior to July 29, 1902, including costs of this appeal. All other costs are taxed against the appellant.\\nFinding no reversible error in the record the judgment is affirmed.\\nReformed and affirmed.\\nWrit of error refused.\"}"